Exhibit 4.15
CONDITIONAL ASSIGNMENT
OF PROJECT DOCUMENTS
THIS AGREEMENT is made on the 12th March 1998,
BETWEEN:
(1) NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED, a public limited company
duly organized and validly existing under the laws of the Kingdom of
Thailand having its registered office at No. 9, UM Tower, 16th Floor,
Kwaeng Suanluang, Khet Suanluang, Bangkok, Thailand (the "Assignor");
(2) The financial institutions whose names are listed in Exhibit 1 (the "Thai
Lenders") represented by THE INDUSTRIAL FINANCE CORPORATION OF THAILAND, a
corporation duly organized and validly existing under the laws of the
Kingdom of Thailand having its registered office at No. 1770 New Petchburi
Road, Bangkok 10320, as Facility Agent for the Thai Lenders (the "Thai
Facility Agent");
(3) THE CHASE MANHATTAN BANK, a company duly organized and validly existing
under the laws of the State of New York, having its registered office at
450 West 33rd Street, New York, New York, U.S.A., having its branch office
in Bangkok, Thailand, located at 20 North Sathorn Road, Silom, Bangrak,
Bangkok 10500, acting as the Trustees and the Debenture Trustee (as
defined below);
AND
(4) THE CHASE MANHATTAN BANK as collateral agent (the "Collateral Agent").
WHEREAS:
A. The Assignor and the Thai Lenders entered into a credit facility agreement
dated 27 September 1995, (the "CFA") whereunder credit facilities of Baht
3,300,000,000 (Three Thousand and Three Hundred Million Baht) and
US$308,000,000 (Three Hundred and Eight Million United States Dollars)
have been granted;
B. The Assignor intends to procure financing from abroad by having NSM Steel
Company, Ltd. ("NSM Cayman"), a company incorporated under the laws of the
Cayman Islands and in which the Assignor holds 100 percent of its shares,
and NSM Steel (Delaware) Inc., a company incorporated under the laws of
the State of Delaware, the United States, a wholly owned subsidiary of NSM
Cayman (hereinafter collectively referred to as the "Note Issuers"),
acting as agent of NSM Cayman pursuant to an agency agreement, issue
US$452,500,000 of indebtedness comprised of (a) US$249,000,000 (aggregate
principal amount at maturity) of 12% Senior Mortgage Notes Due 2006 (the
"Senior Notes") which will be issued pursuant to an indenture dated as of
1 March 1998 (the "Senior Note Indenture", among the Note Issuers, the
Assignor and The Chase Manhattan Bank ("Chase"), as trustee (the "Senior
Notes Trustee"), (b) the US$203,500,000 (aggregate
principal amount at maturity) of 12 1/4 Senior Subordinated Mortgage Notes
Due 2008 (the "Senior Subordinated Notes" and together with the Senior
Notes, the "Notes"), which will be issued pursuant to an indenture dated
as of 1 March 1998 (the "Senior Subordinated Note Indenture", and together
with the Senior Note Indenture, the "Indentures") among the Note Issuers
and Chase, as trustee (the "Senior Subordinated Notes Trustee" and
together with the Senior Notes Trustee, the "Trustees"), with warrants to
purchase 74,476,809 (Seventy Four Million Four Hundred Seventy Six
Thousand Eight Hundred and Nine) ordinary shares of the Assignor, and (c)
a private placement consisting of US$53,133,016 (aggregate principal
amount at maturity) of 12 3/4% Subordinated Second Mortgage Debentures Due
2009 (the "Debentures") which will be issued pursuant to an indenture
dated as of 1 March 1998 (the "Debenture Indenture"), among the Note
Issuers, the Assignor and Chase, as trustee (the "Debenture Trustee") and
64,417,180 ordinary shares of the Assignor;
C. The Assignor has entered into an amendment to the CFA (the "CFA
Amendment") with the Thai Lenders dated 12 March 1998 for the amendment of
certain terms and provisions to facilitate the Assignor's additional
financing (the CFA and the CFA Amendment, collectively, the "Bank Credit
Facility"), including but not limited to, an agreement the Assignor
entered into with the Thai Lenders, the Trustees and the Debenture Trustee
dated 12 March 1998 to set forth arrangements for the Thai Lenders and
holders of the Notes and the holders of the Debentures to share certain
collateral (the "Security Sharing Agreement").
D. Pursuant to the terms of the Security Sharing Agreement, the Assignor, the
Thai Lenders, the Thai Facility Agent, the Trustees, the Debenture
Trustee, and the Collateral Agent agree to enter into this Agreement as
security for the Obligations (as defined hereunder).
IT IS AGREED as follows:
1. DEFINITIONS
1.1 Except as otherwise provided herein, words and expressions in this
Agreement shall have the same respective meanings as described in the Bank
Credit Facility, the Indentures, the Debenture Indenture, and the Security
Sharing Agreement:
"Additional Project Document" has the meaning ascribed to it in Clause
3.3;
"Conditional Assignment of Additional Project Document" means a
conditional assignment agreement substantially in the form of this
Agreement in relation to any Additional Project Document;
"Counterparty" means any person other than the Assignor who is a party to
any Project Document or Additional Project Document;
"Designee" means, in relation to any Project Document, any person who the
Collateral Agent has designated as a substitute party to such Project
Document under the terms and
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subject to the conditions of this Agreement (and all references herein to
the Collateral Agent shall be deemed to include the Designee unless the
context requires otherwise);
"Obligations" means all present and future obligations and all other
liabilities of the Assignor under the Bank Credit Facility, the Notes, the
Indentures, the Debentures, the Debenture Indenture and the Security
Sharing Agreement;
"Project Documents" means each of the contracts, agreements and documents
listed in Exhibit 4 and all Additional Project Documents;
"Relevant Agreement" means any of the Project Documents which is the
subject of a Transfer Notice; and
"Transfer Notice" means a notice of transfer and novation pursuant to
Clause 2 substantially in the form set out in Exhibit 3 duly completed and
signed by the Collateral Agent or the Designee.
1.2 Any reference in this Agreement to:
(i) any agreement or document shall be read and construed as a reference
to such agreement or document as the same may have been or may from
time to time be, amended, varied, novated or supplemented; and
(ii) any party shall be construed so as to include its respective
successors, permitted assigns and transferees in accordance with its
respective interests.
1.3 Words denominating the singular include the plural and vice versa.
1.4 Section headings are for reference only.
2. ASSIGNMENT
2.1 To secure the due and punctual payment and performance by the Assignor of
the Obligations, the Assignor hereby assigns and transfers by way of
novation to the Collateral Agent for the benefit of the Thai Lenders, the
holders of the Notes and the Debenture holders (as a second priority
lien), all of its rights, title, interest and obligations (subject to
Clause 4.2) in and to the Project Documents as listed in Exhibit 4 and the
Collateral Agent hereby accepts all such rights, title, interests and
obligations provided that such assignment and transfer is conditional and
shall only become effective with respect to any Project Document upon the
delivery of a Transfer Notice to the Assignor and the relevant
Counterparty, specifying that such assignment and transfer (by way of
novation) has become effective and enforceable with respect to such
Project Document in accordance with the terms of this Agreement provided
further that no such Transfer Notice shall be delivered by the Collateral
Agent unless it has received a Notice of Actionable Default (as defined in
the Security Sharing Agreement) and the provisions of Section 4 of the
Security Sharing Agreement have been complied with (including without
limitation, Section 4.2(b) thereof).
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2.2 Notwithstanding the conditional assignment contained in Clause 2.1, the
Assignor shall at all times remain liable to perform all of its
obligations under the Bank Credit Facility, the Indentures and the
Debenture Indenture, and in respect of each Project Document and
Additional Project Document, remain liable to perform all of its
obligations under that Project Document or Additional Project Document, as
the case may be.
2.3 Nothing herein contained shall constitute or be deemed to constitute a
novation or settlement of any obligations (including, without limitation,
the Obligations) or indebtedness, nor shall it be construed as an
assumption or acceptance by the Thai Lenders, the Trustees or, as the case
may be, the Debenture Trustee (as a second priority lien) of any
obligation of the Assignor under the Project Documents and Additional
Project Documents other than as specifically assumed following delivery of
a Transfer Notice in accordance with the terms hereof.
3. PERFECTION OF ASSIGNMENT
3.1 Immediately upon the execution of this Agreement, the Assignor shall give
notice to all Counterparties to each Project Document substantially in the
form set out in Part A Exhibit 2 and shall use its reasonable efforts to
procure that as soon as practicable the Counterparties' consent to the
assignments and the right to substitution by way of transfer and novation
contained herein and acknowledge receipt of notice to the Collateral Agent
in the form set out in part B of Exhibit 2, or in such other form as may
be reasonably acceptable to the Collateral Agent.
3.2 Immediately upon the execution of this Agreement the Assignor shall submit
to the Collateral Agent a certified copy of each Project Document listed
herein (and upon reasonable request from the Collateral Agent provide a
certified copy of any other documents relating to such Project Documents).
3.3 Immediately upon the execution of any contract, agreement or document
entered into by the Assignor following the date of this Agreement in
respect of the Assignor's mill project which replaces a Project Document
(each, an "Additional Project Document") the Assignor irrevocably and
unconditionally undertakes to:
(a) notify the Collateral Agent that an Additional Project Document has
been executed and deliver to the Collateral Agent such number of
certified copies of the Additional Project Document as the
Collateral Agent may reasonably request; and
(b) enter into with the Thai Lenders, the Trustees, the Debenture
Trustee and the Collateral Agent a Conditional Assignment of
Additional Project Document in respect of the Additional Project
Document, notify the relevant Counterparty of the same and of the
agreements contained in Clause 2.1 thereof, and use its reasonable
efforts to procure that as soon as practicable such Counterparty
acknowledges the same and consents to the assignments and the right
to substitution by way of transfer and novation contained therein in
the form referred into in Clause 3.1 or such other form as may be
reasonably acceptable to the Collateral Agent.
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3.4 The Assignor shall comply with the terms set out in each of the notices
given pursuant to this Clause 3 and shall not take or omit to take any
action the taking or omission of which might otherwise result in the
material alteration or impairment of any of its Obligations or the rights
of the Thai Lenders, the Trustees or, as the case may be, the Debenture
Trustee (as a second priority lien) under this Agreement.
3.5 If the Assignor defaults in duly performing its obligations under any
Project Document, the Thai Lenders, the Trustees or the Debenture Trustee
may in its or their discretion, and without any obligation to do so,
without prejudice to its or their other rights, do all things and pay all
monies necessary or expedient in the opinion of the Thai Lenders, the
Trustees or the Debenture Trustee to make good or in attempting to make
good such default to the satisfaction of the Thai Lenders, the Trustees or
the Debenture Trustee and, as a separate and independent obligation, the
Assignor shall indemnify the Thai Lenders, the Trustees or the Debenture
Trustee on demand against all losses, claims, costs and expenses
(including, without limitation, legal expenses) of any kind incurred or to
be incurred by it or them in connection with, or arising out of or
relating to any such default of the Assignor and any action taken by it or
them pursuant to this Clause.
