Exhibit 4.17
EXECUTION COPY
DATED AS OF 12TH MARCH, 1998
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
and
THE CHASE MANHATTAN BANK
--------------------------------------------------
CHARGE OVER SHARES
in
NSM STEEL COMPANY, LTD
--------------------------------------------------
MAPLES and CALDER
Asia
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THIS DEED OF CHARGE is made as of the 12th day of March, 1998.
BETWEEN:
1. NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED, a company incorporated under
the laws of Thailand and whose registered office is at 16th Floor, UM
Tower Building, 9 Ramkhamhaeng Road, Khet Suanluang, Bangkok 10250,
Thailand (the "Shareholder"); and
2. THE CHASE MANHATTAN BANK whose registered office is at 450 West 33rd
Street, New York, New York 10001, USA as trustee (in such capacities, the
"Trustee") under each of the Indentures referred to below and as
collateral agent (in such capacity, the "Collateral Agent") hereunder.
WHEREAS:
(A) NSM Steel Company, Ltd ("NSM Cayman") and NSM Steel (Delaware), Inc. ("NSM
Delaware") have, pursuant to a purchase agreement (the "Purchase
Agreement") dated 2nd March, 1998 between NSM Cayman, NSM Delaware, the
Shareholder and the purchasers named therein (the "Purchasers"), agreed to
issue up to $249,000,000 principal amount at maturity of 12% Senior
Mortgage Notes Due 2006 (the "Senior Notes") and US$175,010,000 (Gross
Proceeds) Representing 203,500 Units (the "Units" and together with the
Senior Notes, the "Offered Securities"), each Unit consisting of one 12
1/4% Senior Subordinated Mortgage Note Due 2008 with a principal amount at
maturity of US$1,000 (the "Senior Subordinated Notes" and together with
the Senior Notes, the "Notes") and 633.09266 warrants, each to purchase
one ordinary share, par value 10 Baht per share, of the Shareholder. In
connection with, and concurrently with the consummation of, the issuance
of the Offered Securities, NSM Cayman and NSM Delaware propose to
consummate 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").
(B) The Senior Notes will be constituted by a senior note indenture (the
"Senior Note Indenture") to be dated as of 1st March, 1998 between the
Shareholder, the Trustee, NSM Cayman and NSM Delaware. The Senior
Subordinated Notes will be constituted by a senior subordinated note
indenture (the "Senior Subordinated Note Indenture") to be dated as of 1st
March, 1998 between the Shareholder, the Trustee, NSM Cayman and NSM
Delaware. The obligations of NSM Cayman and NSM Delaware under the Notes,
the Senior Note Indenture and the Senior Subordinated Note Indenture are
referred to herein as the "Note Obligations". The Debentures will be
constituted by a debenture indenture (the "Debenture Indenture" and
together with the Senior Note Indenture and the Senior Subordinated Note
Indenture, the "Indentures") to be dated as of 1st March, 1998 between the
Shareholder, the Trustee, NSM Cayman and NSM Delaware. The obligations of
NSM Cayman and NSM Delaware under the Debentures and the Debenture
Indenture are referred to herein as the "Debenture Obligations".
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(C) Under the terms of the Indentures, the Shareholder has irrevocably and
unconditionally guaranteed the due and punctual payment of the principal
of, premium, if any, and interest on, and all other amounts payable under,
the Notes and the Debentures.
(D) The Shareholder is the legal and beneficial owner of the entire issued
share capital of NSM Cayman.
(E) One of the conditions precedent to the Purchase Agreement is that the
Shareholder enters into this Deed in favour of the Trustee and the
Collateral Agent for their benefit and the benefit of the holders of the
Notes and the Debentures, including any Depository therefor, (and each of
their respective successors or assigns) (such holders, the "Secured
Parties").
NOW THIS DEED WITNESSETH AS FOLLOWS:
1. INTERPRETATION
(1) Defined expressions
Words and expressions defined in the Indentures shall, unless the context
otherwise requires, have the same meanings when used in this Deed.
(2) Definitions
In this Deed, unless the context otherwise requires:
"Collateral Agent" includes the successors and permitted assigns of the
Collateral Agent.
"Encumbrance" has the same meaning as that ascribed to "Lien" in the
Indentures.
"Event of Default" has the meaning ascribed to it in the Indentures.
"Majority Noteholders" means the holders of a majority in principal amount
of the outstanding Senior Notes (the "Majority Senior Noteholders") or, as
the case may be, the Senior Subordinated Notes (the "Majority Senior
Subordinated Noteholders") or, as the case may be, the Debentures (the
"Majority Debenture Holders").
"Notes DSR Account" has the meaning ascribed to it in Annex A of the
Security Sharing Agreement.
"Offshore Revenue Account" has the meaning ascribed to it in Annex A of
the Security Sharing Agreement.
"Outstanding Indebtedness" means the aggregate outstanding indebtedness
under the Notes and the Debentures and all interest and other amounts from
time to time owing to the Trustee and/or the holders of the Notes and/or
the holders of the Debentures, under the Notes, the Debentures or each of
the Indentures.
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"Permitted Encumbrance" means this Deed or any other Encumbrance created
or expressly permitted to be created under the Indentures.
"Relevant Jurisdiction" means any jurisdiction in which or where the
Shareholder is incorporated, residents, domiciled, has a permanent
establishment, carries on or has a place of business or is otherwise
effectively connected.
"Secured Property" means the Shares and all stock, shares, warrants,
securities, rights, moneys or property (including the dividends, interest
or income thereon or therefrom) accruing or acquired at any time and from
time to time by way of redemption, purchase, bonus, preference, option, or
otherwise to or in respect of or derived from all or any of the Shares or
any derivatives thereof, including the proceeds of any sale of any of the
Shares.
"Security Sharing Agreement" has the meaning ascribed to it in the
Indentures.
