Exhibit 10.06
US$150,000,000
SYNDICATED OFFSHORE BILL DISCOUNT FACILITY
Dated March 12, 1998
Between
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
(the Company)
and
BANQUE NATIONALE DE PARIS
(the Agent and Arranger)
and
THE BANKS herein referred to
SHEARMAN & STERLING
SINGAPORE
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Defined Terms.............................................1
SECTION 1.02. Construction..............................................8
SECTION 1.03. Computation of Time Periods...............................9
ARTICLE II
THE FACILITY AND CONDITIONS PRECEDENT
TO GRANT OF FINANCIAL ACCOMMODATION
SECTION 2.01. Grant of Facility.........................................9
SECTION 2.02. Condition Precedent Documents.............................9
ARTICLE III
FUNDING PROVISIONS
SECTION 3.01. Request for Payments......................................9
SECTION 3.02. Making Payments..........................................10
SECTION 3.03. Maximum Amount...........................................10
SECTION 3.04. Notices Irrevocable......................................10
SECTION 3.05. Termination or Reduction of the Commitments..............11
SECTION 3.06. Banks Obligations Several................................11
SECTION 3.07. Each Banks Participation.................................11
SECTION 3.08. Payment by Offtakers.....................................11
ARTICLE IV
COMPUTATIONS AND PAYMENTS
SECTION 4.01. Computations.............................................11
SECTION 4.02. Discount Period..........................................12
SECTION 4.03. Payments to the Agent....................................12
SECTION 4.04. Payments by the Agent....................................12
SECTION 4.05. Notice to Banks..........................................12
SECTION 4.06. Clawback.................................................12
ARTICLE V
INDEMNITY
SECTION 5.01. Indemnity................................................12
SECTION 5.02. Costs and Expenses.......................................13
(i)
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SECTION 5.03. Banks' Liabilities for Costs.............................14
SECTION 5.04. Survival.................................................14
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default........................................14
SECTION 6.02. Notice...................................................16
ARTICLE VII
SHARING
SECTION 7.01. Redistribution of Payments...............................16
SECTION 7.02. Repayable Recoveries.....................................16
ARTICLE VIII
FEES
SECTION 8.01. Fees.....................................................17
ARTICLE IX
INCREASED COSTS
SECTION 9.01. Increased Costs, Etc.....................................17
SECTION 9.02. Taxes....................................................17
SECTION 9.03. Certificates.............................................18
ARTICLE X
AGENCY PROVISIONS
SECTION 10.01. Appointment of the Agent................................18
SECTION 10.02. Agent's Discretions.....................................18
SECTION 10.03. Agent's Obligations.....................................19
SECTION 10.04. Excluded Obligations....................................20
SECTION 10.05. Indemnification.........................................20
SECTION 10.06. Exclusion of Liabilities................................20
SECTION 10.07. No Actions..............................................20
SECTION 10.08. Business with any Transaction Party.....................20
SECTION 10.09. Resignation.............................................20
SECTION 10.10. Successor Agent.........................................21
SECTION 10.11. Rights and Obligations..................................21
SECTION 10.12. Own Responsibility......................................21
SECTION 10.13. Agency Division Separate................................21
SECTION 10.14. Confidential Information................................22
SECTION 10.15. Safe Custody............................................22
SECTION 10.16. Delegation..............................................22
(ii)
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ARTICLE XI
ASSIGNMENTS AND TRANSFERS
SECTION 11.01. Binding Agreement.......................................22
SECTION 11.02. No Assignments and Transfers by the Company.............22
SECTION 11.03. Assignments and Transfers by Banks......................22
SECTION 11.04. Assignments by Banks....................................23
SECTION 11.05. Transfers by Banks......................................23
SECTION 11.06. Transfer Fees...........................................23
SECTION 11.07 Disclosure of Information................................23
ARTICLE XII
AMENDMENTS
SECTION 12.01. Amendment Procedures....................................24
SECTION 12.02. Amendment Costs..........................................25
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01. Amendments, Etc..........................................25
SECTION 13.02. Notices, Etc.............................................25
SECTION 13.03. No Waiver-, Remedies.....................................25
SECTION 13.04. Right of Set-off.........................................25
SECTION 13.05. Execution in Counterparts................................26
SECTION 13.06. Jurisdiction, Etc........................................26
SECTION 13.07. Governing Law............................................26
SECTION 13.08. Service of Process.......................................26
Appendix 1 Conditions Precedent
Appendix 2 Commitments
Exhibit 1 Form of Request for Payment
Exhibit 2 Form of Bill of Exchange
Exhibit 3 Form of Guarantee and Indemnity
Exhibit 4 Form of Transfer Certificate
Exhibit 5 Certificate of Offtaker
Exhibit 6 Certificate of Company
Exhibit 7 Certificate of Offtaker
(iii)
Page 1
SYNDICATED OFFSHORE BILL DISCOUNT FACILITY AGREEMENT
This SYNDICATED OFFSHORE BILL DISCOUNT FACILITY AGREEMENT dated
March 12, 1998 is made between Nakornthai Strip Mill Public Company Limited (the
"Company"), Banque Nationale de Paris as agent (the "Agent") and arranger (the
"Arranger"), and each of the banks and financial institutions listed in Appendix
2 (the "Banks")
WHEREAS:
(1) The Company has entered into certain offtake agreements with
Klockner Steel Trading GmbH ("KST") and Preussag Handel GmbH ("Preussag")
pursuant to which KST and Preussag will purchase steel products from and make
payment in respect thereof to the Company;
(2) The Company has arranged with the Offtakers to draw Bills of
Exchange (the Face Amount of which will correspond to an amount due under an
Offtake Agreement) upon the Offtakers, in favour of the Banks as payee;
(3) Upon acceptance of such Bills of Exchange by the Offtakers and
delivery thereof to the Agent, the Banks will advance the Discounted Amount of
such Bills of Exchange to the Company.
NOW, IT IS HEREBY AGREED as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Defined Terms. Unless the context otherwise requires,
the following terms shall have the following meanings when used in this
Agreement:
"Agent" means Banque Nationale de Paris, acting through its London
branch or any successor as agent of the Banks hereunder.
"Agent Offshore Account" means the account so designated by the
Agent in a written notice to the Company.
"Applicable Margin" means 0.40% per annum provided always that so
long as any Event of Default attributable to the Company, an Offtaker
accepting a Bill of Exchange or a Guarantor guaranteeing a Bill of
Exchange is continuing the Applicable Margin applying to the relevant Bill
of Exchange shall be 2.40%.
"Arranger" means Banque Nationale de Paris, acting through its New
York branch.
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"Authorised Director" means in relation to the Company, a director
of the Company who has been duly authorised, whether alone or jointly with
one or more Authorised Directors, to bind the Company and who has been
duly registered as such by the Commercial Registration Department,
Ministry of Commerce, Thailand, including any person duly authorised to
bind the Company under a power of attorney duly executed by the Authorised
Directors.
"Bank" means any of those banks listed in Appendix 2 and their
respective successors and any permitted transferees or assignees and
"Banks" shall be construed accordingly.
"Bill of Exchange" means a bill of exchange in the form of Exhibit 2
drawn by the Company and accepted by an Offtaker naming the Agent in its
capacity as agent for and on behalf of itself and the Banks as payee.
"Business Day" means a day of the year on which banks are not
required or authorised by law to close in New York City, London, Singapore
or Bangkok.
"Change in Control" means (i) any sale or transfer or other
disposition by any US Investor of 20% or more of its shareholding in the
Company (excluding transfers between the US Investors); or (ii) the US
Investors ceasing in the reasonable opinion of the Agent to maintain
operational control of or to manage the Company pursuant to the Management
Agreement or otherwise or the Management Agreement ceasing to be in full
force and effect with the parties thereto as at the date of execution
thereof.