4. TRANSFER NOTICE AND ENFORCEMENT
4.1 By the delivery of a Transfer Notice to a Counterparty and to the Assignor
with respect to a Project Document, either the Collateral Agent (subject
to the terms of the Security Sharing Agreement) or a Designee may be
substituted as a party to that Project Document in place of the Assignor
by the assignment under this Agreement to either of them of the rights,
title, interest and obligations of the Assignor under the relevant Project
Document. The substitution of the Collateral Agent or a Designee shall
immediately become effective and binding upon the parties to the Project
Document upon the date of the Transfer Notice.
4.2 Upon the delivery of a Transfer Notice with respect to any particular
Project Document, the Collateral Agent or the Designee, as the case may
be, shall acquire all rights, title and interest in the relevant Project
Document identical to those of the Assignor and shall assume all of the
Assignor's obligations to the Counterparty under the relevant Project
Document. Following the delivery of a Transfer Notice, the Assignor shall
cease to be entitled to exercise or enjoy such rights, title and interest
but shall remain, jointly and severally with the Collateral Agent or the
Designee, as the case may be, liable to perform such obligations and give
all assistance to the Collateral Agent or the Designee, as the case may
be, to facilitate the performance of its obligations under the Project
Documents and its operation of the project on an ongoing basis. Following
the delivery of a Transfer Notice, all references in the relevant Project
Document to the Assignor shall be deemed as references to the Collateral
Agent or the Designee, as the case may be.
4.3 At any time following the delivery of a Transfer Notice (which may only be
done pursuant to Clause 2.1 of this Agreement) (and until such time as
such Transfer Notice is rescinded in accordance with the terms of the
Security Sharing Agreement), the Collateral Agent or, as the case may be,
any Designee, may, with respect to any Project Document:
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(a) exercise fully any rights and/or perform any obligations of the
Assignor under such Project Document in all respects as though
originally named as a party in the relevant Project Document; and
(b) otherwise put into force and effect all rights, powers and remedies
available to it by law or otherwise as transferee of all or part of
the Assignor's rights, and obligations under each Project Document,
which are transferred pursuant to this Agreement and the Transfer
Notice.
5. CONTINUING SECURITY
5.1 This Agreement and the assignments and transfer herein contained shall be
in addition to, independent of and without prejudice to, and shall not be
in substitution for, any other rights, security, guarantee, indemnity or
suretyship now held or which may hereafter be held by the Thai Lenders,
the Trustees, or, as the case may be, the Debenture Trustee (as a second
priority lien) for the due payment, performance and discharge by the
Assignor of the Obligations.
5.2 This Agreement and the assignments and transfer herein contained is a
continuing security and shall remain in full force and effect
notwithstanding the liquidation, bankruptcy or other incapacity of the
Assignor or any amalgamation or reconstruction of the Assignor or any
change in the constitution thereof or any or all indebtedness by whatever
reason (other than by full performance and discharge of the Obligations)
or other matter or thing whatever.
5.3 If after the date of this Agreement:
(a) any settlement or discharge of any or all of the Obligations of the
Assignor is nullified for any reason whatsoever; and/or
(b) an order or judgment is made against the Thai Lenders, the Trustees
or, as the case may be, the Debenture Trustee or the holders of the
Notes or the Debentures under Section 237 of the Civil and
Commercial Code of Thailand (or any modification or re-enactment
thereof) or under any of Sections 113, 114 and 115 of the Bankruptcy
Act of Thailand (or any modification or re-enactment thereof)
directing Thai Lenders, the Trustee or, as the case may be, the
Debenture Trustee, to pay any sum received or held by it from the
Assignor or any other person to settle all or part of the debt of
the Assignor to an official receiver, a liquidator or a creditor of
the Assignor;
then the returned monies, losses, damages, costs and expenses of the Thai
Lenders, the Trustees or, as the case may be, the Debenture Trustee,
arising as a result of such nullified settlement or discharge, and/or (as
the case may be) the sum paid by it pursuant to such order or judgment
shall be recoverable from the Assignor on demand.
6. FURTHER ASSURANCES
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6.1 The Assignor shall, whenever reasonably requested by the Collateral Agent
and at the cost and expense of the Assignor, duly and promptly sign, seal,
execute and deliver such deeds, instruments, notices and documents,
(including, further legal or other transfers or assignments) and do such
acts and things as may reasonably be required by the Collateral Agent for
the purpose of maintaining, perfecting, protecting, defending, enforcing
or securing the obligations of the Assignor hereunder and the
encumbrances, including the right to substitution by way of transfer and
novation, arising under or constituted by or pursuant to this Agreement
(or purported to be created by or constituted by or pursuant to this
Agreement) or for facilitating the exercise, or, as the case may be,
realization thereof and the exercise of all other powers, authorities and
discretion vested in the Collateral Agent.
6.2 The Collateral Agent shall, without prejudice to other rights, powers and
privileges under this Agreement, be entitled (but shall be under no
obligation), at any time and as often as it may reasonably consider to be
necessary, to take any such action and/or demand additional documents and
instruments from the other party (in which case the Assignor undertakes to
use its best endeavors to procure such documents or instruments from such
person) for the purpose of protecting the rights constituted by this
Agreement.
6.3 The Assignor hereby agrees to indemnify the Collateral Agent on demand
against any and all costs, losses, expenses or liabilities incurred by or
imposed on Thai Lenders, the Thai Facility Agent, the Trustees, the
Debenture Trustee or the Collateral Agent in or about the perfection
and/or protection of the rights and/or security interest referred to in
this Clause 6.
7. FILINGS, RECORDS, INSPECTION
Except as otherwise permitted hereunder, the Assignor shall not file or
suffer to be on file, or authorize or permit to be filed or to be on file,
in any jurisdiction, any other encumbrance with respect to the Project
Documents in which the Collateral Agent is not named as the sole first
secured party for the benefit of the Thai Lenders and the Trustees and the
sole second secured party for the benefit of the Debenture Trustee. The
Assignor shall permit representatives of the Collateral Agent upon
reasonable notice, at any time during normal business hours to inspect and
make abstracts from its books and records pertaining to the Project
Documents.
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8. REMEDIES AND WAIVERS
8.1 Any receipt, release or discharge of the assignment provided by, or of any
liability arising under, the Project Document may be given by the
Collateral Agent alone and shall not release or discharge the Assignor
from any liability for the same or any other moneys which may exist
independently of this Agreement. Where such receipt, release or discharge
relates only to part of the Project Documents, such receipt, release or
discharge shall not prejudice or affect the assignment hereby created in
relation to the remainder of the Project Documents.
8.2 The Collateral Agent may in its discretion grant time or other indulgence,
or make any other arrangement variation or release, with the Assignor or
any other person (whether or not party hereto and whether or not jointly
liable with the Assignor) in respect of all the obligations or of any
other security therefor or guarantee in respect thereof without prejudice
either to the assignment constituted by or pursuant to this Agreement or
to the liability of the Assignor for the Obligations.
8.3 The rights, powers and remedies provided in this Agreement are cumulative
and are not, nor are they to be construed as, exclusive of any rights,
powers and remedies provided by law.
8.4 No failure on the part of the Collateral Agent to exercise, or delay on
its or their part in exercising any of the rights, powers and remedies
provided for by this Agreement or by law shall operate as a waiver
thereof, nor shall any single or partial waiver of any such rights, powers
or remedies preclude any further or other exercise of such rights, power
or remedies or the exercise of any other of such rights, powers or
remedies.
9. SUCCESSOR AND ASSIGNS
This Agreement shall be binding on and shall inure to the benefit of the
parties hereto and their respective successors, assignees and transferees,
provided that the Assignor may not assign or transfer all or any part of
its rights or obligations under this Agreement.
10. RELEASE AND REASSIGNMENT
Immediately after the Assignor has finally paid and satisfied in full the
Obligations to the Thai Lenders, the Trustees, and the Debenture Trustee,
the Collateral Agent shall, at the request and cost of the Assignor,
promptly reassign, without warranty, to the Assignor the rights, title and
interest assigned to it under this Agreement or such part of it as then
remains assigned in favor of it and/or release the encumbrances created
pursuant hereto, provided that any release, settlement, discharge or
termination of this Agreement and/or any such reassignment shall, unless
otherwise agreed in writing by the Thai Lenders, the Trustees or, as the
case may be, the Debenture Trustee (in connection with its second priority
lien), be upon the express condition that such release, settlement,
discharge, termination and/or reassignment shall become void and of no
effect and Clause 5.3 shall apply if any security or payment on the faith
of which such release, settlement, discharge, termi-
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nation and/or reassignment is given or made shall at any time thereafter
be nullified or subject to an order or judgment described in Clause 5.3.
11. SEVERABILITY
If at any time any one or more of the provisions of this Agreement becomes
invalid, illegal or unenforceable in any respect under any law, the
validity, legality and enforceability of the remaining provisions of this
Agreement shall not in any way be affected or impaired thereby.
12. NOTICES
Any notice or communication under or in connection with this Agreement
shall be given in accordance with Section 12 of the Security Sharing
Agreement and the provisions of such agreement shall apply hereto mutatis
mutandis.
13. LAW
This Agreement shall be governed by and construed in accordance with the
laws of Thailand.
14. AMENDMENTS
The terms of this Attachment may be waived, altered or amended only by an
instrument in writing duly executed by the Assignor and the Collateral
Agent in accordance with Section 17 of the Security Sharing Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed.
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NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
as the Assignor
By: /s/ Sawasdi Horrungruang
-----------------------------
Title: Chairman
THE INDUSTRIAL FINANCE CORPORATION OF THAILAND
as Thai Facility Agent for the Thai Lenders
By: /s/ [ILLEGIBLE]
-----------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
as Trustees and Debenture Trustee
By: /s/ [ILLEGIBLE]
-----------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
as Collateral Agent
By: /s/ [ILLEGIBLE]
-----------------------------
Name:
Title:
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EXHIBIT 1
The Thai Lenders
1. The Industrial Finance Corporation of Thailand
2. Thai Farmers Bank Public Company Limited
3. Siam City Bank Public Company Limited
4. The Government Savings Bank
5. First Bangkok City Bank Public Company Limited
6. Nakornthon Bank Public Company Limited
7. SCF Finance and Securities Public Company Limited
8. Siam City Credit Finance and Securities Public Company Limited
Page 11
EXHIBIT 2
Part A
Notice of Conditional Assignment
12 March 1998
To: STEEL DYNAMICS, INC.
4500 County Road 59
Butler IN 46721
Attention: Tracy Shellabarger
Dear Sirs:
We refer to the Shareholders' Agreement dated 12 March 1998 between Nakornthai
Strip Mill Public Company Limited (the "Assignor") and yourselves (the "Project
Document").
We hereby give you notice that pursuant to the Conditional Assignment of Project
Documents made between the Assignor, the Thai Lenders, the Trustees, the
Debenture Trustee and the Collateral Agent (each as defined therein) dated 12
March 1998 (the "Conditional Assignment") the Assignor conditionally assigned
all rights, title and interest in and to the Project Document and conditionally
transferred all of its obligations under the Project Document to the Collateral
Agent for the benefit of the Thai Lenders, holders of the Notes and the holders
of Debentures, and agreed that when such conditional assignment becomes
effective, the Thai Lenders, the holders of the Notes and the holders of
Debentures may substitute the Collateral Agent or its Designee as a party to the
Project Document in the place of the Assignor.