"Shares" means the shares in the capital of NSM Cayman registered in the
name of the Shareholder and beneficially owned by the Shareholder details
of which are set out in Schedule 1 and shall include any other shares in
the capital of NSM Cayman which may hereafter be registered in the name
of, or beneficially owned by, the Shareholder and/or its nominees.
"Shareholder" includes the successors and permitted assigns of the
Shareholder.
"Trustee" includes the successors and permitted assigns of the Trustee.
(3) Headings
Clause headings are inserted for convenience of reference only and shall
not be taken into account in the interpretation of this Deed.
(4) Construction of certain terms
In this Deed, unless the context otherwise requires:
(a) References to clauses and schedules are to be construed as
references to clauses of, and schedules to, this Deed and references
to this Deed and its schedules.
(b) References to (or to any specified provision of) this Deed or any
other documents shall be construed as references to this Deed, that
provision or that document as in force for the time being as amended
in accordance with the terms thereof or, as the case may be, with
the agreement of the relevant parties, and where such consent is by
the terms of this Deed or the relevant document required to be
obtained as a condition to such amendment being permitted, the prior
written consent of the Trustee.
(c) References to a "regulation" include any present or future
regulation, rule, directive, requirement, request, guideline
(whether or not having the force of law)
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of any agency, authority, central bank or government department or
any self regulatory or other national or supra-national authority.
(d) Words importing the plural shall include the singular and vice
versa.
(e) References to a person shall be construed as references to an
individual, firm, corporation, unincorporated body of persons or any
government entity.
(f) References to any enactment shall be construed as references to such
enactment as re-enacted, amended or extended.
2. COVENANT TO PAY AND CHARGE
(1) Covenant to pay
The Shareholder hereby covenants and undertakes with the Trustee as
trustee under the Indentures that it will duly and punctually pay and
discharge to or to the order of the Trustee all of the Outstanding
Indebtedness whether as principal or surety and whether or not jointly
with another person, or in connection with the enforcement of this deed
all at the times and in the manner provided for in the Indentures.
(2) Charge
By way of security for the discharge and payment of the Outstanding
Indebtedness, the Shareholder as beneficial owner hereby charges and
agrees to charge to the Collateral Agent and as a continuing security for
the payment of all moneys and the discharge of all obligations and
liabilities hereby covenanted to be paid, by way of a first fixed charge,
all of its right, title and interest in and to all of the Secured
Property.
(3) Collateral Agent
The Trustee hereby irrevocably appoints and authorizes the Collateral
Agent to act as collateral agent for and on its behalf in respect of the
Secured Property on the same terms and conditions as provided under
Articles 3 and 4 of the Security Sharing Agreement and the Shareholder
hereby acknowledges, accepts and confirms the terms of such appointment;
provided, however, that for purpose of this Deed references in such
Articles 3 and 4 (i) to the "Secured Creditors" shall be deemed to be
references to the Secured Parties, (ii) to the "Security Documents" shall
be deemed to be references to this Deed, (iii) to the "Secured Creditors'
Representative" shall be deemed to be references to the Trustee, (iv) to
the "Shared Collateral" shall be deemed to be references to the Secured
Property (as defined herein), (v) to the "Collateral" shall be deemed to
be references to the Secured Property, (vi) to the "Credit Documents"
shall be deemed to be references to the Indentures, the Notes, the
Debentures and this Deed, (vii) to "Secured Indebtedness" and "Total
Secured Indebtedness" shall be deemed to be references to the Outstanding
Indebtedness, (viii) to the "Revenue Account, the Operating Account and
the Notes Sinking Fund Account" shall be deemed to be references to the
Notes DSR Account and
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the Offshore Revenue Account, (ix) to the "Issuers and the Company" shall
be deemed to be references to the Shareholder, (x) to "this Agreement"
when used alone and not in conjunction with the term "Security Documents"
shall be deemed to be references to this Deed, (xi) to "this Agreement"
when used in conjunction with the term "Security Documents" shall be
deemed to have been deleted; and all references to the "Thai Lenders", the
"Thai Facility Agent" and the "Bank Credit Facility" in such Articles 3
and 4 shall be deemed to have been deleted.
3. REPRESENTATIONS AND WARRANTIES
(1) Representations and warranties
The Shareholder hereby represents and warrants to the Collateral Agent
that:
(a) The Shareholder is the registered holder of the Shares and the
beneficial owner of and has full right and title to, and has hereby
charged, the Secured Property and the Shares are free from any
Encumbrance of any kind (other than the Encumbrances hereby created)
and are not, nor shall they be, subject to any option.
(b) The Shares are fully paid (or credited as fully paid) and
non-assessable, no calls have been, or can be, made in respect of
the Shares and the Shares constitute 100 per cent. of the issued
share capital of NSM Cayman.
(c) The Shareholder is duly incorporated and validly existing under the
laws of Thailand and has power and authority to carry on its
business as it is now being conducted and to own its property and
other assets.
(d) The Shareholder has the power and authority to execute, deliver and
perform its obligations under this Deed and all necessary corporate,
shareholder and other action has been taken to authorize the
execution, delivery and performance of the same.
(e) This Deed constitutes legal, valid and binding obligations of the
Shareholder enforceable in accordance with its terms.
(f) The execution and delivery of, the performance of its obligations
under, and the compliance by the Shareholder with the provisions of
this Deed will not (i) contravene any existing applicable law,
statute, rule, or regulation or any judgment, decree or permit to
which the Shareholder is subject, (ii) conflict with, or result in
any breach of any of the terms of, or constitute a default under,
any agreement or other instrument to which the Shareholder is a
party or is subject or by which it or any of its properties is
bound, (iii) contravene or conflict with any provision of the
Shareholder's constitutional documents, or (iv) result in the
creation or imposition of or oblige the Shareholder to create any
Encumbrance
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(other than a Permitted Encumbrance) on the Shareholder's
undertaking or on the Shareholder's assets, rights or revenues.
(g) No litigation, arbitration or administrative proceeding is taking
place, pending or, to the knowledge of the officers of the
Shareholder, threatened against the Shareholder which could have a
material adverse effect on the business, assets or financial
condition of the Shareholder.