"Commitment" means in relation to a Bank, the amount in US Dollars
set opposite its name in Appendix 2, or as applicable, the amount set out
in a Transfer Certificate for such Bank, in any case to the extent not
reduced or cancelled hereunder.
"Discounted Amount" means in relation to any Bill of Exchange, the
net present value on the Payment Date of the Face Amount of the Bill of
Exchange as calculated by the Agent applying the Discount Rate for the
applicable Discount Period.
"Discount Period" means, in respect of a Bill of Exchange, the
period commencing on the Payment Date proposed in respect of such Bill of
Exchange and ending on the Maturity Date of such Bill of Exchange.
"Discount Rate" means the sum of (a) SIBOR; and (b) the Applicable
Margin after taking into account any adjustment required pursuant to the
terms of Sections 9.01 and 9.02.
"Encumbrance" means any mortgage, charge, pledge, lien, encumbrance,
right of set off, assignment by way of security, retention of title or any
security interest whatsoever or any agreement or arrangement having the
effect of conferring security or a preferential arrangement howsoever
created or arising.
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"Equity Investors" means Steel Dynamics, Inc, Enron Capital and
Trade Resources, McDonald & Company Securities, Inc., Quantum Emerging
Group Fund, the State of Wisconsin Investment Board and John Hancock
Mutual Life Insurance Company.
"Event of Default" means any of the events described in Section
6.01.
"Face Amount" means in respect of a Bill of Exchange, the amount
specified therein as being payable on the Maturity Date.
"Facility" means the facility provided by the Banks to the
Company and described in Section 2.01.
"Facility Office" means, in relation to the Agent or any Bank, the
office identified with its signature below (or, in the case of a
Transferee, at the end of the Transfer Certificate to which it is a party
as Transferee) or such other office as it may from time to time select.
"Final Maturity Date" means 31 December 2000.
"Germany" means the Federal Republic of Germany and any relevant
political subdivision of it or in it, including any relevant government
agency thereof..
"Guarantee" means a guarantee from the Guarantor in favour of the
Agent for and on behalf of itself and the Banks guaranteeing the
obligations of KST substantially in the form of Exhibit 3 hereto.
"Guarantor" means Klockner & Co. AG.
"Initial Payment" means the first Payment made by the Banks to
the Company hereunder.
"Insolvency Event" means
(i) in relation to any person, in any jurisdiction, the passing of
any resolution by its directors (or an equivalent executive body) or by
its shareholders, the taking of any irrevocable proceedings by such person
for, or the convening of a meeting by such person to consider, or the
advertising of a petition, or the giving of any judgement, the making of
any order or direction by any judicial, governmental or official authority
or agency of any kind in any jurisdiction for, or in respect of:
(a) the bankruptcy, liquidation or dissolution of such person
or any termination of its independent corporate existence (whether
by merger or otherwise);
(b) the appointment of any liquidator, trustee, administrator,
administrative receiver, receiver or similar officer in respect of
such person;
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(c) the vesting, taking possession or assumption of all or
substantially all of the assets, or the control, management or
supervision of the affairs, of such person by any such authority or
agency, any officer of, or any person appointed by or representing,
any such authority or agency, or any of the creditors of such person
or any person appointed by, or representing, any such creditor;
(d) any moratorium, composition, re-scheduling,
re-organisation, scheme or other arrangement with, or involving, or
assigm-nent for the benefit of, the creditors of such person or any
class of them;
(e) the subjecting of such person to, or the obtaining of any
relief for such person under, any laws relating to insolvency;
(f) any formal admission by or on behalf of such person or any
judgement, order, declaration or finding by or on behalf of any such
authority or agency that such person is insolvent or is unable, or
has ceased, to pay its debts as they become due; or
(g) any other event the occurrence of which has the same or a
substantially similar effect in any jurisdiction to any of the
foregoing; or
(ii) any Offtaker or the Guarantor communicating to the Company, in
writing signed by a duly authorised individual (a certified true copy
having been delivered to the Agent), that such Offtaker or the Guarantor
is financially unable to pay a Bill of Exchange.
"KST Offtake Agreement" means the agreement dated November 18, 1997
and made between KST and the Company on the terms and subject to the
conditions of which KST is obliged to purchase certain steel products
manufactured by the Company.
"Majority Banks" means at any time, Banks whose Commitments then
total more than 66 2/3% of the Total Commitments.
"Management Agreement" has the meaning ascribed to it in the
Offering Memorandum.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Transaction Party.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Transaction Party, (b) the rights and
remedies of the Agent and/or the Banks under any Transaction Document or
(c) the ability of any Transaction Party to perform its obligations under
any Transaction Document to which it is or is to be a party.
"Maturity Date" means, in respect of a Bill of Exchange, the date on
which the relevant Bill of Exchange becomes payable as specified therein.
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"Offering Memorandum" means the Offering Memorandum dated March 2,
1998 distributed in connection with the offering of the Senior Notes and
Senior Subordinated Notes.
"Offtaker" means KST and/or Preussag, as the case may be.
"Offtake Agreements" means the KST Offtake Agreement and the
Preussag Offtake Agreement and "Offtake Agreement" shall be construed
accordingly.
"Onshore Facility Agreement" means the onshore bill discount
facility agreement of even date herewith entered into between the Company,
Banque Nationale de Paris as agent and arranger and the banks identified
therein.
"Other Taxes" has the meaning ascribed to it in Section 9.02(b).
"Outstanding Pavment" means any Payment in respect of which the
corresponding Bill of Exchange has not been fully satisfied and discharged
(and the amount paid in respect of such satisfaction and discharge has not
been returned).
"Payment" means the US Dollar Discounted Amount of a US Dollar
denominated Bill of Exchange that has been accepted by an Offtaker,
advanced in accordance with Article III.
"Payment Date" means the Business Day on which a Payment is made by
the Banks to the Company in accordance with Article III hereof.
"Potential Event of Default" means an event which with the passage
of time, the giving of notice, the making of a determination or any
combination thereof shall constitute an Event of Default.
"Preussag Offtake Apreement" means the agreement dated November 18,
1997 and made between Preussag and the Company on the terms and subject to
the conditions of which Preussag is obliged to purchase certain steel
products manufactured by the Company.
"Private Placement" has the meaning ascribed to it in the
Offering Memorandum.
"Project" means the development, construction, operation,
management, maintenance and financing of a thin-slab cold flat-rolled
steel mini-mill located in Chonburi, Thailand.
"Related Documents" means the Offering Memorandum, the Senior Notes,
the Senior Guaranty, the Senior Subordinated Notes, the Senior
Subordinated Guaranty, the New Credit Facility, the Bank Credit Facility,
the Indentures, the Security Documents and each Project Document, in each
case as defined in the Offering Memorandum.
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"Request for Payment" means a request for a Payment submitted in
accordance with Article II and substantially in the form of Exhibit 1
hereto.
"Revenue Account" means the account of the Company maintained with
The Chase Manhattan Bank, New York, or such other account as the Company
and the Agent may from time to time designate as the "Revenue Account".
"Senior Notes" has the meaning ascribed to it in the Offering
Memorandum.
"Senior Subordinated Notes" has the meaning ascribed to it in the
Offering Memorandum.
"SIBOR" means in relation to any Payment , on any day during any
period by reference to which the Discount Rate is to be calculated
thereon, the rate per annum determined by the Agent to be equal to the
arithmetic mean (rounded upwards, if necessary to the nearest whole
multiple of one-sixteenth of one per cent.) of the respective rates of
each of the banks whose rates appear on the screen page designated "SIBO"
(or the equivalent successor to such page) published or reported by
Reuters Limited on the Reuters monitor screen as the rate at which it is
offering deposits in US Dollars for a period comparable to that for which
such rate is to be determined in the Singapore interbank market at or
about 11.00 a.m. on the second Business Day before the proposed Payment
Date provided that if (a) for any such period only one or no banks have a
quotation of SIBOR appearing on such screen or (b) the rate determined as
SIBOR as aforesaid is, in the opinion of the Agent, manifestly incorrect,
then SIBOR, in relation to any such period, shall be the rate quoted by
the Agent for deposits in dollars in an amount comparable to the amount of
the Payment for such period at or about 11.00 a.m. on the second Business
Day prior to the proposed Payment Date.