This substitution shall become effective and binding upon giving a Transfer
Notice (and until such time as such Transfer Notice is rescinded in accordance
with the terms of the Security Sharing Agreement) to you confirming that the
conditional assignment and transfer by way of novation has become effective (the
"Transfer and Novation").
Upon the Transfer and Novation the Collateral Agent or the Designee, as the case
may be, shall acquire all rights, title and interest in the Project Document
identical to those of the Assignor and shall assume obligations toward you
identical to those obligations owed by the Assignor to you under the Project
Document. Upon the Transfer and Novation, the Assignor shall cease to be
entitled to exercise such rights, title and interest but shall undertake to
remain, jointly and severally with the Collateral Agent or the Designee, liable
to perform such obligations. After delivery of such Transfer Notice all
references in the Project Document to the Assignor shall be deemed as references
to the Collateral Agent or the Designee, as the case may be.
We hereby confirm that you may rely conclusively upon any Transfer Notice, when
duty issued and delivered to you and that you shall not be concerned to inquire
whether any Event of Default (as defined in the Bank Credit Facility, the
Indentures and the Debenture Indenture, as the case
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may be) has happened upon which any of the powers, authority and discretion
conferred upon the Collateral Agent by or pursuant to the Conditional Assignment
in relation to the rights, title and interests under and in respect of the
Project Document or any part thereof is or may be exercisable by the Collateral
Agent or otherwise as to the appropriateness of acts purporting or intended to
be in exercise of any such powers.
This notice may not be revoked without the consent of the Thai Lenders, the
Trustees and the Debenture Trustee.
For the avoidance of doubt, references in this notice to the Project Document
shall be construed as references to the Project Document as the same may have
been or may from time to time be amended, novated or supplemented and shall
include any document which is supplemental to, is expressed to be related to or
is entered into pursuant to or in accordance with the terms of the Project
Document. Except as otherwise provided herein, all words and expressions in this
notice shall have the same respective meanings as described in the Conditional
Assignment.
Please acknowledge receipt of this notice and confirm your agreement to the
terms hereof and to the Conditional Assignment in the form of Acknowledgment
attached hereto (the "Acknowledgment") by duly executing and returning one copy
of the Acknowledgment to the Collateral Agent at The Chase Manhattan Bank,
Bubhajit Building, 20 North Sathorn Road, Bangkok 10500 and another copy to the
Assignor.
This notice and the Acknowledgment shall be governed by and construed in
accordance with the laws of the Kingdom of Thailand.
Yours faithfully,
NAKORNTHAI STRIP MILL
PUBLIC COMPANY LIMITED
as Assignor
By: /s/ Sawasdi Horrungruang
------------------------------
Title: Chairman
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We confirm our agreement with the foregoing.
THE CHASE MANHATTAN BANK
as Collateral Agent
By:
-----------------------------
Name:
Title:
Attachment: Acknowledgement of the Counterparty
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Part B
Acknowledgment and Agreement
To: THE CHASE MANHATTAN BANK
20 North Sathorn Road
Silom, Bangrak
Bangkok 10500
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
No. 9, LUM Tower, 16th Floor
Kwaeng Suanluang, Khet Suanluang
Bangkok,
We hereby acknowledge receipt of a notice of conditional assignment dated 12
March 1998, ("Notice of Conditional Assignment"), attaching a form of
Acknowledgment and Agreement. We now undertake and confirm to you that:
(i) we agree and consent to the terms of the Notice of Conditional Assignment;
(ii) we do not have, and will not make or exercise, any claims or demands, any
rights of counterclaim, rights of set-off or any other rights against the
Assignor in respect of the Project Documents;
(iii) we will give the Collateral Agent notice of any breach of the Project
Document by the Assignor as soon as we become aware of the same;
(iv) we have not received any other notice of assignment nor consented to any
other assignment of any rights or the transfer of obligations under the
Project Document;
(v) until the conditional assignment and transfer by way of novation of the
Project Document becomes effective, we regard the Assignor as liable to
perform all its obligations under the Project Document;
(vi) where a right to suspend our performance has arisen under the Project
Document, we will not exercise such right without first giving notice to
the Collateral Agent and allowing the Collateral Agent at least thirty
(30) days to remedy the situation, and we agree that if the Collateral
Agent remedies such situation within such period, we will continue to
perform our obligations under the Project Document;
(vii) where a right to terminate the Project Document has arisen thereunder, we
will not exercise such right without first giving notice to the Collateral
Agent and allowing the Collateral Agent at least thirty (30) days to
remedy the situation, and we agree that if the Collateral Agent remedies
such situation with such period, we will continue to perform our
obligations under the Project Document;
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(viii)we shall not, without the Collateral Agent's written consent, agree to or
concur in any action of the Assignor which would contravene any terms of
the Project Document or the Conditional Assignment; and
(ix) we agree to the Collateral Agent or the Designee being substituted as a
party to the Project Document in the place of the Assignor, and that such
the substitution shall become effective and binding upon the Collateral
Agent and/or the Designee giving a Transfer Notice to us confirming that
the conditional assignment and transfer has become effective, as provided
in the Notice of Conditional Assignment.
Yours faithfully
- ----------------------------------
STEEL DYNAMICS, INC.
12 March 1998
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Part A
Notice of Conditional Assignment
12 March 1998
To: ECT THAILAND INVESTMENTS, INC.
c/o Enron Capital & Trade Resources Corporation
1400 Smith St.
Houston, TX 77002
Attention: Donna W. Lowry
Dear Sirs:
We refer to the Shareholders' Agreement dated 12 March 1998 between Nakornthai
Strip Mill Public Company Limited (the "Assignor") and yourselves (the "Project
Document").
We hereby give you notice that pursuant to the Conditional Assignment of Project
Documents made between the Assignor, the Thai Lenders, the Trustees, the
Debenture Trustee and the Collateral Agent (each as defined therein) dated 12
March 1998 (the "Conditional Assignment") the Assignor conditionally assigned
all rights, title and interest in and to the Project Document and conditionally
transferred all of its obligations under the Project Document to the Collateral
Agent for the benefit of the Thai Lenders, holders of the Notes and the holders
of Debentures, and agreed that when such conditional assignment becomes
effective, the Thai Lenders, the holders of the Notes and the holders of
Debentures may substitute the Collateral Agent or its Designee as a party to the
Project Document in the place of the Assignor.
This substitution shall become effective and binding upon giving a Transfer
Notice (and until such time as such Transfer Notice is rescinded in accordance
with the terms of the Security Sharing Agreement) to you confirming that the
conditional assignment and transfer by way of novation has become effective (the
"Transfer and Novation").
Upon the Transfer and Novation the Collateral Agent or the Designee, as the case
may be, shall acquire all rights, title and interest in the Project Document
identical to those of the Assignor and shall assume obligations toward you
identical to those obligations owed by the Assignor to you under the Project
Document. Upon the Transfer and Novation, the Assignor shall cease to be
entitled to exercise such rights, title and interest but shall undertake to
remain, jointly and severally with the Collateral Agent or the Designee, liable
to perform such obligations. After delivery of such Transfer Notice all
references in the Project Document to the Assignor shall be deemed as references
to the Collateral Agent or the Designee, as the case may be.
We hereby confirm that you may rely conclusively upon any Transfer Notice, when
duly issued and delivered to you and that you shall not be concerned to inquire
whether any Event of Default (as defined in the Bank Credit Facility, the
Indentures and the Debenture Indenture, as the case may be) has happened upon
which any of the powers, authority and discretion conferred upon the
Page 17
Collateral Agent by or pursuant to the Conditional Assignment in relation to the
rights, title and interests under and in respect of the Project Document or any
part thereof is or may be exercisable by the Collateral Agent or otherwise as to
the appropriateness of acts purporting or intended to be in exercise of any such
powers.
This notice may not be revoked without the consent of the Thai Lenders, the
Trustees and the Debenture Trustee.
For the avoidance of doubt, references in this notice to the Project Document
shall be construed as references to the Project Document as the same may have
been or may from time to time be amended, novated or supplemented and shall
include any document which is supplemental to, is expressed to be related to or
is entered into pursuant to or in accordance with the terms of the Project
Document. Except as otherwise provided herein, all words and expressions in this
notice shall have the same respective meanings as described in the Conditional
Assignment.
Please acknowledge receipt of this notice and confirm your agreement to the
terms hereof and to the Conditional Assignment in the form of Acknowledgment
attached hereto (the "Acknowledgment") by duly executing and returning one copy
of the Acknowledgment to the Collateral Agent at The Chase Manhattan Bank,
Bubhajit Building, 20 North Sathorn Road, Bangkok 10500 and another copy to the
Assignor.
This notice and the Acknowledgment shall be governed by and construed in
accordance with the laws of the Kingdom of Thailand.
Yours faithfully,
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
as Assignor
By: /s/ Sawasdi Horrungruang
------------------------------
Title: Chairman
Page 18
We confirm our agreement with the foregoing.
THE CHASE MANHATTAN BANK
as Collateral Agent
By:
-----------------------------
Name:
Title:
Attachment: Acknowledgement of the Counterparty
Page 19
Part B
Acknowledgment and Agreement
To: THE CHASE MANHATTAN BANK
20 North Sathorn Road
Silom, Bangrak
Bangkok 10500
NAKORNTHAI STRIP MILL PUBLIC LIMITED
No. 9, UM Tower, 16th Floor
Kwaeng Suanluang, Khet Suanluang
Bangkok
We hereby acknowledge receipt of a notice of conditional assignment dated 12
March 1998, ("Notice of Conditional Assignment"), attaching a form of
Acknowledgment and Agreement. We now undertake and confirm to you that:
(i) we agree and consent to the terms of the Notice of Conditional Assignment;
(ii) we do not have, and will not make or exercise, any claims or demands, any
rights of counterclaim, rights of set-off or any other rights against the
Assignor in respect of the Project Documents;
(iii) we will give the Collateral Agent notice of any breach of the Project
Document by the Assignor as soon as we become aware of the same;
(iv) we have not received any other notice of assignment nor consented to any
other assignment of any rights or the transfer of obligations under the
Project Document;
(v) until the conditional assignment and transfer by way of novation of the
Project Document becomes effective, we regard the Assignor as liable to
perform all its obligations under the Project Document;
(vi) where a right to suspend our performance has arisen under the Project
Document, we will not exercise such right without first giving notice to
the Collateral Agent and allowing the Collateral Agent at least thirty
(30) days to remedy the situation, and we agree that if the Collateral
Agent remedies such situation within such period, we will continue to
perform our obligations under the Project Document;
(vii) where a right to terminate the Project Document has arisen thereunder, we
will not exercise such right without first giving notice to the Collateral
Agent and allowing the Collateral Agent at least thirty (30) days to
remedy the situation, and we agree that if the Collateral Agent remedies
such situation with such period, we will continue to perform our
obligations under the Project Document;
Page 20
(vii) we shall not, without the Collateral Agent's written consent, agree to or
concur in any action of the Assignor which would contravene any terms of
the Project Document or the Conditional Assignment; and
(viii)we agree to the Collateral Agent or the Designee being substituted as a
party to the Project Document in the place of the Assignor, and that such
the substitution shall become effective and binding upon the Collateral
Agent and/or the Designee giving a Transfer Notice to us confirming that
the conditional assignment and transfer has become effective, as provided
in the Notice of Conditional Assignment.