(h) The choice by the Shareholder of Cayman Islands law to govern this
Deed and the submission by the Shareholder to the non-exclusive
jurisdiction of the Cayman Islands courts is legal, valid and
binding on the Shareholder.
(i) Every consent, authorization, license or approval of, or
registration with or declaration to, governmental or public bodies
or authorities or courts required by the Shareholder to authorize,
or required by the Shareholder in connection with, the execution,
delivery, validity, enforceability or admissibility in evidence of
this Deed or the performance by the Shareholder of its obligations
hereunder or thereunder has been obtained or made and is in full
force and effect and there has been no default in the observance of
any of the conditions or restrictions imposed in or in connection
with any of the same.
(j) The obligations of the Shareholder under this Deed are direct,
general and unconditional obligations of the Shareholder.
(k) The Shareholder has not taken or received any security or lien from
NSM Cayman in respect of any liability hereunder or in respect of
any other liability of NSM Cayman to the Shareholder.
(l) It is not necessary to ensure the legality, validity, enforceability
or admissibility in evidence of this Deed that it or any other
instrument be notarized, filed, recorded, registered or enrolled in
any court, public office or elsewhere in any Relevant Jurisdiction
on or in relation to this Deed and this Deed is in proper form for
its enforcement in the courts of any Relevant Jurisdiction.
(m) Neither the Shareholder nor any of its assets is entitled to
immunity on the grounds of sovereignty or otherwise from any legal
action or proceeding (which shall include, without limitation, suit,
attachment prior to judgment, execution or other enforcement).
(n) By virtue of the execution and delivery by the Shareholder of this
Deed, the Collateral Agent will obtain a valid and perfected first
fixed charge upon and security interest in all of the Secured
Property as security for the payment and discharge of the
Outstanding Indebtedness.
(o) All information set forth herein relating to the Secured Property is
accurate and complete in all material respects as of the date
hereof.
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(2) Repetition
Each of the representations and warranties contained in clause 3(l) shall
be deemed to be repeated by the Shareholder on each Interest Payment Date
until all moneys due or owing by NSM Cayman or NSM Delaware under the
Notes, the Debentures or the Indentures have been repaid in full as if
made with reference to the facts and circumstances existing on each such
day.
4. COVENANTS
(1) Supporting documents
The Shareholder hereby covenants with the Collateral Agent that during the
continuance of this Deed the Shareholder will at all times deposit with
the Collateral Agent and permit the Collateral Agent during the
continuance of this security to hold and retain:
(a) Certificates
all stock and share certificates and documents of title relating to
the Shares together with any other documents of title relating to
the Secured Property;
(b) Transfers
transfers of all Shares duly completed in favour of the Collateral
Agent or its nominees or otherwise as the Collateral Agent may
direct in the form set out in Schedule 2 together with letters of
authority in respect of such transfers in the form set out in
Schedule 3;
(c) Irrevocable proxies
an irrevocable proxy in respect of the Shares executed by the
Shareholder in favour of the Collateral Agent in the form set out in
Schedule 4 entitling the Collateral Agent to exercise, subject to
clause 5(l), all voting rights in respect of the Shares;
(d) Directors' resignation letters
executed but undated resignation letters from each director of NSM
Cayman in the form set out in Schedule 5 together with letters of
authority from each director of NSM Cayman in the form set out in
Schedule 6;
(e) Dividend mandate
an executed but undated dividend mandate in favour of the Collateral
Agent in the form set out in Schedule 7 together with a letter of
authority in respect of such mandate in the form set out in Schedule
8; and
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(f) Further documents
all such other documents as the Collateral Agent may from time to
time require for perfecting its title to the Shares and/or the
Secured Property or for vesting or enabling it to vest the same in
itself or its nominees or in any purchaser to the intent that the
Collateral Agent may at any time without notice present them for
registration.
(2) Continuing covenants
The Shareholder hereby further covenants with the Collateral Agent that
during the continuance of this Deed the Shareholder will at all times:
(a) Prompt payment
Duly and promptly pay all calls, installments or other payments
which from time to time become due in respect of any of the Shares.
(b) Negative undertakings
Not (without the prior written consent of the Collateral Agent):
(i) create or permit to subsist any Encumbrance (other than a
Permitted Encumbrance) on or over the Secured Property or any
part thereof or interest therein;
(ii) sell, transfer or otherwise dispose of the Secured Property or
any part thereof or interest therein or attempt or agree to do
so;
(iii) suffer or permit NSM Cayman to cancel, increase, create or
issue or agree to issue or put under option or agree to put
under option any share or loan capital or obligation now or
hereafter convertible into any class of share or loan capital
of or in NSM Cayman;
(iv) suffer or permit NSM Cayman to make any alteration to, grant
any rights in relation to or otherwise re-organize or purchase
or reduce share capital or reserves of NSM Cayman in any way
or enter into any composition or arrangement with its
creditors or any class of creditors of NSM Cayman;
(v) convene any meeting with a view either to the alteration of
any of the provisions of NSM Cayman's memorandum and articles
of association or to passing a resolution that NSM Cayman be
wound up; or
(vi) suffer or permit NSM Cayman to permit any person other than
the Shareholder to be registered as holders of Shares or any
part thereof.
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(c) Appointment of further directors
Duly and promptly notify the Collateral Agent of the appointment of
any further directors of NSM Cayman and thereafter duly and promptly
deliver to the Collateral Agent the letter or letters of resignation
and letter or letters of authority referred to in clause 4(l) duly
signed by such additional directors.
(d) Maintenance of value of security
Not do or cause to be done anything which in any way depreciates,
jeopardises or otherwise prejudices the value to the Secured Parties
of the security created by this Deed.
(e) Indebtedness due from NSM Cayman
Except pursuant to any of the Indentures, not demand or accept
repayment in whole or in part of any Indebtedness now or hereafter
due to the Shareholder from NSM Cayman or any other person liable or
demand or accept any security in respect of the same or assign or
charge the same as security.