"Solvent" means with respect to any person on a particular date,
that on such date (a) the fair value of the property of such person is
greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such person, (b) the present fair
saleable value of the assets of such person is not less than the amount
that will be required to pay the probable liability of such person on its
debts as they become absolute and matured, (c) such person does not intend
to, and does not believe that it will, incur debts or liabilities beyond
such person's ability to pay such debts and liabilities as they mature and
(d) such person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that,
in the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual
or matured liability.
"Subsidiary" means in relation to a company or corporation, any
company or corporation:
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(a) which is controlled, directly or indirectly, by the
first-mentioned company or corporation;
(b) more than half the issued share capital of which is beneficially
owned, directly or indirectly, by the first-mentioned company or
corporation; or
(c) which is a Subsidiary of another Subsidiary of the
first-mentioned company or corporation
and, for these purposes, a company or corporation shall be treated
as being controlled by another if that other company or corporation is
able to direct its affairs and/or to control the composition of its board
of directors or equivalent body.
"Taxes" has the meaning ascribed to it in Section 9.02(a)
"Thailand" means the Kingdom of Thailand and any relevant political
sub-division of it or in it, including any relevant government agency
thereof.
"Total Commitments" at any time means the sum of the Commitments
of each of the Banks at that time.
"Transaction Documents" means (i) this Agreement; (ii) each Bill of
Exchange; (iii) (for so long as the Guarantor is a Transaction Party) the
Guarantee; (iv) any agreement entered into between the Company and the
Agent including with respect to the payment of fees or other amounts
relating to the Facility including the fee letter contemplated by Section
8.01(b).
"Transaction Party" means the Company any Offtaker and the Guarantor
provided that where any such party other than the Company has no
outstanding obligations under any Bill of Exchange and no contingent
obligations under the Guarantee, the Company may by written notice to the
Agent remove such party as a Transaction Party for the purposes hereof,
whereupon such party shall be deemed not to be a Transaction Party.
"Transfer Certificate" means a certificate substantially in the form
set out in Exhibit 4 signed by a Bank and a Transferee whereby:
(a) such Bank seeks to procure the transfer to such Transferee of
all or a part of such Bank's rights, benefits and obligations hereunder as
contemplated in Section 11.03; and
(b) such Transferee undertakes to perform the obligations it will
assume as a result of delivery of such certificate to the Agent as is
contemplated in Section 11.05.
"Transfer Date" means, in relation to any Transfer Certificate, the
date for the making of the transfer as specified in the schedule to such
Transfer Certificate.
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"Transferee" means a bank or other financial institution to which a
Bank seeks to transfer all or part of such Bank's rights, benefits and
obligations hereunder.
"US Dollar or US$" means the lawful currency of the United States.
"US Investor" means Steel Dynamics, Inc., Enron Capital and Trade
Resources and McDonald & Company Securities, Inc.
SECTION 1.02. Construction.
(a) Each reference to any contract or agreement is to the relevant
contract or agreement and any schedules and annexes to the relevant contract or
agreement as the same may be amended, varied, supplemented or novated from time
to time;
(b) Headings are for ease of reference only and are to be ignored in
construing this Agreement; and
(c) A reference:
(i) to a person shall, as the context requires, include an
individual, partnership, body corporate, unincorporated association
or state, governmental or quasi-governmental entity or agency;
(ii) in one gender shall, as the context requires, include the
other genders;
(iii) to a "month" is a reference to a period starting on one
day in a calendar month and ending on the numerically corresponding
day in the next calendar month, except that, if such period starts
on the last day in a calendar month or there is no numerically
corresponding day in the month in which that period ends, that
period shall end on the last Business Day in such later calendar
month;
(iv) to "assets" includes properties, revenues and rights of
every description present, future and contingent;
(v) to a statute shall be construed as a reference to such
statute as the same may have been, or from time to time be, amended
or re-enacted; and
(vi) to a word importing the singular shall include the plural
and vice versa.
(vii) the "equivalent" on any given date in one currency (the
"first currency") of an amount denominated in another currency (the
"second currency") is a reference to the amount of the first
currency which could be purchased with the amount of the second
currency at the spot rate of exchange
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quoted by the Agent at or about 11.00 a.m. on such date for the
purchase of the first currency with the second currency;
(viii) to "including" shall be construed as a reference to
"including without limitation"; and
(ix) to a "law" includes common or customary law and any
constitution, decree, judgment, legislation, order, ordinance,
regulation, statute, treaty or other legislative measure in any
jurisdiction or any present or future directive, regulation, request
or requirement (in each case, whether or not having the force of law
but, if not having the force of law, the compliance with which is in
accordance with the general practice of persons to whom the
directive, regulation, request or requirement is addressed);
(x) "VAT" shall be construed as a reference to value added tax
including any goods and services or similar tax which may be imposed
from time to time.
SECTION 1.03. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
ARTICLE II
THE FACILITY AND CONDITIONS PRECEDENT TO
GRANT OF FINANCIAL ACCOMMODATION
SECTION 2.01. Grant of Facility. The Banks grant to the Company,
upon the terms and subject to the conditions hereof, a bills of exchange
discount facility in an aggregate total amount of US$150,000,000.
SECTION 2.02. Condition Precedent Documents. Save as the Agent
(acting on the instructions of the Majority Banks) may otherwise agree, the
Company may not deliver any Request for Payment hereunder unless the Agent has
confirmed to the Company that it has received all of the documents referred to
in Part I of Appendix 1 and that each is, in form and substance, satisfactory to
the Agent and that all other conditions referred to therein have been met, to
the satisfaction of the Agent.
ARTICLE III
FUNDING PROVISIONS
SECTION 3.01. Request for Payments. A Payment will be made by the
Banks to the Company in respect of a Bill of Exchange if:
(a) four Business Days before the proposed date for the making of
such Payment, the Agent has received from the Company a Request for
Payment;
Page 10
(b) the proposed date for the making of such Payment is a Business
Day which falls on or before the day which is 60 days prior to the Final
Maturity Date;
(c) the proposed date for the making of such Payment is not less
than five Business Days after the date upon which the previous Payment (if
any) was made hereunder;
(d) the proposed amount of such Payment is an amount which is less
than or equal to the amount of the Total Commitments less the Outstanding
Payments;
(e) (i) the Event of Default described in Section 6.01 (a) shall not
have occurred and be continuing; and (ii) no other Event of Default or
Potential Event of Default has occurred on and as of the proposed date for
the making of such Payment and is attributable to the Offtaker accepting
the Bill of Exchange to which such Payment relates or the Guarantor
guaranteeing payment of such Bill of Exchange; and
(f) four Business Days before the proposed Payment Date the Agent
has received all of the documents referred to in Part 2 of Appendix 1 and
each is in form and substance satisfactory to the Agent and all otber
conditions referred to therein have been met, to the satisfaction of the
Agent. The Company may furnish such documents to the Agent in facsimile
form, provided that the originals shall have been furnished no later than
two Business Days before the proposed Payment Date.
SECTION 3.02. Making Payments. Subject to Section 3.01 the Banks
shall, on the Payment Date, advance the Discounted Amount of the relevant Bill
of Exchange to the Company by crediting the Discounted Amount to the Revenue
Account.
SECTION 3.03. Maximum Amount. (a) The aggregate amount of all
Outstanding Payments made hereunder shall at no time exceed the Total
Commitments.