Yours faithfully
- -------------------------------
ECT THAILAND INVESTMENTS, INC.
12 March 1998
Page 21
Part A
Notice of Conditional Assignment
12 March 1998
To: NSM McDONALD PARTNERSHIP
c/o McDonald & Company Securities, Inc.
McDonald Investment Center
800 Superior Avenue
Cleveland, Ohio 44114-2603
U.S.A.
Attention: David Stickler
Dear Sirs:
We refer to the Management Agreement dated 12 March 1998 between Nakornthai
Strip Mill Public Company Limited (the "Assignor") and yourselves on behalf of
NSM Management Co. LLC (the "Project Document").
We hereby give you notice that pursuant to the Conditional Assignment of Project
Documents made between the Assignor, the Thai Lenders, the Trustees, the
Debenture Trustee and the Collateral Agent (each as defined therein) dated 12
March 1998 (the "Conditional Assignment") the Assignor conditionally assigned
all rights, title and interest in and to the Project Document and conditionally
transferred all of its obligations under the Project Document to the Collateral
Agent for the benefit of the Thai Lenders, holders of the Notes and the holders
of the Debentures, and agreed that when such conditional assignment becomes
effective, the Thai Lenders, the holders of the Notes and the holders of the
Debentures may substitute the Collateral Agent or its Designee as a party to the
Project Document in the place of the Assignor.
This substitution shall become effective and binding upon giving a Transfer
Notice (and until such time as such Transfer Notice is rescinded in accordance
with the terms of the Security Sharing Agreement) to you confirming that the
conditional assignment and transfer by way of novation has become effective (the
"Transfer and Novation").
Upon the Transfer and Novation the Collateral Agent or the Designee, as the case
may be, shall acquire all rights, title and interest in the Project Document
identical to those of the Assignor and shall assume obligations toward you
identical to those obligations owed by the Assignor to you under the Project
Document. Upon the Transfer and Novation, the Assignor shall cease to be
entitled to exercise such rights, title and interest but shall undertake to
remain, jointly and severally with the Collateral Agent or the Designee, liable
to perform such obligations. After delivery of such Transfer Notice all
references in the Project Document to the Assignor shall be deemed as references
to the Collateral Agent or the Designee, as the case may be.
Page 22
We hereby confirm that you may rely conclusively upon any Transfer Notice, when
duly issued and delivered to you and that you shall not be concerned to inquire
whether any Event of Default (as defined in the Bank Credit Facility, the
Indentures and the Debenture Indenture, as the case may be) has happened upon
which any of the powers, authority and discretion conferred upon the Collateral
Agent by or pursuant to the Conditional Assignment in relation to the rights,
title and interests under and in respect of the Project Document or any part
thereof is or may be exercisable by the Collateral Agent or otherwise as to the
appropriateness of acts purporting or intended to be in exercise of any such
powers.
This notice may not be revoked without the consent of the Thai Lenders, the
Trustees and the Debenture Trustee.
For the avoidance of doubt, references in this notice to the Project Document
shall be construed as references to the Project Document as the same may have
been or may from time to time be amended, novated or supplemented and shall
include any document which is supplemental to, is expressed to be related to or
is entered into pursuant to or in accordance with the terms of the Project
Document. Except as otherwise provided herein, all words and expressions in this
notice shall have the same respective meanings as described in the Conditional
Assignment.
Please acknowledge receipt of this notice and confirm your agreement to the
terms hereof and to the Conditional Assignment in the form of Acknowledgment
attached hereto (the "Acknowledgment") by duly executing and returning one copy
of the Acknowledgment to the Collateral Agent at The Chase Manhattan Bank,
Bubhajit Building, 20 North Sathorn Road, Bangkok 10500 and another copy to the
Assignor.
This notice and the Acknowledgment shall be governed by and construed in
accordance with the laws of the Kingdom of Thailand.
Yours faithfully,
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
as Assignor
By: /s/ Sawasdi Horrungruang
------------------------------
Title: Chairman
Page 23
We confirm our agreement with the foregoing.
THE CHASE MANHATTAN BANK
as Collateral Agent
By:
-----------------------------
Name:
Title:
Attachment: Acknowledgement of the Counterparty
Page 24
Part B
Acknowledgment and Agreement
To: THE CHASE MANHATTAN BANK
20 North Sathorn Road
Silom, Bangrak
Bangkok 10500
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
No. 9, UM Tower, 16th Floor
Kwaeng Suanluang, Khet Suanluang
Bangkok
We hereby acknowledge receipt of a notice of conditional assignment dated 12
March 1998, ("Notice of Conditional Assignment"), attaching a form of
Acknowledgment and Agreement. We now undertake and confirm to you that:
(i) we agree and consent to the terms of the Notice of Conditional Assignment;
(ii) we do not have, and will not make or exercise, any claims or demands, any
rights of counterclaim, rights of set-off or any other rights against the
Assignor in respect of the Project Documents;
(iii) we will give the Collateral Agent notice of any breach of the Project
Document by the Assignor as soon as we become aware of the same;
(iv) we have not received any other notice of assignment nor consented to any
other assignment of any rights or the transfer of obligations under the
Project Document;
(v) until the conditional assignment and transfer by way of novation of the
Project Document becomes effective, we regard the Assignor as liable to
perform all its obligations under the Project Document;
(vi) where a right to suspend our performance has arisen under the Project
Document, we will not exercise such right without first giving notice to
the Collateral Agent and allowing the Collateral Agent at least thirty
(30) days to remedy the situation, and we agree that if the Collateral
Agent remedies such situation within such period, we will continue to
perform our obligations under the Project Document;
(vii) where a right to terminate the Project Document has arisen thereunder, we
will not exercise such right without first giving notice to the Collateral
Agent and allowing the Collateral Agent at least thirty (30) days to
remedy the situation, and we agree that if the Collateral Agent remedies
such situation with such period, we will continue to perform our
obligations under the Project Document;
Page 25
(viii) we shall not, without the Collateral Agent's written consent, agree to
or concur in any action of the Assignor which would contravene any terms
of the Project Document or the Conditional Assignment; and
(ix) we agree to the Collateral Agent or the Designee being substituted as a
party to the Project Document in the place of the Assignor, and that
such the substitution shall become effective and binding upon the
Collateral Agent and/or the Designee giving a Transfer Notice to us
confirming that the conditional assignment and transfer has become
effective, as provided in the Notice of Conditional Assignment.
Yours faithfully
- ---------------------------------
NSM McDONALD PARTNERSHIP
on behalf of NSM Management Co. LLC
12 March 1998
Page 26
Part A
Notice of Conditional Assignment
12 March 1998
To: N.T.S. Group Public Company Limited
19th Floor, LUM Tower
9 Ramkhamhaeng Road
Suanluang
Bangkok 10250
Attention: Mr. Chamni Janchai
Dear Sirs:
We refer to the Shareholders' Agreement dated 12 March 1998 between Nakornthai
Strip Mill Public Company Limited (the "Assignor") and yourselves (the "Project
Document").
We hereby give you notice that pursuant to the Conditional Assignment of Project
Documents made between the Assignor, the Thai Lenders, the Trustees, the
Debenture Trustee and the Collateral Agent (each as defined therein) dated 12
March 1998 (the "Conditional Assignment") the Assignor conditionally assigned
all rights, title and interest in and to the Project Document and conditionally
transferred all of its obligations under the Project Document to the Collateral
Agent for the benefit of the Thai Lenders, holders of the Notes and the holders
of Debentures, and agreed that when such conditional assignment becomes
effective, the Thai Lenders, the holders of the Notes and the holders of
Debentures may substitute the Collateral Agent or its Designee as a party to the
Project Document in the place of the Assignor.
This substitution shall become effective and binding upon giving a Transfer
Notice (and until such time as such Transfer Notice is rescinded in accordance
with the terms of the Security Sharing Agreement) to you confirming that the
conditional assignment and transfer by way of novation has become effective (the
"Transfer and Novation").
Upon the Transfer and Novation the Collateral Agent or the Designee, as the case
may be, shall acquire all rights, title and interest in the Project Document
identical to those of the Assignor and shall assume obligations toward you
identical to those obligations owed by the Assignor to you under the Project
Document. Upon the Transfer and Novation, the Assignor shall cease to be
entitled to exercise such rights, title and interest but shall undertake to
remain, jointly and severally with the Collateral Agent or the Designee, liable
to perform such obligations. After delivery of such Transfer Notice all
references in the Project Document to the Assignor shall be deemed as references
to the Collateral Agent or the Designee, as the case may be. We hereby confirm
that you may rely conclusively upon any Transfer Notice, when duly issued and
delivered to you and that you shall not be concerned to inquire whether any
Event of Default (as defined in the Bank Credit Facility, the Indentures and the
Debenture Indenture, as the case may be) has happened upon which any of the
powers, authority and discretion conferred upon the Collateral Agent by or
Page 27
pursuant to the Conditional Assignment in relation to the rights, title and
interests under and in respect of the Project Document or any part thereof is or
may be exercisable by the Collateral Agent or otherwise as to the
appropriateness of acts purporting or intended to be in exercise of any such
powers.
This notice may not be revoked without the consent of the Thai Lenders, the
Trustees and the Debenture Trustee.
For the avoidance of doubt, references in this notice to the Project Document
shall be construed as references to the Project Document as the same may have
been or may from time to time be amended, novated or supplemented and shall
include any document which is supplemental to, is expressed to be related to or
is entered into pursuant to or in accordance with the terms of the Project
Document. Except as otherwise provided herein, all words and expressions in this
notice shall have the same respective meanings as described in the Conditional
Assignment.
Please acknowledge receipt of this notice and confirm your agreement to the
terms hereof and to the Conditional Assignment in the form of Acknowledgment
attached hereto (the "Acknowledgment") by duly executing and returning one copy
of the Acknowledgment to the Collateral Agent at The Chase Manhattan Bank,
Bubhajit Building, 20 North Sathorn Road, Bangkok 10500 and another copy to the
Assignor.
This notice and the Acknowledgment shall be governed by and construed in
accordance with the laws of the Kingdom of Thailand.
Yours faithfully,
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
as Assignor
By: /s/ Sawasdi Horrungruang
--------------------------------
Title: Chairman
Page 28
We confirm our agreement with the foregoing.