(f) No set-off or counterclaim
Not claim any set-off or counterclaim against NSM Cayman or any
other person liable or claim or prove in the liquidation of NSM
Cayman or any other person liable or have the benefit of, or share
in, any payment from or composition with, NSM Cayman or any other
person liable for any Indebtedness of NSM Cayman or any other person
liable but so that, if so directed by the Collateral Agent, it will
prove for the whole or any part of its claim in the liquidation or
bankruptcy of NSM Cayman on terms that the benefit of such proof and
of all money received by it in respect thereof shall be held on
trust for each of the Secured Parties and applied in or towards
discharge of the liabilities and obligations of the Shareholder to
the Secured Parties under this Deed in such manner as the Collateral
Agent shall deem appropriate.
(g) No subrogation
Not exercise its rights of subrogation, reimbursement and indemnity
against NSM Cayman.
(h) Payments and compositions
Not have the benefit of any share in any payment or composition from
NSM Cayman or any other person or in any other guarantee or security
now or hereafter held by any agent of the holders of the Notes or
the Debentures.
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(i) No encumbrance
Not take or receive any Encumbrance from NSM Cayman in respect of
the liability of the Shareholder under this Deed.
(j) Reports and notices
Promptly send to the Collateral Agent a copy of every report or
other notice, statement or circular sent or delivered to the
Shareholder by NSM Cayman.
(3) Further covenants
The Shareholder hereby further covenants and agrees with the Collateral
Agent:
(a) Powers on default
The Collateral Agent and its nominees, at the discretion of the
Collateral Agent, may following the occurrence of any Event of
Default, exercise in the name of the Shareholder or otherwise at any
time whether pursuant to the powers conferred upon the Collateral
Agent under the irrevocable proxy referred to in clause 4(l)(c) and
whether before or after demand for payment and without any further
consent or authority on the part of the Shareholder in respect of
the Shares any voting rights.
(b) New registrations
Following an Event of Default, the Shareholder shall duly register
or procure that the directors of NSM Cayman duly register all
transfers of Shares from time to time lodged with them by or on
behalf of the Collateral Agent or its nominees and issue, and
deliver to the Collateral Agent, a new certificate or certificates
for the Shares in the name of the Collateral Agent or its nominees
as soon as possible following receipt of such transfers from the
Collateral Agent.
5. DIVIDENDS AND VOTING RIGHTS
(1) Voting rights
Unless and until an Event of Default has occurred and is continuing or the
Shareholder is in breach of any term of this Deed, the Shareholder shall
be entitled to exercise all voting and other rights vested in the holder
of the Shares provided that the Shareholder shall not exercise such rights
in a manner which would or might derogate from the security created by
this Deed or conflict with any provision of any of the Indentures.
(2) Dividend rights
If an Event of Default has occurred and is continuing or the Shareholder
is in breach of any term of this Deed, the Collateral Agent may (and shall
if the Trustee on behalf of and
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acting at the direction of the relevant Majority Noteholders so requires),
in accordance with clause 5(3), require that any dividends, interest or
other moneys which may be paid or payable in respect of the Secured
Property shall be paid to the Collateral Agent and shall be applied by the
Collateral Agent in accordance with clause 7(5) of this Deed. So long as
no Event of Default has occurred and is continuing and the Shareholder is
not in breach of any term of this Deed and so long as the payment of any
dividends does not constitute or give rise to a breach of any provision of
the Indentures, any such dividends shall be paid to the Shareholder.
(3) Delivery of dividend mandate
Upon the occurrence of an Event of Default or other breach referred to in
clause 5(2), the Collateral Agent may complete, date and deliver to NSM
Cayman the dividend mandate referred to in clause 4(l)(e).
(4) Payment of dividends and interest
Any dividends, interest or other moneys or property hereby charged which
may be received by the Shareholder after the power of sale under clause
7(l) has arisen shall be held in trust for the Collateral Agent and paid
or delivered to the Collateral Agent on demand in writing for application
in accordance with clause 7(5) of this Deed.
6. FURTHER ASSURANCE
(1) Execution of further charges
The Shareholder shall, at its own expense at any time if and when required
by the Collateral Agent, execute such further legal or other charges or
assignments in favour of the Collateral Agent as the Collateral Agent
shall from time to time reasonably require over all or any of the Secured
Property and all rights relating thereto both present and future
(including any substituted securities) and any other transfers or
documents the Collateral Agent may from time to time require for
perfecting its title to the same or for vesting or enabling it to vest the
same in itself or its nominees or in any purchaser to secure all moneys,
obligations and liabilities hereby covenanted to be paid or otherwise
hereby secured or to facilitate realisation of the Secured Property or the
exercise of the powers conferred on the Collateral Agent, such further
charges or assignments to be prepared by or on behalf of the Collateral
Agent at the cost of the Shareholder and to contain an immediate power of
sale without notice and such other clauses for the benefit of the Secured
Parties as the Collateral Agent may reasonably require.
(2) Registration
The Shareholder also undertakes at its own expense from time to time to
execute, sign, perfect, do and (if required) register every such further
assurance, document, act or thing as in the reasonable opinion of the
Collateral Agent may be necessary or desirable for the
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purpose of more effectually charging the Secured Property or perfecting
the security constituted or intended to be constituted by this Deed.
7. POWERS OF THE COLLATERAL AGENT
(1) Enforcement
At any time after the occurrence of an Event of Default or breach of the
terms of this Deed:
(a) Completion of transfers
the Collateral Agent and any nominee of the Collateral Agent
wheresoever situated may (and shall if the Trustee on behalf of and
at the direction of the relevant Majority Noteholders so requires)
complete the instruments of transfer in respect of the Shares
deposited with the Collateral Agent in accordance with clause
4(1)(b) by dating the same and may submit all or any of the said
instruments of transfer together with any stock or share
certificates in respect thereof for registration in the name of the
Collateral Agent or any nominee of the Collateral Agent and
thereafter the Collateral Agent and any nominee of the Collateral
Agent may exercise without further notice all the powers or rights
which may be exercisable by the registered holder of the Shares; and
(b) Application of dividends and interest
any dividends, interest or other payments which may be received or
receivable by the Collateral Agent or by any nominee of the
Collateral Agent in respect of any other Secured Property may be
applied by the Collateral Agent as though they were proceeds of
sale.