(b) The aggregate amount of all Outstanding Payments hereunder shall
at no time exceed:
(i) in respect of Bills of Exchange accepted by KST, the
greater of US$37.5 million and 25% of the Total Commitments;
(ii) in respect of Bills of Exchange accepted by Preussag, the
greater of US$112.5 million and 75% of the Total Commitments; or
(iii) the Total Commitments.
and the Company shall not be entitled to make a Request for Payment
and the Banks shall have no obligation to make a Payment, that would result in
any of the above limits being exceeded.
SECTION 3.04. Notices Irrevocable. Each Request for Payment shall be
irrevocable and binding on the Company. The Company shall indemnify the Agent
and the Banks against any loss, cost or expense incurred by the Agent or the
Banks as a result of any failure to
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fulfill on or before the date specified in such Request for Payment the
applicable conditions referred to in Section 2.02 and Section 3.01(f),
including, without limitation, any loss (not including loss of anticipated
profits), cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by the Banks to fund the Payment to be made
by the Banks when such Payment, as a result of such failure, is not made on such
date.
SECTION 3.05. Termination or Reduction of the Commitments. The
Company may, upon at least five Business Days' notice to the Agent, terminate in
whole or reduce in part the unused portions of the Total Commitments provided,
however, that each partial reduction of the Facility shall be in a minimum
amount of $5,000,000 and an integral multiple thereof. Any such termination
shall be irrevocable and no such Commitment terminated or reduced may be
reinstated. Any such reduction in part of the Total Commitments shall reduce
each Bank's Commitment in the proportion borne by the amount of the reduction to
the Total Commitments immediately prior thereto.
SECTION 3.06. Banks' Obligations Several. The obligations of each
Bank hereunder are several and the failure by any Bank to perform its
obligations hereunder shall not affect the obligations of the Company towards
any other party hereto nor shall any other party be liable for the failure by
such Bank to perform its obligations hereunder. The failure of any Bank (the
"Failing Bank") to make its portion of a Payment available shall not relieve the
other Banks of the obligation to make their portion of the Payment. The
aggregate of the amounts due to each Bank at any time is a separate and
independent debt and each Bank shall have the right to protect and enforce its
rights hereunder and it shall not be necessary (except as otherwise provided
herein) for any other Bank or the Agent to be joined as an additional party to
any proceedings to this end.
SECTION 3.07. Each Bank's Participation. Each Bank will participate
through its Facility Office in each Payment made pursuant to this Agreement in
the proportion borne by its Commitment to the Total Commitments immediately
prior to the making of that Payment.
SECTION 3.08. Payment by Offtakers. Each Bill of Exchange shall
require that the Face Amount thereof be paid in full to the Agent Offshore
Account or such other .. account as may be designated by the Agent for such
purpose in accordance with the terms of the relevant Bill of Exchange on the
Maturity Date as specified therein. Such payment shall be for value in the
relevant currency without withholding, set-off or counterclaim.
ARTICLE IV
COMPUTATIONS AND PAYMENTS
SECTION 4.01. Computations. The computation by the Agent of any
Discounted Amount shall be on the basis of a year of 360 days, and the actual
number of days occurring in the relevant Discount Period. Each determination by
the Agent in the context of the calculation of a Discounted Amount (including
any Discount Rate) shall be conclusive and binding for all purposes, absent
manifest error.
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SECTION 4.02. Discount Period. The duration of each Discount Period
shall be as specified in the Request for Payment being either 30 days or 60 days
and equal to the period to maturity of the Bill of Exchange in consideration for
which the Payment is made, provided that no Discount Period shall end on a date
which falls after the Final Maturity Date. Where any Discount Period would
otherwise end on a day other than a Business Day, the Discount Period shall end
on the next preceding Business Day and the calculation of the Discounted Amount
shall be made accordingly.
SECTION 4.03. Payments to the Agent. On each date on which this
Agreement requires an amount to be paid by any of the Banks hereunder, such Bank
shall make the same available to the Agent by payment in US Dollars and in same
day funds (or in such other funds as may for the time being be customary in
London for the settlement in London of international banking transactions in US
Dollars) to the Agent Offshore Account (or such other account or bank as the
Agent may have specified for this purpose).
SECTION 4.04. Payments by the Agent. Save as otherwise provided
herein, each payment received by the Agent for the account of another person
pursuant to Section 4.03, or a Bill of Exchange or the Guarantee shall be made
available by the Agent to such other person (in the case of a Bank, for the
account of its Facility Office) for value the same day by transfer to such
account of such person with such bank in the principal financial centre of the
country of the currency of such payment as such person shall have previously
notified to the Agent.
SECTION 4.05. Notice to Banks. When the Agent receives a Request for
a Payment, it shall promptly (and in no event later than two Business Days prior
to the proposed Payment Date) notify each of the Banks of the amount of the
proposed Payment, the applicable Discount Rate, its participation in the Payment
and the proposed Payment Date. Each Bank shall, subject to the provisions of
this Agreement, make available to the Agent on the Payment Date its
participation in the Payment pursuant to the provisions of Section 4.03.
SECTION 4.06. Clawback. Where a sum is to be paid hereunder to the
Agent for account of another person, the Agent shall not be obliged to make the
same available to that other person or to enter into or perform any exchange
contract in connection therewith until it has been able to establish to its
satisfaction that it has actually received such sum, but if it does so and it
proves to be the case that it had not actually received such sum, then the
person to whom such sum or the proceeds of such exchange contract was so made
available shall on request refund the same to the Agent together with an amount
sufficient to indemnify the Agent against any cost or loss it may have suffered
or incurred by reason of its having paid out such sum or the proceeds of such
exchange contract prior to its having received such sum.
ARTICLE V
INDEMNITY
SECTION 5.01. Indemnity. (a) The Company agrees to indemnify and
hold harmless the Agent and each of the Banks and each of their respective
affiliates and officers, directors, employees, agents, advisors and other
representatives (each, an "Indemnified Party")
Page 13
from and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, fees and expenses of counsel) that may be
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of, or the preparation for a
defence of, any investigation, litigation or proceeding arising out of, related
to or in connection with any Transaction Document or the transactions
contemplated thereby, or any use made or proposed to be made with the proceeds
thereof, whether or not such investigation, litigation or proceeding is brought
by a Transaction Party, its shareholders or creditors or an Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated, except to the extent such claim, damage, loss, liability
or expense is found in a final, non-appealable-judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's negligence or
willful misconduct. The Company also agrees that no Indemnified Party shall have
any liability (whether direct or indirect, in contract or tort or otherwise) to
the Company or its Subsidiaries or Affiliates or to the Company or its
respective security holders or creditors arising out of, related to or in
connection with this Agreement or the transactions contemplated thereby, except
for direct, as opposed to consequential, damages determined in a final
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's negligence, willful misconduct or failure to
perform its obligations hereunder; and
(b) the Company agrees to indemnify and hold harmless the Agent and
each of the Banks from and against, and shall pay on demand, any and all losses,
liabilities, damages, costs, expenses and charges (including the fees and
disbursements of legal counsel to the Agent and each of the Banks) suffered or
incurred by the Agent and the Banks or any of them as a result of any failure of
any Transaction Document to be the legal, valid and binding obligation of the
parties thereto enforceable in accordance with its terms, or any failure by any
Transaction Party to perform its obligations in accordance with the terms of
each Transaction Document to which it is a party.
SECTION 5.02. Costs and Expenses. The Company agrees to pay on
demand (i) all costs and expenses of the Agent and the Banks in connection with
the preparation, execution, delivery, administration, modification and amendment
of the Transaction Documents including, without limitation, (A) all due
diligence, collateral review, syndication, transportation, computer,
duplication, appraisal, audit, insurance, consultant, search, filing and
recording fees and expenses and (B) the fees and expenses of counsel for the
Agent and the Banks with respect thereto, with respect to advising the Agent and
the Banks as to its rights and responsibilities, or the perfection, protection
or preservation of rights or interests, under the Transaction Documents, with
respect to negotiations with any Transaction Party or with other creditors of
any Transaction Party or any of its Subsidiaries arising out of any Event of
Default or any events or circumstances that may give rise to an Event of Default
and with respect to presenting claims in or otherwise participating in or
monitoring any bankruptcy, insolvency or other similar proceeding involving
creditors' rights generally and any proceeding ancillary thereto) and (ii) all
costs and expenses of the Agent and the Banks in connection with the enforcement
of the Transaction Documents, whether in any action, suit or litigation, any
bankruptcy, insolvency or other similar proceeding affecting creditors' rights
generally (including, without limitation, the reasonable fees and expenses of
counsel for the Agent and the Banks with respect thereto).