THE CHASE MANHATTAN BANK
as Collateral Agent
By:
-----------------------------
Name:
Title:
Attachment: Acknowledgement of the Counterparty
Page 29
Part B
Acknowledgment and Agreement
To: THE CHASE MANHATTAN BANK
20 North Sathorn Road
Silom, Bangrak
Bangkok 10500
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
No. 9, UM Tower, 16th Floor
Kwaeng Suanluang, Khet Suanluang
Bangkok
We hereby acknowledge receipt of a notice of conditional assignment dated 12
March 1998, ("Notice of Conditional Assignment"), attaching a form of
Acknowledgment and Agreement. We now undertake and confirm to you that:
(i) we agree and consent to the terms of the Notice of Conditional Assignment;
(ii) we do not have, and will not make or exercise, any claims or demands, any
rights of counterclaim, rights of set-off or any other rights against the
Assignor in respect of the Project Documents;
(iii) we will give the Collateral Agent notice of any breach of the Project
Document by the Assignor as soon as we become aware of the same;
(iv) we have not received any other notice of assignment nor consented to any
other assignment of any rights or the transfer of obligations under the
Project Document;
(v) until the conditional assignment and transfer by way of novation of the
Project Document becomes effective, we regard the Assignor as liable to
perform all its obligations under the Project Document;
(vi) where a right to suspend our performance has arisen under the Project
Document, we will not exercise such right without first giving notice to
the Collateral Agent and allowing the Collateral Agent at least thirty
(30) days to remedy the situation, and we agree that if the Collateral
Agent remedies such situation within such period, we will continue to
perform our obligations under the Project Document;
(vii) where a right to terminate the Project Document has arisen thereunder, we
will not exercise such right without first giving notice to the Collateral
Agent and allowing the Collateral Agent at least thirty (30) days to
remedy the situation, and we agree that if the Collateral Agent remedies
such situation with such period, we will continue to perform our
obligations under the Project Document;
Page 30
(viii)we shall not, without the Collateral Agent's written consent, agree to or
concur in any action of the Assignor which would contravene any terms of
the Project Document or the Conditional Assignment; and
(ix) we agree to the Collateral Agent or the Designee being substituted as a
party to the Project Document in the place of the Assignor, and that such
the substitution shall become effective and binding upon the Collateral
Agent and/or the Designee giving a Transfer Notice to us confirming that
the conditional assignment and transfer has become effective, as provided
in the Notice of Conditional Assignment.
Yours faithfully
- ----------------------------------
N.T.S. Group Public Company Limited
Page 31
Part A
Notice of Conditional Assignment
12 March 1998
To: Khun Sawasdi Horrungruang
19th Floor, UM Tower
9 Ramkhamhaeng Road
Suanluang
Bangkok 10250
Dear Sirs:
We refer to the Shareholders' Agreement dated 12 March 1998 between Nakornthai
Strip Mill Public Company Limited (the "Assignor") and yourselves (the "Project
Document").
We hereby give you notice that pursuant to the Conditional Assignment of Project
Documents made between the Assignor, the Thai Lenders, the Trustees, the
Debenture Trustee and the Collateral Agent (each as defined therein) dated 12
March 1998 (the "Conditional Assignment") the Assignor conditionally assigned
all rights, title and interest in and to the Project Document and conditionally
transferred all of its obligations under the Project Document to the Collateral
Agent for the benefit of the Thai Lenders, holders of the Notes and the holders
of Debentures, and agreed that when such conditional assignment becomes
effective, the Thai Lenders, the holders of the Notes and the holders of
Debentures may substitute the Collateral Agent or its Designee as a party to the
Project Document in the place of the Assignor.
This substitution shall become effective and binding upon giving a Transfer
Notice (and until such time as such Transfer Notice is rescinded in accordance
with the terms of the Security Sharing Agreement) to you confirming that the
conditional assignment and transfer by way of novation has become effective (the
"Transfer and Novation").
Upon the Transfer and Novation the Collateral Agent or the Designee, as the case
may be, shall acquire all rights, title and interest in the Project Document
identical to those of the Assignor and shall assume obligations toward you
identical to those obligations owed by the Assignor to you under the Project
Document. Upon the Transfer and Novation, the Assignor shall cease to be
entitled to exercise such rights, title and interest but shall undertake to
remain, jointly and severally with the Collateral Agent or the Designee, liable
to perform such obligations. After delivery of such Transfer Notice all
references in the Project Document to the Assignor shall be deemed as references
to the Collateral Agent or the Designee, as the case may be.
We hereby confirm that you may rely conclusively upon any Transfer Notice, when
duly issued and delivered to you and that you shall not be concerned to inquire
whether any Event of Default (as defined in the Bank Credit Facility, the
Indentures and the Debenture Indenture, as the case may be) has happened upon
which any of the powers, authority and discretion conferred upon the Collateral
Agent by or pursuant to the Conditional Assignment in relation to the rights,
title and
Page 32
interests under and in respect of the Project Document or any part thereof is or
may be exercisable by the Collateral Agent or otherwise as to the
appropriateness of acts purporting or intended to be in exercise of any such
powers.
This notice may not be revoked without the consent of the Thai Lenders, the
Trustees and the Debenture Trustee.
For the avoidance of doubt, references in this notice to the Project Document
shall be construed as references to the Project Document as the same may have
been or may from time to time be amended, novated or supplemented and shall
include any document which is supplemental to, is expressed to be related to or
is entered into pursuant to or in accordance with the terms of the Project
Document. Except as otherwise provided herein, all words and expressions in this
notice shall have the same respective meanings as described in the Conditional
Assignment.
Please acknowledge receipt of this notice and confirm your agreement to the
terms hereof and to the Conditional Assignment in the form of Acknowledgment
attached hereto (the "Acknowledgment") by duly executing and returning one copy
of the Acknowledgment to the Collateral Agent at The Chase Manhattan Bank,
Bubhajit Building, 20 North Sathorn Road, Bangkok 10500 and another copy to the
Assignor.
This notice and the Acknowledgment shall be governed by and construed in
accordance with the laws of the Kingdom of Thailand.
Yours faithfully,
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
as Assignor
By: /s/ Sawasdi Horrungruang
-------------------------------
Title: Chairman
Page 33
We confirm our agreement with the foregoing.
THE CHASE MANHATTAN BANK
as Collateral Agent
By:
-----------------------------
Name:
Title:
Attachment: Acknowledgement of the Counterparty
Page 34
Part B
Acknowledgment and Agreement
To: THE CHASE MANHATTAN BANK
20 North Sathorn Road
Silom, Bangrak
Bangkok 10500
NAKORNTRAI STRIP MILL PUBLIC COMPANY LIMITED
No. 9, UM Tower, 16th Floor
Kwaeng Suanluang, Khet Suanluang
Bangkok
We hereby acknowledge receipt of a notice of conditional assignment dated 12
March 1998, ("Notice of Conditional Assignment"), attaching a form of
Acknowledgment and Agreement. We now undertake and confirm to you that:
(i) we agree and consent to the terms of the Notice of Conditional Assignment;
(ii) we do not have, and will not make or exercise, any claims or demands, any
rights of counterclaim, rights of set-off or any other rights against the
Assignor in respect of the Project Documents;
(iii) we will give the Collateral Agent notice of any breach of the Project
Document by the Assignor as soon as we become aware of the same;
(iv) we have not received any other notice of assignment nor consented to any
other assignment of any rights or the transfer of obligations under the
Project Document;
(v) until the conditional assignment and transfer by way of novation of the
Project Document becomes effective, we regard the Assignor as liable to
perform all its obligations under the Project Document;
(vi) where a right to suspend our performance has arisen under the Project
Document, we will not exercise such right without first giving notice to
the Collateral Agent and allowing the Collateral Agent at least thirty
(30) days to remedy the situation, and we agree that if the Collateral
Agent remedies such situation within such period, we will continue to
perform our obligations under the Project Document;
(vii) where a right to terminate the Project Document has arisen thereunder, we
will not exercise such right without first giving notice to the Collateral
Agent and allowing the Collateral Agent at least thirty (30) days to
remedy the situation, and we agree that if the Collateral Agent remedies
such situation with such period, we will continue to perform our
obligations under the Project Document;
Page 35
(viii)we shall not, without the Collateral Agent's written consent, agree to or
concur in any action of the Assignor which would contravene any terms of
the Project Document or the Conditional Assignment; and
(ix) we agree to the Collateral Agent or the Designee being substituted as a
party to the Project Document in the place of the Assignor, and that such
the substitution shall become effective and binding upon the Collateral
Agent and/or the Designee giving a Transfer Notice to us confirming that
the conditional assignment and transfer has become effective, as provided
in the Notice of Conditional Assignment.
Yours faithfully
- -------------------------------
Khun Sawasdi Horrungruang
12 March 1998
Page 36
Part A
Notice of Conditional Assignment
12 March 1998
To: Steel Dynamics, Inc.
4500 Country Road 59
Butler, IN 46721
Attention: Mr. Keith E. Busse
President
Dear Sirs:
We refer to the SDI Management Agreement dated 12 March 1998 between Nakornthai
Strip Mill Public Company Limited (the "Assignor") and yourselves (the "Project
Document").
We hereby give you notice that pursuant to the Conditional Assignment of Project
Documents made between the Assignor, the Thai Lenders, the Trustees, the
Debenture Trustee and the Collateral Agent (each as defined therein) dated 12
March 1998 (the "Conditional Assignment") the Assignor conditionally assigned
all rights, title and interest in and to the Project Document and conditionally
transferred all of its obligations under the Project Document to the Collateral
Agent for the benefit of the Thai Lenders, holders of the Notes and the holders
of Debentures, and agreed that when such conditional assignment becomes
effective, the Thai Lenders, the holders of the Notes and the holders of
Debentures may substitute the Collateral Agent or its Designee as a party to the
Project Document in the place of the Assignor.
This substitution shall become effective and binding upon giving a Transfer
Notice (and until such time as such Transfer Notice is rescinded in accordance
with the terms of the Security Sharing Agreement) to you confirming that the
conditional assignment and transfer by way of novation has become effective (the
"Transfer and Novation").
Upon the Transfer and Novation the Collateral Agent or the Designee, as the case
may be, shall acquire all rights, title and interest in the Project Document
identical to those of the Assignor and shall assume obligations toward you
identical to those obligations owed by the Assignor to you under the Project
Document. Upon the Transfer and Novation, the Assignor shall cease to be
entitled to exercise such rights, title and interest but shall undertake to
remain, jointly and severally with the Collateral Agent or the Designee, liable
to perform such obligations. After delivery of such Transfer Notice all
references in the Project Document to the Assignor shall be deemed as references
to the Collateral Agent or the Designee, as the case may be.
We hereby confirm that you may rely conclusively upon any Transfer Notice, when
duly issued and delivered to you and that you shall not be concerned to inquire
whether any Event of Default (as defined in the Bank Credit Facility, the
Indentures and the Debenture Indenture, as the case may be) has happened upon
which any of the powers, authority and discretion conferred upon the
Page 37
Collateral Agent by or pursuant to the Conditional Assignment in relation to the
rights, title and interests under and in respect of the Project Document or any
part thereof is or may be exercisable by the Collateral Agent or otherwise as to
the appropriateness of acts purporting or intended to be in exercise of any such
powers.
This notice may not be revoked without the consent of the Thai Lenders, the
Trustees and the Debenture Trustee.