(2) Sale or disposal
In exercising the powers referred to in clause 7(l), the Collateral Agent
may Sell or dispose of the Secured Property or any part thereof at such
times in such manner for such consideration and generally on such terms
and conditions as the Collateral Agent may think fit. Any such sale or
disposition may be for cash, debentures or other obligations, shares,
stock, securities or other valuable consideration and be payable
immediately or by installments spread over such period as the Collateral
Agent shall think fit.
(3) No inquiry by purchaser
No purchaser or other person shall be bound or concerned to see or inquire
whether the security hereby constituted has become enforceable or whether
any power exercised or purported to be exercised by the Collateral Agent
has become exercisable nor be concerned with notice to the contrary or
with the propriety or regularity of the exercise or purported exercise of
such powers.
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(4) Receipt
Upon any sale of any of the Secured Property, the receipt of the
Collateral Agent for the purchase money shall effectually discharge the
purchaser or person paying the same therefrom and from being concerned to
see to the application or being answerable for the loss or misapplication
thereof.
(5) Application of proceeds
The proceeds of enforcement, collection or other realisation of all or any
part of the Secured Property pursuant hereto shall be paid to the
Collateral Agent. All such sums received by the Collateral Agent from any
sale of any of the Secured Property under the power hereby conferred shall
be applied as follows:
First: in or towards payment or satisfaction of an costs, charges,
fees, expenses and liabilities incurred and payments made by
and indemnities owed to (collectively "costs") the Collateral
Agent and any receiver, attorney, agent, delegate,
sub-delegate or other person (each a "receiver") appointed by
the Collateral Agent in accordance with the terms of this Deed
or the Indentures in connection with the performance of its
obligations hereunder or thereunder or the execution or
purported execution of any powers, authorities or discretions
vested in it or him pursuant hereto or thereto including
(without limitation to the generality of the foregoing) any
remuneration of the Collateral Agent;
Second: Pro-rata to: the Notes Depositary and the Notes Trustees in
payment for all Note Obligations that consist of costs
incurred in connection with the administration of the Note
Depositary Agreement and the applicable Indentures;
Third: To the payment in full of the Note Obligations (the amounts so
applied to be distributed among the Secured Parties ratably to
their respective entitlements of the applicable Secured
Parties (as the case may be) in accordance with the amounts of
the Note Obligations owed to them on the date of any such
distribution);
Fourth: To the Debenture Depositary and the Debenture Trustee in
payment for all Debenture Obligations that consist of costs
incurred in connection with the administration of the
Debenture Depositary Agreement and the Debenture Indenture;
Fifth: To the payment in full of the Debenture Obligations; and
Six: To the extent that any funds remain, to the Shareholder, to
such other person as the Shareholder may direct or as a court
of competent jurisdiction may otherwise direct.
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(6) Indemnity
The Shareholder hereby agrees and undertakes to indemnify the Collateral
Agent against all losses, actions, claims, expenses, demands, obligations
and liabilities whatsoever and whenever arising which may now or hereafter
be incurred by it or by any of its agents, officers or employees for whose
liability, act or omission it or they, or any of them may be answerable
(other than as may arise as a result of the negligence, wilful default or
fraud of the Collateral Agent or any of its agents, officers or employees)
in respect of, in relation to or in connection with anything done or
omitted to be done in the exercise or purported exercise of the powers
contained in this Deed or otherwise in connection therewith or with any
part of the Secured Property.
(7) Liability of Collateral Agent
The Collateral Agent shall not be liable to account as mortgagee in
possession in respect of all or any of the Secured Property and shall not
be liable for any loss upon realisation or for any neglect or default to
present any coupon, bond or stock drawn for repayment or for any failure
to pay any call or instalment or to accept any offer or to notify the
Shareholder of any such matter or for any other loss of any nature
whatsoever in connection with the Secured Property.
8. ATTORNEY
(1) Power of attorney
The Shareholder hereby irrevocably and by way of security appoints the
Collateral Agent and any person nominated for the purpose by the
Collateral Agent in writing under hand of an officer of the Collateral
Agent, with full power of substitution, to be its attorney and in its name
and on its behalf and as its act and deed or otherwise to sign, execute,
seal, deliver and complete any transfers of other documents which the
Collateral Agent may reasonably require for perfecting its title to or for
vesting the Secured Property in the Collateral Agent or its nominees or in
any purchaser and to make any alteration or addition to the Secured
Property comprised therein or any other alteration or addition and to
re-deliver the same thereafter and otherwise generally to sign, seal,
deliver and otherwise perfect any such transfers or other documents and
any legal or other charges or assignments over the Secured Property
referred to in clause 6 and to do all deeds, instruments, acts and things
as may be required for the full exercise of any rights or powers hereby
conferred including, for the avoidance of doubt, any sale or other
disposition, realisation or getting in of the Secured Property and the
shareholder hereby agrees forthwith on the request of the Collateral Agent
to ratify and confirm all that the attorney shall lawfully do or cause to
be done by virtue of these presents provided that the power of attorney
contained herein shall not be exercisable unless and until an Event of
Default has occurred.
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(2) Dealings with attorneys
The exercise of such power by or on behalf of the Collateral Agent shall
not put any person dealing with the Collateral Agent upon any enquiry as
to whether an Event of Default has occurred, nor shall any such person be
in any way affected by notice that no such event has occurred, and the
exercise by the Collateral Agent of such power shall be conclusive
evidence of its right to exercise the same.