Page 14
SECTION 5.03. Banks' Liabilities for Costs. If the Company fails to
perform any of its obligations under this Article V, each Bank shall, in the
proportion borne by its Commitment to the aggregate of all Commitments indemnify
the Agent against any loss incurred by the Agent as a result of such failure and
the Company shall forthwith reimburse each Bank for any payment made by it
pursuant to this Section 5.03.
SECTION 5.04. Survival. Without prejudice to the survival of any
other agreement of any Transaction Party hereunder or under any other
Transaction Document, the agreements and obligations of the Company contained in
Article IX and this Article V shall survive the payment in full of all amounts
payable hereunder and under any of the other Transaction Documents.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
shall occur and be continuing:
(a) any Transaction Party shall fail to make any payment under any
Transaction Document, in each case when the same becomes due and payable;
or
(b) any representation or warranty made by any Transaction Party (or
any of its officers) under or in connection with any Transaction Document
shall prove to have been incorrect in any material respect when made or if
repeated at any time with reference to the facts and circumstances
subsisting at such time would not be accurate in all material respects; or
(c) any Transaction Party shall fail to perform any other term,
covenant or agreement contained in any Transaction Document on its part to
be performed or observed if such failure shall remain unremedied for 10
days after the date on which a responsible officer of the Company becomes
aware of such failure; or
(d) any indebtedness of any Transaction Party becomes due or capable
of being declared due before its stated maturity or is not paid on
maturity or on demand (if so payable), any guarantee or similar obligation
of any Transaction Party is not discharged at maturity or when called or
any Transaction Party goes into default under or commits a breach of any
instrument or agreement relating to any such indebtedness or guarantee in
the case of any Transaction Party other than the Company, in an amount in
excess of US$5,000,000 individually or in the aggregate; or
(e) any judgment or order for the payment of money in excess of
US$5,000,000 or its equivalent (to the extent not fully paid or
discharged) shall be rendered against any Transaction Party and either (i)
enforcement proceedings shall have been commenced by any creditor upon
such judgment or order or (ii) there shall be any period of 15 consecutive
days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; or
Page 15
(f) any non-monetary judgrqent or order shall be rendered against
any Transaction Party that could have a Material Adverse Effect, and there
shall be any period of 10 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(g) any provision of any Transaction Document shall for any reason
cease to be legal, valid and binding on or enforceable against any
Transaction Party being a party to it, or any such Transaction Party shall
so state in writing; or
(h) the Company ceases to carry on its business or disposes of all
or any substantial part of its business or assets or all or any
substantial part of its assets is condemned, attached, seized or
appropriated by any governmental authority or any action by any
governmental authority is instituted to dissolve the Company or suspend
its operations; or
(i) there shall occur any Material Adverse Change; or
(j) there shall occur a Change in Control; or
(k) there shall occur any Insolvency Event affecting any Transaction
Party; or
(l) any step is taken by any person with a view to the seizure,
compulsory acquisition, expropriation or nationalisation of all or a
material part of the assets of the Company or its share capital; or
(m) the Government of Thailand or any competent authority thereof
declares a moratorium on the payment of indebtedness by Thailand, any
government agency or authority thereof or any Thai entity, or any
moratorium occurs de facto, or Thailand ceases to be a member in good
standing of the International Monetary Fund under the Articles of
Agreement thereof, or the international monetary reserve of Thailand
becomes subject to any encumbrance not created by operation of law and the
effect of which materially impairs in any manner whatsoever, the ability
of any Transaction Party to perform any of its obligations under any of
the Transaction Documents,
Then at once, or at any time thereafter, while such event is
continuing and remains unremedied, the Agent may, and upon the request of
the Majority Banks shall, by notice to the Company:
(i) to the extent such event is attributable to the Company cancel
the Commitments; or
(ii) to the extent such event is attributable to an Offtaker
accepting a Bill of Exchange or the Guarantor guaranteeing payment of such
Bill of Exchange, decline to make the Payment relating to such Bill of
Exchange,
and take any other action as is provided for in the Transaction
Documents.
Page 16
SECTION 6.02. Notice. The Agent shall promptly thereafter notify the
Company of the conclusive determination of the Majority Banks that an Event of
Default has occurred which is attributable to an Offtaker or the Guarantor.
ARTICLE VII
SHARING
SECTION 7.01. Redistribution of Payments. If, at any time, the
proportion which any Bank (a "Recovering Bank") has received or recovered
(whether by payment, the exercise of a right of set-off or combination of
accounts or otherwise) in respect of its portion of any payment (a "relevant
payment") to be made under this Agreement [or any Bill of Exchange] by any
Transaction Party for account of such Recovering Bank and one or more other
Banks is greater (the portion of such receipt or recovery giving rise to such
excess proportion being herein called an "excess amount") than the proportion
thereof so received or recovered by the Bank or Banks so receiving or recovering
the smallest proportion thereof, then:
(a) such Recovering Bank shall inform the Agent of such receipt or
recovery and pay to the Agent an amount equal to such excess amount;
(b) [(in the case of a relevant payment made under this Agreement)]
there shall thereupon fall due from the relevant Transaction Party to such
Recovering Bank an amount equal to the amount paid out by such Recovering
Bank pursuant to paragraph (a) above, the amount so due being, for the
purposes hereof, treated as if it were an unpaid part of such Recovering
Bank's portion of such relevant payment; and
(c) the Agent shall treat the amount received by it from such
Recovering Bank pursuant to paragraph (a) above as if such amount had been
received by it from the relevant Transaction Party in respect of such
relevant payment and shall pay the same to the persons entitled thereto
(including such Recovering Bank) pro rata to their respective entitlements
thereto.
SECTION 7.02. Repayable Recoveries. If any sum (a "relevant sum")
received or recovered by a Recovering Bank in respect of any amount owing to it
by any Transaction Party becomes repayable and is repaid by such Recovering
Bank, then:
(a) each Bank which has received a share of such relevant sum by
reason of the implementation of Section 7.01 shall, upon request of the
Agent, pay to the Agent for account of such Recovering Bank an amount
equal to its share of such relevant sum; and
(b) there shall thereupon fall due from the relevant Transaction
Party to each such Bank an amount equal to the amount paid out by it
pursuant to paragraph (a) above, the amount so due being, for the purposes
hereof, treated as if it were the sum payable to such Bank against which
such Bank's share of such relevant sum was applied.
Page 17
ARTICLE VIII
FEES
SECTION 8.01. Fees. (a) Commitment Fee. The Company shall pay to the
Agent for the account of each Bank a commitment fee from the date hereof, in
each case until the Final Maturity Date, payable in arrear quarterly on March
31, June 30, September 30 and December 31, commencing March 31, 1998, and on the
Final Maturity Date, at the rate of 0.25% per annum on the average daily unused
portion of each Bank's Commitment.
(b) Arrangement, Facility, Agency and Other Fees. The Company shall
pay -to the Agent for its own account the arrangement, facility, agency fees and
other fees specified in the letter of even date herewith from the Agent to the
Company at the times, and in the amounts specified in such letter.