For the avoidance of doubt, references in this notice to the Project Document
shall be construed as references to the Project Document as the same may have
been or may from time to time be amended, novated or supplemented and shall
include any document which is supplemental to, is expressed to be related to or
is entered into pursuant to or in accordance with the terms of the Project
Document. Except as otherwise provided herein, all words and expressions in this
notice shall have the same respective meanings as described in the Conditional
Assignment.
Please acknowledge receipt of this notice and confirm your agreement to the
terms hereof and to the Conditional Assignment in the form of Acknowledgment
attached hereto (the "Acknowledgment") by duly executing and returning one copy
of the Acknowledgment to the Collateral Agent at The Chase Manhattan Bank,
Bubhajit Building, 20 North Sathorn Road, Bangkok 10500 and another copy to the
Assignor.
This notice and the Acknowledgment shall be governed by and construed in
accordance with the laws of the Kingdom of Thailand.
Yours faithfully,
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
as Assignor
By: /s/ Sawasdi Horrungruang
------------------------------
Title: Chairman
Page 38
We confirm our agreement with the foregoing.
THE CHASE MANHATTAN BANK
as Collateral Agent
By:
-----------------------------
Name:
Title:
Attachment: Acknowledgement of the Counterparty
Page 39
Part B
Acknowledgment and Agreement
To: THE CHASE MANHATTAN BANK
20 North Sathorn Road
Silom, Bangrak
Bangkok 10500
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
No. 9, UM Tower, 16th Floor
Kwaeng Suanluang, Khet Suanluang
Bangkok,
We hereby acknowledge receipt of a notice of conditional assignment dated 12
March 1998, ("Notice of Conditional Assignment"), attaching a form of
Acknowledgment and Agreement. We now undertake and confirm to you that:
(i) we agree and consent to the terms of the Notice of Conditional Assignment;
(ii) we do not have, and will not make or exercise, any claims or demands, any
rights of counterclaim, rights of set-off or any other rights against the
Assignor in respect of the Project Documents;
(iii) we will give the Collateral Agent notice of any breach of the Project
Document by the Assignor as soon as we become aware of the same;
(iv) we have not received any other notice of assignment nor consented to any
other assignment of any rights or the transfer of obligations under the
Project Document;
(v) until the conditional assignment and transfer by way of novation of the
Project Document becomes effective, we regard the Assignor as liable to
perform all its obligations under the Project Document;
(vi) where a right to suspend our performance has arisen under the Project
Document, we will not exercise such right without first giving notice to
the Collateral Agent and allowing the Collateral Agent at least thirty
(30) days to remedy the situation, and we agree that if the Collateral
Agent remedies such situation within such period, we will continue to
perform our obligations under the Project Document;
(vii) where a right to terminate the Project Document has arisen thereunder, we
will not exercise such right without first giving notice to the Collateral
Agent and allowing the Collateral Agent at least thirty (30) days to
remedy the situation, and we agree that if the Collateral Agent remedies
such situation with such period, we will continue to perform our
obligations under the Project Document;
Page 40
(viii)we shall not, without the Collateral Agent's written consent, agree to or
concur in any action of the Assignor which would contravene any terms of
the Project Document or the Conditional Assignment; and
(ix) we agree to the Collateral Agent or the Designee being substituted as a
party to the Project Document in the place of the Assignor, and that such
the substitution shall become effective and binding upon the Collateral
Agent and/or the Designee giving a Transfer Notice to us confirming that
the conditional assignment and transfer has become effective, as provided
in the Notice of Conditional Assignment.
Yours faithfully
- -----------------------------
Steel Dynamics, Inc.
12 March 1998
Page 41
EXHIBIT 3
Form of Transfer Notice
To: (1) Nakornthai Strip Mill Public Company Limited
No. 9, UM Tower, 16th Floor
Kwaeng Suanluang, Khet Suanluang
Bangkok, Thailand
(2) Steel Dynamics, Inc.
4500 Country Road 59
Butler, IN 46721
Attention: Mr. Keith E. Busse
President
Dear Sirs,
We refer to:
(a) the SDI Management Agreement dated [12 March 1998] (the "Relevant
Agreement") between Nakornthai Strip Mill Public Company Limited (the
"Assignor") and Steel Dynamics, Inc. in respect of [.];
(b) the Conditional Assignment of Project Document dated 12 March 1998 between
the Assignor and the Thai Lenders, the Trustees, the Debenture Trustee and
the Collateral Agent (the "Conditional Assignment of Project Documents");
and
(c) the Notice of Conditional Assignment dated 12 March 1998 given by the
Assignor to Steel Dynamics, Inc. in respect of the Conditional Assignment
of Project Document and Steel Dynamics, Inc. acknowledgment thereof
dated[.]
Words and expressions defined or referred to in the Conditional Assignment of
Project Document shall, unless the context otherwise requires, have the same
meanings when used herein.
We have received a Notice of an Actionable Default (as defined in the Security
Sharing Agreement) and we have been directed to deliver this Transfer Notice in
accordance with the provisions of Section 4 of the Security Sharing Agreement.
We hereby give you notice confirming that the conditional assignment and
transfer by way of novation of the Relevant Agreement became effective on the
date hereof.
We confirm that this Transfer Notice is delivered pursuant to Clause 2.1 of the
Conditional Assignment of Project Documents. In accordance with terms thereof,
we hereby are substituted as the party to the Relevant Agreement in place of the
Assignor and we hereby acquire rights and title under and interests in the
Relevant Agreement identical to those of the Assignor at the date hereof under
the Relevant Agreement. We hereby assume all obligations towards Steel Dynamics,
Inc. identical to the obligations owed by Assignor as of the date hereof to
Steel Dynamics,
Page 42
Inc. under the Relevant Agreement and the Assignor will cease to be entitled to
exercise such rights, but shall undertake to remain, jointly and severally with
us, liable to perform all obligations under the Relevant Agreement. With effect
from the date hereof all references in the Relevant Agreement to the Assignor
shall be deemed as references to us.
This Transfer Notice and the rights and obligation of the parties hereunder
shall be governed by and construed in accordance with the law of the Kingdom of
Thailand.
Yours faithfully,
[Collateral Agent/Designee]
for and on behalf of the Thai Lenders,
the Trustees and the Debenture Trustee
Page 43
Part A
Notice of Conditional Assignment
12 March 1998
To: McDonald & Company Securities, Inc.
800 Superior Avenue
Cleveland, OH 44114
Attention: Mr. David Stickler Managing Director
Dear Sirs:
We refer to the SDI Management Agreement dated 12 March 1998 between Nakornthai
Strip Mill Public Company Limited (the "Assignor") and yourselves
(the "Project Document").
We hereby give you notice that pursuant to the Conditional Assignment of Project
Documents made between the Assignor, the Thai Lenders, the Trustees, the
Debenture Trustee and the Collateral Agent (each as defined therein) dated 12
March 1998 (the "Conditional Assignment") the Assignor conditionally assigned
all rights, title and interest in and to the Project Document and conditionally
transferred all of its obligations under the Project Document to the Collateral
Agent for the benefit of the Thai Lenders, holders of the Notes and the holders
of Debentures, and agreed that when such conditional assignment becomes
effective, the Thai Lenders, the holders of the Notes and the holders of
Debentures may substitute the Collateral Agent or its Designee as a party to the
Project Document in the place of the Assignor.
This substitution shall become effective and binding upon giving a Transfer
Notice (and until such time as such Transfer Notice is rescinded in accordance
with the terms of the Security Sharing Agreement) to you confirming that the
conditional assignment and transfer by way of novation has become effective (the
"Transfer and Novation").
Upon the Transfer and Novation the Collateral Agent or the Designee, as the case
may be, shall acquire all rights, title and interest in the Project Document
identical to those of the Assignor and shall assume obligations toward you
identical to those obligations owed by the Assignor to you under the Project
Document. Upon the Transfer and Novation, the Assignor shall cease to be
entitled to exercise such rights, title and interest but shall undertake to
remain, jointly and severally with the Collateral Agent or the Designee, liable
to perform such obligations. After delivery of such Transfer Notice all
references in the Project Document to the Assignor shall be deemed as references
to the Collateral Agent or the Designee, as the case may be.
We hereby confirm that you may rely conclusively upon any Transfer Notice, when
duly issued and delivered to you and that you shall not be concerned to inquire
whether any Event of Default (as defined in the Bank Credit Facility, the
Indentures and the Debenture Indenture, as the case may be) has happened upon
which any of the powers, authority and discretion conferred upon the Collateral
Agent by or pursuant to the Conditional Assignment in relation to the rights,
title and
Page 44
interests under and in respect of the Project Document or any part thereof is or
may be exercisable by the Collateral Agent or otherwise as to the
appropriateness of acts purporting or intended to be in exercise of any such
powers.
This notice may not be revoked without the consent of the Thai Lenders, the
Trustees and the Debenture Trustee.
For the avoidance of doubt, references in this notice to the Project Document
shall be construed as references to the Project Document as the same may have
been or may from time to time be amended, novated or supplemented and shall
include any document which is supplemental to, is expressed to be related to or
is entered into pursuant to or in accordance with the terms of the Project
Document, Except as otherwise provided herein, all words and expressions in this
notice shall have the same respective meanings as described in the Conditional
Assignment.
Please acknowledge receipt of this notice and confirm agreement to the terms
hereof and to the Conditional Assignment in the form of Acknowledgment attached
hereto (the "Acknowledgment") by duly executing and returning one copy of the
Acknowledgment to the Collateral Agent at The Chase Manhattan Bank, Bubhajit
Building, 20 North Sathorn Road, Bangkok 10500 and another copy to the Assignor.
This notice and the Acknowledgment shall be governed by and construed in
accordance with the laws of the Kingdom of Thailand.
Yours faithfully,
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMTED
as Assignor
By: /s/ Sawasdi Horrungruang
------------------------------
Title: Chairman
Page 45
We confirm our agreement with the foregoing.
THE CHASE MANHATTAN BANK
as Collateral Agent
By:
----------------------------
Name:
Title:
Attachment: Acknowledgement of the Counterparty
Page 46
Part B
Acknowledgment and Agreement
To: THE CHASE MANHATTAN BANK
20 North Sathorn Road
Silom, Bangrak
Bangkok 10500
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
No. 9, UM Tower, 16th Floor
Kwaeng Suanluang, Khet Suanluang
Bangkok
We hereby acknowledge receipt of a notice of conditional assignment dated 12
March 1998, ("Notice of Conditional Assignment"), attaching a form of
Acknowledgment and Agreement. We now undertake and confirm to you that:
(i) we agree and consent to the terms of the Notice of Conditional Assignment;
(ii) we do not have, and will not make or exercise, any claims or demands, any
rights of counterclaim, rights of set-off or any other rights against the
Assignor in respect of the Project Documents;
(iii) we will give the Collateral Agent notice of any breach of the Project
Document by the Assignor as soon as we become aware of the same;
(iv) we have not received any other notice of assignment nor consented to any
other assignment of any rights or the transfer of obligations under the
Project Document;
(v) until the conditional assignment and transfer by way of novation of the
Project Document becomes effective, we regard the Assignor as liable to
perform all its obligations under the Project Document;
(vi) where a right to suspend our performance has arisen under the Project
Document, we will not exercise such right without first giving notice to
the Collateral Agent and allowing the Collateral Agent at least thirty
(30) days to remedy the situation, and we agree that if the Collateral
Agent remedies such situation within such period, we will continue to
perform our obligations under the Project Document;
(vii) where a right to terminate the Project Document has arisen thereunder, we
will not exercise such right without first giving notice to the Collateral
Agent and allowing the Collateral Agent at least thirty (30) days to
remedy the situation, and we agree that if the Collateral Agent remedies
such situation with such period, we will continue to perform our
obligations under the Project Document.