(3) Filings
The Shareholder hereby irrevocably appoints the Collateral Agent to be its
attorney in its name and on its behalf and as its act and deed or
otherwise to agree the form of and to do and execute all deeds,
instruments, acts and things to file, record, register, or enroll this
Deed which the Collateral Agent may in its reasonable discretion consider
necessary or advisable, now or in the future, in order to ensure the
legality, validity, enforceability or admissibility in evidence of this
Deed.
9. CONTINUING SECURITY AND OTHER MATTERS
(1) Continuing security
It is agreed that the security created by this Deed and the obligations
and liabilities of the Shareholder and the rights, remedies and powers of
the Collateral Agent hereunder:
(a) shall be held by the Collateral Agent as a continuing security for
the payment in full of the Outstanding Indebtedness and the
performance and observance of and compliance with all of the
covenants, terms and conditions contained in this Deed or the
Indentures;
(b) shall be in addition to and shall not prejudice or affect, and may
be enforced by the Collateral Agent without prior recourse to any
other right or remedy held by or available to the Collateral Agent;
(c) may be enforced by the Collateral Agent without prior recourse to
any such security as is referred to in clause 9(l)(b) and the
Shareholder waives all rights it may have of first requiring the
Collateral Agent to enforce any such security or guarantee or to
proceed against or claim payment from NSM Cayman or any other
person;
(d) shall not be satisfied by any intermediate payment or satisfaction
of any part of the Outstanding Indebtedness or by any settlement of
accounts between NSM Cayman, the Shareholder or any other person who
may be liable to the Collateral Agent or the holders of the Notes or
the Debentures in respect of the Outstanding Indebtedness or any
part thereof;
(e) shall not in any way be prejudiced or affected by any time,
indulgence or relief being given by the Collateral Agent to NSM
Cayman or any other person, by any
-17-
amendment or supplement to the Indentures or the terms and
conditions of the Notes, or any other document, by the taking,
variation, compromise, renewal or release of or refusal or neglect
or perfection or enforcement of any right, remedy or security
against NSM Cayman or any Other person or by anything done or
omitted which but for this provision might operate to exonerate the
Shareholder;
(f) shall not in any way be prejudiced or affected by any change in the
constitution of, or any amalgamation or reconstruction of NSM Cayman
or any other person or by any legal limitation, disability,
incapacity or other circumstances relating to NSM Cayman or any
other person, whether or not known to any of the Secured Parties, by
any invalidity or irregularity or unenforceability of the
obligations of NSM Cayman or any other person under the Indentures
or otherwise and so that in the event that any obligation or
purported obligation of NSM Cayman or any other person which, if
enforceable or valid or continuing, would be secured by this Deed is
or becomes wholly or in part unenforceable or invalid or terminated
for any reason whatsoever, the Shareholder will keep the Secured
Parties fully indemnified against any loss suffered by it or them as
a result of any failure by NSM Cayman or such other party to perform
any such obligation or purported obligation; and
(g) shall remain in full force and effect as to all Outstanding
Indebtedness remaining unpaid, notwithstanding the discharge and
payment in full of any of the Note Obligations or the Debenture
Obligations, it being understood and agreed that upon any such
discharge of any of the Note Obligations or the Debenture
Obligations, the Shareholder, the Trustee and the Collateral Agent
shall enter into such conforming changes hereto as shall be
reasonably satisfactory to the Trustee confirming the rights
provided hereunder in respect of the remaining Outstanding
Indebtedness.
(2) Rights additional
All the rights, remedies and powers vested in the Collateral Agent
hereunder shall be in addition to and not a limitation of any and every
other right, power or remedy vested in the Collateral Agent under this
Deed, the Indentures or at law and all the powers so vested in the
Collateral Agent may be exercised from time to time and as often as the
Collateral Agent may deem expedient.
(3) No enquiry
The Collateral Agent shall not be obliged to make any enquiry as to the
nature or sufficiency of any payment received by it under this Deed or to
make any claim or take any action to collect any moneys receivable by the
Collateral Agent in the exercise of any powers conferred by this Deed or
to enforce any rights or benefits hereby assigned to the Collateral Agent
or to which the Collateral Agent may at any time be entitled under this
Deed.
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(4) Suspense account
Any money received by virtue of or in connection with the security created
by this Deed may be placed to the credit of a suspense account with a view
to preserving the rights of the Collateral Agent to prove for the whole of
the Outstanding Indebtedness against NSM Cayman in the event of any
proceedings in, or analogous to, liquidation, composition or arrangement.
(5) Settlements conditional
Any release, discharge or settlement between the Shareholder and the
Collateral Agent shall be conditional upon no security, disposition or
payment to any of the Secured Parties by NSM Cayman, the Shareholder or
any other person liable being void or set aside or ordered to be refunded
pursuant to any provisions or enactments relating to bankruptcy,
liquidation, administration or insolvency or for any other reason
whatsoever and if such condition shall not be fulfilled, the Collateral
Agent shall be entitled to enforce the security created by this Deed as if
such release, settlement or discharge had not occurred and any such
payment had not been made.
(6) No responsibility for loss
The Collateral Agent shall not be responsible for any loss occasioned by
the timing of the exercise of its powers under this Deed.
10. DISCHARGE OF SECURITY
Upon payment to the Collateral Agent of the Outstanding Indebtedness in
full, the security hereby constituted shall terminate and the Collateral
Agent shall, at the request and cost of the Shareholder, deliver, transfer
or cause to be released to the Shareholder or to such person or persons as
it shall direct the documents and other articles referred to in clause
4(l) and release and retransfer the Secured Property to the Shareholder or
to such person or persons as it shall direct, free and discharged from the
security hereby constituted such release to be without recourse to, or
warranty of, the Collateral Agent.
11. CERTIFICATES
Any certificates or determinations of the Collateral Agent as to the
amount owing by the Shareholder to any of the Secured Parties, or secured
by, this Deed shall, in the absence of manifest error, be conclusive and
binding on and against the Shareholder.