ARTICLE IX
INCREASED COSTS
SECTION 9.01. Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation after the date hereof or (ii) the compliance with any guideline or
request from any central bank or other governmental authority (whether or not
having the force of law) first imposed after the date hereof, there shall be any
increase in the cost to any Bank of agreeing to make or of making, funding or
maintaining Payments, then the Discount Rate shall be increased accordingly to
compensate such Bank for such increased cost.
(b) If any Bank determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) first imposed
after the date hereof affects or would affect the amount of capital required or
expected to be maintained by such Bank or any corporation controlling such Bank
and that the amount of such capital is increased by or based upon the existence
of such Bank's Commitments hereunder then, the Discount Rate shall be increased
accordingly to compensate such Bank for such increased cost.
(c) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation after the date hereof shall make it unlawful, or any central bank or
other governmental authority shall assert after the date hereof that it is
unlawful, for the Agent or any Bank to perform its. obligations hereunder, then,
on notice thereof and demand therefor by the Agent or any Bank to the Company
the obligation of the Agent or such Bank to make Payments shall be suspended
until the Agent or such Bank shall notify the Company that it has determined
that the circumstances causing such suspension no longer exist.
SECTION 9.02. Taxes. (a) Any and all payments by the Company
hereunder shall be made free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto
Page 18
("Taxes"). If the Company shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder (i) the sum payable shall be increased
as may be necessary so that after making all required deductions the Agent
and/or each of the Banks receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Company shall make such
deductions and (iii) the Company shall pay the full amount deducted to the
relevant tax authority or other governmental authority in accordance with
applicable law.
(b) In addition, the Company shall pay any present or future stamp,
documentary, excise, property, VAT, goods and service tax or similar taxes,
charges or levies - that arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to this
Agreement (hereinafter referred to as "Other Taxes").
(c) The Company shall indemnify the Agent and each of the Banks for
the full amount of Taxes and Other Taxes paid by the Agent and/or the Banks and
any liability (including penalties, additions to tax, interest and expenses)
arising therefrom or with respect thereto. This indemnification shall be made
within 14 days from the date of written demand therefor made by the Agent or any
Bank or such shorter period as may be required by applicable law .
(d) Within 14 days after the date of any payment of Taxes or Other
Taxes, the Company shall furnish to the Agent the original receipt of payment
thereof or a certified copy of such receipt.
SECTION 9.03. Certificates. A certificate of the Agent or the
relevant Bank as to (a) the amount by which a the Discount Rate is to be
increased under Section 9.01 or (b) the amount for the time being required to be
paid by the Company under Section 9.02 shall, in the absence of manifest error,
be conclusive evidence of the existence and amounts of the specified obligations
of the Company.
ARTICLE X
AGENCY PROVISIONS
SECTION 10.01. Appointment of the Agent. Each Bank hereby appoints
the Agent to act as its agent in connection herewith and authorises the Agent to
execute and deliver any and all certificates and other documents contemplated by
any of the Transaction Documents and to exercise such rights, powers,
authorities and discretions as are specifically delegated to the Agent by the
terms hereof together with all such rights, powers, authorities and discretions
as are reasonably incidental thereto.
SECTION 10.02. Agent's Discretions. The Agent may:
(a) assume, unless it has, in its capacity as agent for the Banks,
received notice to the contrary from any other party hereto, that (i) any
representation made by any Transaction Party in connection herewith is
true, (ii) no Event of Default or Potential Event of Default has occurred,
(iii) no Transaction Party is in breach of or default under its
obligations under the Transaction Documents and (iv) any right, power,
authority or
discretion vested herein upon the Majority Banks, the Banks or any other
person or group of persons has not been exercised;
(b) assume that the Facility Office of each Bank is that identified
with its signature below (or, in the case of a Transferee, at the end of
the Transfer Certificate to which it is a party as Transferee) until it
has received from such Bank a notice designating some other office of such
Bank to replace its Facility Office and act upon any such notice until the
same is superseded by a further such notice;
(c) engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or services may to it
seem necessary, expedient or desirable and rely upon any advice so
obtained;
(d) rely as to any matters of fact which might reasonably be
expected to be within the knowledge of any Transaction Party upon a
certificate signed by or on behalf of any Transaction Party;
(e) rely upon any communication or document believed by it to be
genuine;
(f) refrain from exercising any right, power or discretion vested in
it as agent hereunder unless and until instructed by the Majority Banks as
to whether or not such right, power or discretion is to be exercised and,
if it is to be exercised, as to the manner in which it should be
exercised; and
(g) refrain from acting in accordance with any instructions of the
Majority Banks to begin any legal action or proceeding arising out of or
in connection with this Agreement or any other Transaction Party until it
shall have received such security as it may require (whether by way of
payment in advance or otherwise) for all costs, claims, losses, expenses
(including legal fees) and liabilities together with any VAT thereon which
it will or may expend or incur in complying with such instructions.
SECTION 10.03. Agent's Obligations. The Agent shall:
(a) promptly inform each Bank of the contents of any notice or
document received by it in its capacity as Agent from any Transaction
Party hereunder;
(b) promptly notify each Bank of the occurrence of any Event of
Default or any default by any Transaction Party in the due performance of
or compliance with its obligations under this Agreement of which the Agent
has notice from any other party hereto;
(c) save as otherwise provided herein, act as agent hereunder in
accordance with any instructions given to it by the Majority Banks, which
instructions shall be binding on all of the Banks; and
(d) if so instructed by the MajoritY Banks, refrain from exercising
any right, power or discretion vested in it as Agent hereunder.
Page 20
SECTION 10.04. Excluded Obligations. Notwithstanding anything to the
contrary expressed or implied herein, the Agent shall not:
(a) be bound to enquire as to (i) whether or not any representation
made by any Transaction Party in connection herewith is true, (ii) the
occurrence or otherwise of any Event of Default or Potential Event of
Default, (iii) the performance by any Transaction Party of its obligations
under any Transaction Document or (iv) any breach of or default by any
Transaction Party of its obligations under any Transaction Document;
(b) be bound to account to any Bank for any sum or the profit
element of any sum received by it for its own account;
(c) be bound to disclose to any other person any information
relating to any Transaction Party or any of its agencies if such
disclosure would or might in its opinion constitute a breach of any law or
regulation or be otherwise actionable at the suit of any person; or
(d) be under any obligations Other than those for which express
provision is made herein.
SECTION 10.05. Indemnification. Each Bank shall, from time to time
on demand by the Agent or the Arranger, indemnify the Agent and the Arranger, in
the proportion its Commitment bears to the Total Commitments at the time of such
demand against any and all costs, claims, losses, expenses (including legal
fees) and liabilities together with any VAT thereon which the Agent or the
Arranger may incur, otherwise than by reason of its own gross negligence or
wilful misconduct, in acting in its capacity as Agent or Arranger hereunder.
SECTION 10.06. Exclusion of Liabilities. Neither the Agent nor the
Arranger accepts any responsibility for the accuracy and/or completeness of
information supplied by any Transaction Party in connection herewith or for the
legality, validity, effectiveness, adequacy or enforceability of this Agreement
and save in the case of its gross negligence or wilful misconduct, neither the
Agent nor the Arranger shall be under any liability as a result of taking or
omitting to take any action in relation to this Agreement.
SECTION 10.07. No Actions. Each of the Banks agrees that it will not
assert or seek to assert against any director, officer or employee of the Agent
or the Arranger any claim it might have against any of them in respect of the
matters referred to in Section 10.06.
SECTION 10.08. Business with any Transaction Party. The Agent may
accept deposits from, lend money to and generally engage in any kind of banking
or other business with any Transaction Party.
SECTION 10.09. Resignation. The Agent may resign its appointment
hereunder at any time without assigning any reason therefor by giving not less
than thirty days' prior written notice to that effect to each of the other
parties hereto, provided that no such resignation shall be effective until a
successor for the Agent is appointed in accordance with the succeeding
provisions of this Article X.