Page 47
(viii)we shall not, without the Collateral Agent's written consent, agree to or
concur in any action of the Assignor which would contravene any terms of
the Project Document or the Conditional Assignment; and
(ix) we agree to the Collateral Agent or the Designee being substituted as a
party to the Project Document in the place of the Assignor, and that such
the substitution shall become effective and binding upon the Collateral
Agent and/or the Designee giving a Transfer Notice to us confirming that
the conditional assignment and transfer has become effective, as provided
in the Notice of Conditional Assignment.
Yours faithfully
- -----------------------------------
McDonald & Company Securities, Inc.
12 March 1998
Page 48
EXHIBIT 3
Form of Transfer Notice
To: (1) Nakornthai Strip Mill Public Company Limited
No. 9, UM Tower, 16th Floor
Kwaeng Suanluang, Khet Suanluang
Bangkok, Thailand
(2) McDonald & Company Securities, Inc.
800 Superior Avenue
Cleveland, OH 44114
Attention: Mr. David Stickler
Managing Director
Dear Sirs,
We refer to:
(a) the SDI Management Agreement dated [12 March 1998] (the "Relevant
Agreement") between Nakornthai Strip Mill Public Company Limited (the
"Assignor") and McDonald & Company Securities, Inc. in respect of [.];
(b) the Conditional Assignment of Project Document dated 12 March 1998 between
the Assignor and the Thai Lenders, the Trustees, the Debenture Trustee and
the Collateral Agent (the "Conditional Assignment of Project Documents");
and
(c) the Notice of Conditional Assignment dated 12 March 1998 given by the
Assignor to McDonald & Company Securities, Inc. in respect of the
Conditional Assignment of Project Document and McDonald & Company
Securities, Inc. acknowledgment thereof dated [.].
Words and expressions defined or referred to in the Conditional Assignment of
Project Document shall, unless the context otherwise requires, have the same
meanings when used herein.
We have received a Notice of an Actionable Default (as defined in the Security
Sharing Agreement) and we have been directed to deliver this Transfer Notice in
accordance with the provisions of Section 4 of the Security Sharing Agreement.
We hereby give you notice confirming that the conditional assignment and
transfer by way of novation of the Relevant Agreement became effective on the
date hereof.
We confirm that this Transfer Notice is delivered pursuant to Clause 2.1 of the
Conditional Assignment of Project Documents. In accordance with terms thereof,
we hereby are substituted as the party to the Relevant Agreement in place of the
Assignor and we hereby acquire rights and title under and interests in the
Relevant Agreement identical to those of Assignor at the date hereof under the
Relevant Agreement. We hereby assume all obligations towards McDonald &
Page 49
Company Securities, Inc. identical to the obligations owned by Assignor as of
the date hereof to McDonald & Company Securities, Inc. under the Relevant
Agreement and the Assignor will cease to be entitled to exercise such rights,
but shall undertake remain, jointly and severally with us, liable to perform all
obligations under the Relevant Agreement. With effect from the date hereof all
references in the Relevant Agreement to Assignor shall be deemed as references
to us.
This Transfer Notice and the rights and obligation of the parties hereunder
shall be by and construed in accordance with the law of the Kingdom of Thailand.
Yours faithfully
[Collateral Agent/Designee]
for and on behalf of the Thai Lenders
the Trustees and the Debenture Trustee
Page 50
Part A
Notice of Conditional Assignment
12 March 1998
To: Klockner Stahl-Und Metallhandel Gmbh
Neudorter Str. 3-5
D-47057 Dulsburg
Attention: Mr. R. Reinckel/
Mr. D. Frenzel
Dear Sirs:
We refer to the Klockner Off-Take Agreement dated 12 March 1998 between
Nakornthai Strip Mill Public Company Limited (the "Assignor") and yourselves
(the "Project Document").
We hereby give you notice that pursuant to the Conditional Assignment of Project
Documents made between the Assignor, the Thai Lenders, the Trustees, the
Debenture Trustee and the Collateral Agent (each as defined therein) dated 12
March 1998 (the "Conditional Assignment") the Assignor conditionally assigned
all rights, title and interest in and to the Project Document and conditionally
transferred all of its obligations under the Project Document to the Collateral
Agent for the benefit of the Thai Lenders, holders of the Notes and the holders
of Debentures, and agreed that when such conditional assignment becomes
effective, the Thai Lenders, the holders of the Notes and the holders of
Debentures may substitute the Collateral Agent or its Designee as a party to the
Project Document in the place of the Assignor.
This substitution shall become effective and binding upon giving a Transfer
Notice (and until such time as such Transfer Notice is rescinded in accordance
with the terms of the Security Sharing Agreement) to you confirming that the
conditional assignment and transfer by way of novation has become effective (the
"Transfer and Novation").
Upon the Transfer and Novation the Collateral Agent or the Designee, as the case
may be, shall acquire all rights, title and interest in the Project Document
identical to those of the Assignor and shall assume obligations toward you
identical to those obligations owed by the Assignor to you under the Project
Document. Upon the Transfer and Novation, the Assignor shall cease to be
entitled to exercise such rights, title and interest but shall undertake to
remain, jointly and severally with the Collateral Agent or the Designee, liable
to perform such obligations. After delivery of such Transfer Notice all
references in the Project Document to the Assignor shall be deemed as references
to the Collateral Agent or the Designee, as the case may be.
We hereby confirm that you may rely conclusively upon any Transfer Notice, when
duly issued and delivered to you and that you shall not be concerned to inquire
whether any Event of Default (as defined in the Bank Credit Facility, the
Indentures and the Debenture Indenture, as the case may be) has happened upon
which any of the powers, authority and discretion conferred upon
Page 51
the Collateral Agent by or pursuant to the Conditional Assignment in relation to
the rights, title and interests under and in respect of the Project Document or
any part thereof is or may be exercisable by the Collateral Agent or otherwise
as to the appropriateness of acts purporting or intended to be in exercise of
any such powers.
This notice may not be revoked without the consent of the Thai Lenders, the
Trustees and the Debenture Trustee.
For the avoidance of doubt, references in this notice to the Project Document
shall be construed as references to the Project Document as the same may have
been or may from time to time be amended, novated or supplemented and shall
include any, document which is supplemental to, is expressed to be related to or
is entered into pursuant to or in accordance with the terms of the Project
Document. Except as otherwise provided herein, all words and expressions in this
notice shall have the same respective meanings as described in the Conditional
Assignment.
Please acknowledge receipt of this notice and confirm your agreement to the
terms hereof and to the Conditional Assignment in the form of Acknowledgment
attached hereto (the "Acknowledgment") by duly executing and returning one copy
of the Acknowledgment to the Collateral Agent at The Chase Manhattan Bank,
Bubhajit Building, 20 North Sathorn Road, Bangkok 10500 and another copy to the
Assignor.
This notice and the Acknowledgment shall be governed by and construed in
accordance with the laws of the Kingdom of Thailand.
Yours faithfully,
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
as Assignor
By: /s/ Sawasdi Horrungruang
-----------------------------
Title: Chairman
Page 52
We confirm our agreement with the foregoing.
THE CHASE MANHATTAN BANK
as Collateral Agent
By:
----------------------------
Name:
Title:
Attachment: Acknowledgment of the Counterparty
Page 53
Part B
Acknowledgment and Agreement
To: THE CHASE MANHATTAN BANK
20 North Sathorn Road
Silom, Bangrak
Bangkok 10500
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
No. 9, UM Tower, 16TH Floor
Kwaeng Suanluang, Khet Suanluang
Bangkok
We hereby acknowledge receipt of a notice of conditional assignment dated 12
March 1998, ("Notice of Conditional Assignment"), attaching a form of
Acknowledgment and Agreement. We now undertake and confirm to you that:
(i) we agree and consent to the terms of the Notice of Conditional Assignment;
(ii) we do not have, and will not make or exercise, any claims or demands, any
rights of counterclaim, rights of set-off or any other rights against the
Assignor in respect of the Project Documents;
(iii) we will give the Collateral Agent notice of any breach of the Project
Document by the Assignor as soon as we become aware of the same;
(iv) we have not received any other notice of assignment nor consented to any
other assignment of any rights or the transfer of obligations under the
Project Document;
(v) until the conditional assignment and transfer by way of novation of the
Project Document becomes effective, we regard the Assignor as liable to
perform all its obligations under the Project Document;
(vi) where a right to suspend our performance has arisen under the Project
Document, we will not exercise such right without first giving notice to
the Collateral Agent and allowing the Collateral Agent at least thirty
(30) days to remedy the situation, and we agree that if the Collateral
Agent remedies such situation within such period, we will continue to
perform our obligations under the Project Document;
(vii) where a right to terminate the Project Document has arisen thereunder, we
will not exercise such right without first giving notice to the Collateral
Agent and allowing the Collateral Agent at least thirty (30) days to
remedy the situation, and we agree that if the Collateral Agent remedies
such situation within such period, we will continue to perform our
obligations under the Project Document;
Page 54
(viii)we shall not, without the Collateral Agent's written consent, agree to or
concur in any action of the Assignor which would contravene any terms of
the Project Document or the Conditional Assignment; and
(ix) we agree to the Collateral Agent or the Designee being substituted as a
party to the Project Document in the place of the Assignor, and that such
the substitution shall become effective and, binding upon the Collateral
Agent and/or the Designee giving a Transfer Notice to us confirming that
the conditional assignment and transfer has become effective, as provided
in the Notice of Conditional Assignment.
Yours faithfully
- -------------------------------------
Klockner Stahl-Und Metallhandel Gmbh
12 March 1998
Page 55
EXHIBIT 3
Form of Transfer Notice
To: (1) Nakornthai Strip Mill Public Company Limited
No. 9, UM Tower, 16th Floor
Kwaeng Suanluang, Khet Suanluang
Bangkok, Thailand
(2) Klocklner Stahl-Und Metallhandel Gmbh
Neudorter Str. 3-5
D-47057 Dulsburg
Attention: Mr. R. Reinckel/
Mr. D. Frenzel
Dear Sirs,
We refer to:
(a) the Klockner Off-Take Agreement dated [12 March 1998] (the "Relevant
Agreement") between Nakornthai Strip Mill Public Company Limited (the
"Assignor") and Klockner Stahl-Und Metallhandel Gmbh in respect of [.];
(b) the Conditional Assignment of Project Document dated 12 March 1998 between
the Assignor and the Thai Lenders, the Trustees, the Debenture Trustee and
the Collateral Agent (the "Conditional Assignment of Project Documents");
and
(c) the Notice of Conditional Assignment dated 12 March 1998 given by the
Assignor to Klockner Stahl-Und Metallhandel Gmbh in respect of the
Conditional Assignment of Project Document and Klockner Stahl-Und
Metallhandel Gmbh acknowledgment thereof dated [.].