-19-
12. PAYMENTS
(1) No deductions
All payments to be made by the Shareholder under this Deed shall be made
in full without any set-off or counterclaim whatsoever and, subject as
provided in clause 12(2), free and clear of any deductions or withholdings
in US dollars on the due date to such account as the Collateral Agent
shall from time to time notify to the Shareholder.
(2) Gross-up taxation
If at any time the Shareholder is required to make any deduction or
withholding in respect of any taxes from any payment due under this Deed
for the account of the Collateral Agent, the sum due from the Shareholder
in respect of such payment shall be increased to the extent necessary to
ensure that, after the making of such deduction or withholding, the
Collateral Agent receives on the due date for such payment (and retains,
free from any liability in respect of such deduction or withholding) a net
sum equal to the sum which it would have received had no such deduction or
withholding been required to be made and the Shareholder shall indemnify
the Collateral Agent against any losses or costs incurred by reason of any
increased payment not being made on the due date for such payment. The
Shareholder shall promptly deliver to the Collateral Agent any receipts,
certificates or other proof evidencing the amounts (if any) paid or
payable in respect of any deduction or withholding as aforesaid.
(3) Currency indemnity
If any sum due from the Shareholder under this Deed has to be converted
from the currency (the "first currency") in which the same is payable
under this Deed into another currency (the "second currency") for the
purpose of (a) making or filing a claim or proof against the Shareholder
or (b) obtaining an order or judgment in any court or other tribunal, the
Shareholder shall indemnify and hold harmless the Collateral Agent from
and against any loss suffered as a result of any difference between (i)
the rate of exchange used for such purpose to convert the sum in question
from the first currency into the second currency and (ii) the rate or
rates of exchange at which the Collateral Agent may in the ordinary course
of business purchase the first currency with the second currency upon
receipt of a sum paid to it in satisfaction, in whole or in part, of any
such order, judgment, claim or proof. The term "rate of exchange" includes
any premium and costs of exchange payable in connection with the purchase
of the first currency with the second currency,
-20-
13. NOTICES AND OTHER MATTERS
(1) Notices
Each notice or other communication under this Deed shall be sent by fax or
letter to:
(a) the Shareholder at 16th Floor, UM Tower Building, 9 Ramkhamhaeng Road,
Khet Suanluang, Bangkok 10250, Thailand, fax no. +66 2 719 9828/9 (marked
for the attention of the Managing Director);
(b) the Collateral Agent at 450 West 33rd Street, New York, New York
10001, USA, fax no. + 1 212 946 8177 (ranked for the attention of
Corporate Trust Department),
or to such other fax number or address or marked for such other attention
as the relevant party may from time to time in writing notify the other
for the purposes of this Deed. Any such notice or communication shall be
deemed received at the opening of business on the next business day (if
sent by fax), or five business days after posting (if sent by airmail) or
when delivered (if sent by hand or courier) and, in the event that there
has been a change in such contact details which has not been notified to
the other party, it shall nonetheless be deemed received notwithstanding
such change in contact details. Any notice or other communication shall be
irrevocable.
(2) No waiver
No failure or delay by the Collateral Agent in exercising any right, power
or remedy vested in it under this Deed shall operate as a waiver thereof
nor shall any single or partial exercise or waiver of any right, power or
remedy. The remedies provided in this Deed are cumulative and are not
exclusive of any remedies provided by law.
(3) Severability
Each of the provisions of this Deed is severable and distinct from the
others and if at any time one or more of such provisions is or becomes
invalid, illegal or unenforceable the validity, legality and
enforceability of the remaining provisions hereof shall not in any way be
affected or impaired thereby.
(4) Delegation of powers
The Collateral Agent shall be entitled, at any time and as often as may be
expedient, to delegate all or any of the powers and discretions vested in
it by this Deed (including the power vested in it by virtue of clause 8)
in such manner, upon such terms and to such person as the Collateral Agent
in its absolute discretion may think fit.
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(5) Benefit of this Deed
This Deed shall be binding on, and inure for the benefit of, the
Shareholder, the holders of the Notes and the Debentures, the Trustee and
the Collateral Agent and their respective permitted successors and
assigns.
(6) Assignment by Shareholder
The Shareholder may not assign or transfer any of its respective rights or
obligations under this Deed without the prior written consent of the
Collateral Agent.
(7) Amendments
No modifications, waiver or agreement of any provision of this Deed shall
in any event be effective unless the same shall be in writing and signed
by the Shareholder, the Trustee and the Collateral Agent, provided,
however, that (i) no such modification, waiver or amendment shall
adversely affect any of the Collateral Agent's rights, indemnities or
rights to indemnification under this Deed or expand its duties or
obligations under this Deed without the prior written consent of the
Collateral Agent, and (ii) no such modification, waiver or amendment shall
(A) create any lien on the Secured Property or any part thereof or
terminate any part of the security interest of the Collateral Agent in all
or substantially all of the Secured Property or (B) deprive the holders of
the Notes or Debentures of any part of the security afforded hereunder, in
each case without the consent of (x) the Trustee on behalf of and acting
at the direction of the Majority Senior Noteholders and the Majority
Senior Subordinated Noteholders (unless the holders of the Senior Notes
and the Senior Subordinated Notes shall have released the Shareholder of
its obligations hereunder) and (y) the Trustee on behalf of and acting at
the direction of the Majority Debenture Holders.
14. GOVFRNING LAW AND JURISDICTION
(1) Governing law
This Deed is governed by, and shall be construed in accordance with the
laws of the Cayman Islands.
(2) Submission to jurisdiction
For the benefit of each of the Trustee, the Collateral Agent, the holders
of the Notes and the holders of the Debentures, the Shareholder hereto
irrevocably agrees that any legal action or proceedings arising out of or
in connection with this Deed against it or its assets may be brought in
the courts of the Cayman Islands and the Shareholder hereby submits to the
jurisdiction of such courts. The Shareholder agrees to appoint and empower
NSM Cayman at its registered office for the time being (currently Ugland
House, South Church Street, PO Box 309, George Town, Grand Cayman, Cayman
Islands) to receive, for and on its behalf, service of process issued out
of the courts of the Cayman Islands in any
-22-
such legal action or proceedings. The submission to such jurisdiction
shall not (and shall not be construed so as to) limit the right of the
Collateral Agent or the holders of the Notes or the Debentures to take
proceedings against the Shareholder in any other jurisdiction, whether
concurrently or not.