Page 21
SECTION 10.10. Successor Agent. If the Agent gives notice of its
resignation pursuant to Clause 10.09, then any reputable and experienced bank or
other financial institution may be appointed as a successor to the Agent by the
Majority Banks during the period of such notice but, if no such successor is so
appointed, the Agent may appoint such a successor itself, provided that at all
times the Agent under this Facility Agreement shall also be the Agent under the
Onshore Facility Agreement.
SECTION 10.11. Rights and Obligations. If a successor to the Agent
is appointed under the provisions of Section 10.10, then (a) the retiring Agent
shall be discharged from any further obligation hereunder but shall remain
entitled to the benefit of the provisions of this Article X and (b) its
successor and each of the other parties hereto shall have the same rights and
obligations amongst themselves as they would have had if such successor had been
a party hereto.
SECTION 10.12. Own Responsibility. It is understood and agreed by
each Bank that it has itself been, and will continue to be, solely responsible
for making its own independent appraisal of and investigations into the
financial condition, creditworthiness, condition, affairs, status and nature of
any Transaction Party and, accordingly, each Bank warrants to the Agent and the
Arranger that it has not relied on and will not hereafter rely on the Agent or
the Arranger:
(a) to check or enquire on its behalf into the adequacy, accuracy or
completeness of any information provided by any Transaction Party in
connection with this Agreement or the transactions herein contemplated
(whether or not such information has been or is hereafter circulated to
such Bank by the Agent or the Arranger); or
(b) to check or enquire on its behalf into the adequacy, accuracy or
completeness of any communication delivered to it under any of the
Transaction Documents, any legal or other opinions, reports, valuations,
certificates, appraisals or other documents delivered or made or required
to be delivered or made at any time in connection with any of the
Transaction Documents, any security to be constituted thereby or any other
report or other document, statements or information circulated, delivered
or made, whether orally or otherwise and whether before, on or after the
date of this Agreement; or
(c) to check or enquire on its behalf into the due execution,
delivery, validity, legality, adequacy, suitability, performance,
enforceability or admissibility in evidence of any of the Transaction
Documents or any other document referred to in paragraph (b) above or any
guarantee, indemnity or security given or created thereby or any
obligations imposed thereby or assumed thereunder; or
(d) to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature of any
Transaction Party.
SECTION 10.13. Agency Division Separate. In acting as Agent
hereunder for the Banks, the Agent shall be regarded as acting through its
agency division which shall be treated as a separate entity from any other of
its divisions or departments and, notwithstanding the foregoing
Page 22
provisions of this Article X, any information received by some other division or
department of the Agent may be treated as confidential and shall not be regarded
as having been given to the Agent's agency division.
SECTION 10.14. Confidential Information. Notwithstanding anything to
the contrary expressed or implied herein and without prejudice to the provisions
of Section 10.13, the Agent shall not as between itself and the Banks be bound
to disclose to any Bank or other person any information which is supplied by any
Transaction Party to the Agent in its capacity as agent hereunder for the Banks
and which is identified by any Transaction Party at the time it is so supplied
as being confidential information, provided that the consent of the Company to
such disclosure is hereby expressly given in relation to any information which
in the opinion of the Agent relates to an Event of Default or Potential Event of
Default or in respect of which the Banks have given a confidentiality
undertaking in a form satisfactory to the Agent and the Company.
SECTION 10.15. Safe Custody. The Agent shall be at liberty to place
any of the Transaction Documents and any other instruments, documents or deeds
delivered to it pursuant to or in connection with any of the Transaction
Documents for the time being in its possession in any safe deposit, safe or
receptacle selected by it or with any bank, any company whose business includes
undertaking the safe custody of documents or any firm of lawyers of good repute
and shall not be responsible for any loss thereby incurred.
SECTION 10.16. Delegation. The Agent may, whenever it thinks fit,
delegate by power of attorney or otherwise to any person or persons, or
fluctuating body of persons, all or any of the rights, powers, authorities and
discretions vested in it by any of the Transaction Documents and such delegation
may be made upon such terms (including the power to sub-delegate) and subject to
such conditions and to such regulations as the Agent may think fit and it shall
not be bound to supervise, or be in any way responsible for any loss incurred by
reason of any misconduct or default on the part of, any such delegate or
sub-delegate.
ARTICLE XI
ASSIGNMENTS AND TRANSFERS
SECTION 11.01. Binding Agreement. This Agreement shall be binding
upon and enure to the benefit of each party hereto and its or any subsequent
successors, Transferees and assigns.
SECTION 11.02. No Assignments and Transfers by the Company. The
Company shall not be entitled to assign or transfer all or any of its rights,
benefits and obligations hereunder.
SECTION 11.03. Assignments and Transfers by Banks. Any Bank may, at
any time, assign all or any of its rights and benefits hereunder or transfer in
accordance with Section 11.05 all or any of its rights, benefits and obligations
hereunder subject in either case to the consent of the Company such consent not
to be unreasonably withheld which consent shall be
Page 23
deemed to have been given if no objection is made by the Company to any proposed
assignment or transfer within 10 Business Days of the Company having notice
thereof.
SECTION 11.04. Assignments by Banks. If any Bank assigns all or any
of its rights and benefits hereunder in accordance with Section 11.05, then,
unless and until the assignee has agreed with the Agent and the other Banks that
it shall be under the same obligations towards each of them as it would have
been under if it had been an original party hereto as a Bank (whereupon such
assignee shall become a party hereto as a "Bank"), the Agent and the other Banks
shall not be obliged to recognise such assignee as having the rights against
each of them which it would have had if it had been such a party hereto.
SECTION 11.05. Transfers by Banks. If any Bank wishes to transfer
all or any of its rights, benefits and/or obligations hereunder as contemplated
in Section 11.03, then such transfer may be effected by the delivery to the
Agent of a duly completed and duly executed Transfer Certificate in which event,
on the later of the Transfer Date specified in such Transfer Certificate and the
fifth Business Day after (or such earlier business day endorsed by the Agent on
such Transfer Certificate falling on or after) the date of delivery of such
Transfer Certificate to the Agent:
(a) to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer its rights, benefits and obligations hereunder,
the Company and such Bank shall be released from further obligations
towards one another hereunder and their respective rights against one
another shall be cancelled (such rights and obligations being referred to
in this Section 11.05 as "discharged rights and obligations");
(b) the Company and the Transferee party thereto shall assume
obligations towards one another and/or acquire rights against one another
which differ from such discharged rights and obligations only insofar as
the Company and such Transferee have assumed and/or acquired the same in
place of the Company and such Bank;
(c) the Agent, such Transferee and the other Banks shall acquire the
same rights and benefits and assume the same obligations between
themselves as they would have acquired and assumed had such Transferee
been an original party hereto as a Bank with the rights, benefits and/or
obligations acquired or assumed by it as a result of such transfer; and
(d) such Transferee shall become a party hereto as a "Bank".
SECTION 11.06. Transfer Fees. On the date upon which a transfer
takes effect pursuant to Section 11.05 the Transferee in respect of such
transfer shall pay to the Agent for its own account a transfer fee of US$3,000.
SECTION 11.07 Disclosure of Information. Any Bank may disclose to
any actual or potential assignee or Transferee or to any person who may
otherwise enter into contractual relations with such Bank in relation to this
Agreement or to its head office, other branches, regional offices and affiliated
companies such information about the Company and any of its
Page 24
agencies as such Bank shall consider appropriate and the Company expressly
consents to such disclosure.