Words and expressions defined or referred to in the Conditional Assignment of
Project Document shall, unless the context otherwise requires, have the same
meanings when used herein.
We have received a Notice of an Actionable Default (as defined in the Security
Sharing Agreement) and we have been directed to deliver this Transfer Notice in
accordance with the provisions of Section 4 of the Security Sharing Agreement.
We hereby give you notice confirming that the conditional assignment and
transfer by way of novation of the Relevant Agreement became effective on the
date hereof.
We confirm that this Transfer Notice is delivered pursuant to Clause 2.1 of the
Conditional Assignment of Project Documents. In accordance with terms thereof,
we hereby are substituted as the party to the Relevant Agreement in place of the
Assignor and we hereby acquire rights and title under and interests in the
Relevant Agreement identical to those of the Assignor at the date
Page 56
hereof under the Relevant Agreement. We hereby assume all obligations towards
Klockner Stahl-Und Metallhandel Gmbh identical to the obligations owned by
Assignor as of the date hereof to Klockner Stahl-Und Metallhandel Gmbh under the
Relevant Agreement and the Assignor will cease to be entitled to exercise such
rights, but shall undertake to remain, jointly and severally with us, liable to
perform all obligations under the Relevant Agreement. With effect from the date
hereof all references in the Relevant Agreement to the Assignor shall be deemed
as references to us.
This Transfer Notice and the rights and obligation of the parties hereunder
shall be governed by and construed in accordance with the law of the Kingdom of
Thailand.
Yours faithfully,
[Collateral Agent/Designee]
for and on behalf of the Thai Lenders,
the Trustees and the Debenture Trustee
Page 57
Part A
Notice of Conditional Assignment
12 March 1998
To: Preussag Handel Gmbh
Schwannstr. 12 D-40476
Dusseldorf Germany
Attention: Mr. K. Thomas/
Mr. S. Muller
Dear Sirs:
We refer to the Preussag Off-Take Agreement dated 12 March 1998 between
Nakornthai Strip Mill Public Company Limited (the "Assignor") and yourselves
(the "Project Document").
We hereby give you notice that pursuant to the Conditional Assignment of Project
Documents made between the Assignor, the Thai Lenders, the Trustees, the
Debenture Trustee and the Collateral Agent (each as defined therein) dated 12
March 1998 (the "Conditional Assignment") the Assignor conditionally assigned
all rights, title and interest in and to the Project Document and conditionally
transferred all of its obligations under the Project Document to the Collateral
Agent for the benefit of the Thai Lenders, holders of the Notes and the holders
of Debentures, and agreed that when such conditional assignment becomes
effective, the Thai Lenders, the holders of the Notes and the holders of
Debentures may substitute the Collateral Agent or its Designee as a party to the
Project Document in the place of the Assignor.
This substitution shall become effective and binding upon giving a Transfer
Notice (and until such time as such Transfer Notice is rescinded in accordance
with the terms of the Security Sharing Agreement) to you confirming that the
conditional assignment and transfer by way of novation has become effective (the
"Transfer and Novation").
Upon the Transfer and Novation the Collateral Agent or the Designee, as the case
may be, shall acquire all rights, title and interest in the Project Document
identical to those of the Assignor and shall assume obligations toward you
identical to those obligations owed by the Assignor to you under the Project
Document. Upon the Transfer and Novation, the Assignor shall cease to be
entitled to exercise such rights, title and interest but shall undertake to
remain, jointly and severally with the Collateral Agent or the Designee, liable
to perform such obligations. After delivery of such Transfer Notice all
references in the Project Document to the Assignor shall be deemed as references
to the Collateral Agent or the Designee, as the case may be.
We hereby confirm that you may rely conclusively upon any Transfer Notice, when
daily issued and delivered to you and that you shall not be concerned to inquire
whether any Event of Default (as defined in the Bank Credit Facility, the
Indentures and the Debenture Indenture, as the case
Page 58
may be) has happened upon which any of the powers, authority and discretion
conferred upon the Collateral Agent by or pursuant to the Conditional Assignment
in relation to the rights, title and interests under and in respect of the
Project Document or any part thereof is or may be exercisable by the Collateral
Agent or otherwise as to the appropriateness of acts purporting or intended to
be in exercise of any such powers.
This notice may not be revoked without the consent of the Thai Lenders, the
Trustees and the Debenture Trustee.
For the avoidance of doubt, references in this notice to the Project Document
shall be construed as references to the Project Document as the same may have
been or may from time to time be amended, novated or supplemented and shall
include any document which is supplemental to, is expressed to be related to or
is entered into pursuant to or in accordance with the terms of the Project
Document. Except as otherwise provided herein, all words and expressions in this
notice shall have the same respective meanings as described in the Conditional
Assignment.
Please acknowledge receipt of this notice and confirm your agreement to the term
hereof and to the Conditional Assignment in the form of Acknowledgment attached
hereto (the "Acknowledgment") by duly executing and returning one copy of the
Acknowledgment to the Collateral Agent at The Chase Manhattan Bank, Bubhajit
Building, 20 North Sathorn Road, Bangkok 10500 and another copy, to the
Assignor.
This notice and the Acknowledgment shall be governed by and construed in
accordance with the laws of the Kingdom of Thailand.
Yours faithfully,
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
as Assignor
By: /s/ Sawasdi Horrungruang
-----------------------------
Title: Chairman
Page 59
We confirm our agreement with the foregoing.
THE CHASE MANHATTAN BANK
as Collateral Agent
By:
----------------------------
Name:
Title:
Attachment: Acknowledgement of the Counterparty
Page 60
Part B
Acknowledgment and Agreement
To: THE CHASE MANHATTAN BANK
20 North Sathorn Road
Silom, Bangrak
Bangkok 10500
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
No. 9, UM Tower, 16th Floor
Kwaeng Suanluang, Khet Suanluang
Bangkok
We hereby acknowledge receipt of a notice of conditional assignment dated 12
March 1998, ("Notice of Conditional Assignment"), attaching a form of
Acknowledgment and Agreement. We now undertake and confirm to you that:
(i) we agree and consent to the terms of the Notice of Conditional Assignment;
(ii) we do not have, and will not make or exercise, any claims or demands, any
rights of counterclaim, rights of set-off or any other rights against the
Assignor in respect of the Project Documents;
(iii) we will give the Collateral Agent notice of any breach of the Project
Document by the Assignor as soon as we become aware of the same;
(iv) we have not received any other notice of assignment nor consented to any
other assignment of any rights or the transfer of obligations under the
Project Document;
(v) until the conditional assignment and transfer by way of novation of the
Project Document becomes effective, we regard the Assignor as liable to
perform all its obligations under the Project Document;
(vi) where a right to suspend our performance has arisen under the Project
Document, we will not exercise such right without first giving notice to
the Collateral Agent and allowing the Collateral Agent at least thirty
(30) days to remedy the situation, and we agree that if the Collateral
Agent remedies such situation within such period, we will continue to
perform our obligations under the Project Document;
(vii) where a right to terminate the Project Document has arisen thereunder, we
will not exercise such right without first giving notice to the Collateral
Agent and allowing the Collateral Agent at least thirty (30) days to
remedy the situation, and we agree that if the
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Collateral Agent remedies such situation within such period, we will
continue to perform our obligations under the Project Document;
(viii)we shall not, without the Collateral Agent's written consent, agree to or
concur in any action of the Assignor which would contravene any terms of
the Project Document or the Conditional Assignment; and
(ix) we agree to the Collateral Agent or the Designee being substituted as a
party to the Project Document in the place of the Assignor, and that such
the substitution shall become effective and binding upon the Collateral
Agent and/or the Designee giving a Transfer Notice to us confirming that
the conditional assignment and transfer has become effective, as provided
in the Notice of Conditional Assignment.
Yours faithfully
- ------------------------------
Preussag Handel Gmbh
12 March 1998
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EXHIBIT 3
Form of Transfer Notice
To: (1) Nakornthai Strip Mill Public Company Limited
No. 9, UM Tower, 16th Floor
Kwaeng Suanluang, Khet Suanluang
Bangkok, Thailand
(2) Preussag Handel Gmbh
Schwannstr. 12
D-40476 Dusseldorf Germany
Attention: Mr. K. Thomas/
Mr. S. Muller
Dear Sirs,
We refer to:
(a) the Klockner Off-Take Agreement dated [12 March 1998] (the "Relevant
Agreement") between Nakornthai Strip Mill Public Company Limited (the
"Assignor") and Preussag Handel Gmbh in respect of [.]-
(b) the Conditional Assignment of Project Document dated 12 March 1998 between
the Assignor and the Thai Lenders, the Trustees, the Debenture Trustee and
the Collateral Agent (the "Conditional Assignment of Project Documents");
and
(c) the Notice of Conditional Assignment dated 12 March 1998 given by the
Assignor to Preussag Handel Gmbh in respect of the Conditional Assignment
of Project Document and Preussag Handel Gmbh acknowledgment thereof dated
[.].
Words and expressions defined or referred to in the Conditional Assignment of
Project Document shall, unless the context otherwise requires, have the same
meanings when used herein.
We have received a Notice of an Actionable Default (as defined in the Security
Sharing Agreement) and we have been directed to deliver this Transfer Notice in
accordance with the provisions of Section 4 of the Security Sharing Agreement.
We hereby give you notice confirming that the conditional assignment and
transfer by way of novation of the Relevant Agreement became effective on the
date hereof.
We confirm that this Transfer Notice is delivered pursuant to Clause 2.1 of the
Conditional Assignment of Project Documents. In accordance with terms thereof,
we hereby are substituted
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as the party to the Relevant Agreement in place of the Assignor and we hereby
acquire rights and title under and interests in the Relevant Agreement identical
to those of the Assignor at the date hereof tinder the Relevant Agreement. We
hereby assume all obligations towards Preussag Handel Gmbh identical to the
obligations owed by Assignor as of the date hereof to Preussag Handel Gmbh under
the Relevant Agreement and the Assignor will cease to be entitled to exercise
such rights, but shall undertake to remain, jointly and severally with us,
liable to perform all obligations under the Relevant Agreement. With effect from
the date hereof all references in the Relevant Agreement to the Assignor shall
be deemed as references to us.
This Transfer Notice and the rights and obligation of the parties hereunder
shall be governed by and construed in accordance with the law of the Kingdom of
Thailand.
Yours faithfully,
[Collateral Agent/Designee]
for and on behalf of the Thai Lenders,
the Trustees and the Debenture Trustee
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EXHIBIT 4
Project Documents
1. The SDI Agreement
2. The SDI License Agreement
3. The Shareholders Agreement
4. The Management Agreement
5. The Sriracha Harbor Lease
6. The Hylsa Agreement
7. The Off-take Agreements
8. The Employment Agreement
9. The Coal Supply Agreement
10. The Iron Ore Fines Agreement
11. The Sriracha Harbor Acknowledgment Letter
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