IN WITNESS whereof the parties have caused this Deed to be duly executed on the
day and year first above written.
EXECUTED as a deed by )
Mr. Sawasdi Horrungruang )
for and on behalf of )
NAKORNTHAI STRIP )
MILL PUBLIC ) /s/ Sawasdi Horrungruang
COMPANY LIMITED ) --------------------------
in the presence of: )
Witness's signature:
Name:
Address:
SIGNED for and )
on behalf of )
THE CHASE ) /s/ Valerie Dunbar
MANHATTAN BANK ) --------------------------
as Trustee )
SIGNED for and )
on behalf of )
THE CHASE ) /s/ Valerie Dunbar
MANHATTAN BANK ) --------------------------
as Collateral Agent )
-23-
SCHEDULE 1
The Shares
Name of shareholder: Nakornthai Strip Mill Public Company Limited
Number of shares: 1,000
Par value of each share: US$10.00
Share certificate no.: 001
-24-
SCHEDULE 2
Form of instrument of transfer
Instrument of transfer
We, Nakornthai Strip Mill Public Company Limited (the "Transferor"), for value
received DO HEREBY transfer to (the "Transferee") the 1,000 shares
standing in our name in the undertaking called
NSM STEEL COMPANY, LTD
to hold the same unto the Transferee subject to the memorandum and articles of
association thereof.
SIGNED for and on behalf )
of the Transferor )
NAKORNTHAI STRIP )
MILL PUBLIC ) --------------------------
COMPANY LIMITED )
in the presence of: )
Signature:
--------------------------
Name:
--------------------------
Address:
--------------------------
Date:
-25-
SCHEDULE 3
Form of shareholders' letter of authority
Date: 12th March, 1998
To: The Chase Manhattan Bank
450 West 33rd Street,
New York, New York 10001
USA
Dear Sirs,
NSM Steel Company, Ltd
We hereby unconditionally and irrevocably authorize you to date and otherwise
complete the instrument of transfer in respect of our shares in NSM Steel
Company, Ltd deposited by ourselves with you pursuant to the deed of charge (the
"Charge") dated 12th March, 1998 between ourselves and yourselves, as and when
you become entitled to date and complete the same pursuant to the terms of the
Charge.
Yours faithfully,
- --------------------------
For and on behalf of
Nakornthai Strip Mill
Public Company Limited
-26-
SCHEDULE 4
Form of irrevocable proxy
Date: 12th March, 1998
We, Nakornthai Strip Mill Public Company Limited, hereby appoint The Chase
Manhattan Bank as our proxy to vote at meetings of the shareholders of NSM Steel
Company, Ltd (the "Company") in respect of any existing or further shares in the
Company which may have been or may from time to time be issued to, us and/or
registered in our name. This proxy is irrevocable by reason of being coupled
with the interest of The Chase Manhattan Bank as chargee of the aforesaid
shares.
- --------------------------
For and on behalf of
Nakornthai Strip Mill
Public Company Limited
-27-
SCHEDULE 5
Form of directors' resignation letter
Date:
To: NSM Steel Company, Ltd
Ugland House
South Church Street
George Town
Grand Cayman
Cayman Islands
Dear Sirs,
NSM Steel Company, Ltd
I hereby resign as a director/officer of the Company and confirm that I have no
right to compensation or claims against the Company for loss of office, arrears
of pay or otherwise.
Yours faithfully,
- --------------------------
Director
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SCHEDULE 6
Form of directors' letter of authority
Date: 12th March, 1998
To: The Chase Manhattan Bank
450 West 33rd Street,
New York, New York 10001
USA
Dear Sirs.
NSM Steel Company, Ltd
I hereby unconditionally and irrevocably authorize you to date and otherwise
complete the resignation letter in respect of NSM Steel Company, Ltd deposited
by me with you. pursuant to the deed of charge (the "Charge") dated 12th March,
1998 between Nakornthai Strip Mill Public Company Limited and yourselves, as and
when you become entitled to date and complete the same pursuant to the terms of
the Charge.
Yours faithfully,
- --------------------------
Director
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SCHEDULE 7
Form of dividend mandate
Date:
To: NSM Steel Company, Ltd
Ugland House
South Church Street
George Town
Grand Cayman
Cayman Islands
Dear Sirs,
NSM Steel Company, Ltd - Dividend mandate
With effect from today's date and pending receipt by you of instructions from
ourselves and The Chase Manhattan Bank to the contrary we, Nakornthai Strip Mill
Public Company Limited, hereby authorize you to pay any dividends, interest or
other moneys paid or payable on the shares in NSM Steel Company, Ltd registered
in our name to or to the order of The Chase Manhattan Bank of 450 West 33rd
Street, New York, New York 10001, USA.
Yours faithfully,
- --------------------------
For and on behalf of
Nakornthai Strip Mill
Public Company Limited
-30-
SCHEDULE 8
Form of dividend mandate letter of authority
Date: 12th March, 1998
To: The Chase Manhattan Bank
450 West 33rd Street,
New York, New York 10001
USA
Dear Sirs,
NSM Steel Company, Ltd
We hereby unconditionally and irrevocably authorize you to date and otherwise
complete the dividend mandate in respect of our shares in NSM Steel Company, Ltd
deposited by ourselves with you pursuant to the deed of charge (the "Charge")
dated 12th March, 1998 between ourselves and yourselves, as and when you become
entitled to date and complete the same pursuant to the terms of the Charge.
Yours faithfully,
- --------------------------
For and on behalf of
Nakornthai Strip Mill
Public Company Limited