ARTICLE XII
AMENDMENTS
SECTION 12.01. Amendment Procedures. The Agent, if it has the prior
written consent of the Majority Banks, and the Company may from time to time
agree in writing to amend this Agreement or to waive, prospectively or
retrospectively, any of the requirements of this Agreement and any amendments or
waivers so agreed shall be binding on all the Banks and the Company. Provided
that:
(a) no such waiver or amendment shall subject any party hereto to
any new or additional obligations without the consent of such party;
(b) without the prior written consent of all the Banks, no such
amendment or waiver shall:
(i) amend or waive any provision of Article VII or this
Article XII;
(ii) reduce the proportion of any amount received or recovered
(whether by way of set-off, combination of accounts or otherwise) in
respect of any amount due from any Transaction Party hereunder to
which any Bank is entitled;
(iii) change the principal amount of or currency of any
Payment, or defer the Maturity Date of any Bill of Exchange;
(iv) change the Applicable Margin, change the Discount Rate,
commitment fees or any other amount payable hereunder to all or any
of the Agent and the Banks;
(v) defer the Final Maturity Date;
(vi) amend the definition of Majority Banks; or
(vii) amend any provision which contemplates the need for the
consent or approval of all the Banks; and
(c) notwithstanding any other provisions hereof, the Agent shall not
be obliged to agree to any such amendment or waiver if the same would:
(i) amend or waive any provision of this Article XII, Article
V or Article X; or
(ii) otherwise amend or waive any of the Agent's rights
hereunder or subject the Agent to any additional obligations
hereunder.
Page 25
SECTION 12.02. Amendment Costs. If the Company requests any
amendment or waiver in accordance with Section 12.01 then the Company shall, on
demand of the Agent, reimburse the Agent and the Banks for all costs and
expenses (including legal fees) together with any VAT thereon incurred by the
Agent and the Banks in responding to or complying with such request.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or any other Transaction Document, nor consent to
any departure by the Company therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Agent, and such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
SECTION 13.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including facsimile or telex
communication) in the English language and mailed, faxed, telexed or delivered
by an overnight courier of nationally recognised standing, if to the Company at
the address of the Company at Chonburi Industrial Estate (Bowin) 358 Moo 6,
Highway 331, Bowin, Sriracha, Chonburi 20230, Thailand, Attention: Chief
Financial Officer, facsimile number (6638) 345375; if to the Agent at its
address or at such other address as shall be designated by the Agent in a
written notice to the other party. All such notices and communications shall,
when mailed, faxed, telexed or sent by courier, be effective when deposited in
the mails, transmitted by facsimile, confirmed by telex answer back or delivered
to the overnight courier, respectively, except that notices and communications
to the Agent pursuant to Article 11 or III shall not be effective until received
by the Agent. Delivery by facsimile of an executed counterpart of any amendment
or waiver of any provision of this Agreement to be executed and delivered
hereunder shall be effective as delivery of a manually executed counterpart
thereof.
SECTION 13.03. No Waiver-, Remedies. No failure on the part of the
Agent or the Banks to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and not exclusive
of any remedies provided by law.
SECTION 13.04. Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default the Agent and each Bank is hereby authorised
at any time and from time to time, to the fullest extent permitted by law, to
set off and otherwise apply any and all deposits (general or special, time or
demand, provisional or final) at any time held or at any branch and other
indebtedness at any time owing by the Agent, such Bank to or for the credit or
the account of the any Transaction Party against any and all of the obligations
of the that Transaction Party now or hereafter existing under this Agreement
held by the Agent or such Bank irrespective of whether the Agent or such Bank
shall have made any demand under this Agreement. The Agent and the Banks agree
promptly to notify the Company after any such set-off and application; provided,
however, that the failure to give such notice shall not affect the
Page 26
validity of such set-off and application. The rights of the Agent and the Banks
under this Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) that the Agent and the Banks may
have.
SECTION 13.05. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 13.06. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of the English courts. Each of the parties hereby
consents generally in respect of any proceeding to the giving of relief in
connection with such proceeding including the making, enforcement or execution
of any order or judgement which may be made or given in such proceeding. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and, subject to applicable laws, may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Agent or any of the
Banks may otherwise have to bring any action or proceeding relating to this
Agreement or any of the other Transaction Documents in the courts of any other
jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have on the ground of venue or forum non
coveniens or any similar grounds.
SECTION 13.07. Governing Law. This Agreement is governed by, and
shall be construed in accordance with, the laws of England.
SECTION 13.08. Service of Process. The Company shall at all times
maintain an agent for service of process in England. Such agent shall be Law
Debenture Trust Corporation p.l.c, 95 Gresham Street, London EC2V 7CY and any
writ, judgement or other notice of legal process shall be sufficiently served on
the Company if delivered to such agent at its address for the time being. The
Company undertakes not to revoke the authority of the above agent and if, for
any reason, such agent no longer serves as agent for the Company to receive
service of process, the Company shall promptly appoint another such agent and
advise the Agent thereof and, failing such appointment within 15 days, the Agent
shall be entitled to appoint such a person by notice to the Company. Nothing
contained herein shall affect the right to serve process in any other manner
permitted by law.
Page 27
CONDITIONS PRECEDENT
Part 1. Conditions Precedent to Initial Payment
(a) The Related Documents shall be in full force and effect;
(b) the amount of committed equity and debt financing shall be sufficient to
meet the financing requirements of the Project and the other transactions
contemplated by the Related Documents;
(c) the Agent is satisfied with the terms and conditions of the Related
Documents;
(d) the Agent is satisfied with the corporate and legal structure and
capitalisation of the Company including the terms and conditions of the
memorandum and articles of association and each class of share capital of the
Company and of each agreement or instrument relating 'to such structure or
capitalisation;
(e) the Agent is satisfied with the management of the Company;
(f) the Company shall have received at least US$440,000,000 in gross cash
proceeds from the sale of the Senior Notes, the Senior Subordinated Notes and
the Private Placement;
(g) the Equity Investors shall own not less than 24.8 % of the issued and
outstanding share capital of the Company;
(h) the Company and its existing lenders shall have executed an amendment, on
terms acceptable to the Agent, to The Agreement of Financial Supporting dated
September 27, 1996, between the Company and the ten lenders identified therein,
waiving all defaults or Events of Default (as therein defined) which may have
occurred or be continuing under such agreement or any defaults which may occur
as a result of the transactions contemplated herein;
(i) the Company, the Agent and the Banks shall have received the approval of all
local and national regulatory authorities which have jurisdiction as regards the
ability of the Company, the Agent and the Banks to enter into this Agreement;
0) there shall exist no action, suit, investigation, litigation or proceeding
affecting the Company pending or threatened before any court, governmental
agency or arbitrator that (i) could have a Material Adverse Effect or (ii)
purports to affect the legality, validity or enforceability of this Agreement,
any other Transaction Document, or the consummation of the transactions
contemplated hereby and thereby;
(k) all accrued fees and expenses of the Agent (including the accrued fees and
expenses of counsel to the Agent and of local counsel to Agent and those
contemplated by the letters dated 21 December 1997 and 26 February, 1998 between
the Company and the Agent) shall have been paid;
Page 28
(1) the Agent shall have received at least four Business Days before the day of
the Initial Payment the following, each dated such day (unless otherwise
specified) and in form and substance satisfactory to the Agent (unless otherwise
specified):
(i) certified copies of the resolutions of the Board of Directors of the
Company, approving the execution, delivery and performance of this
Agreement and each other Transaction Document which it is or is to be a
party, and of all documents evidencing other necessary corporate action
and governmental approvals, if any, with respect to this Agreement and
each other Transaction Document;
(ii) a power of attorney duly executed by the Authorised Directors on
behalf of the Company appointing SDI Management Co. the duly authorised
attorney of the Company for the purposes of this Agreement;
(iii) a certificate of the Company, signed on behalf of the Company by two
Authorised Directors, dated the date of the Initial Payment (the
statements made in which certificate shall be true on and as of the date
of the Initial Payment), certifying:
(A) a true and correct copy of the memorandum and articles of
association of the Company as in effect on the date of the Initial
Payment;
(B) that the Company is duly established and validly existing under
the laws of Thailand and there is no outstanding proceeding for the
dissolution or liquidation of the Company;
(C) the completeness and accuracy of the representations and
warranties contained in this Agreement as though made on and as of the
date of the Initial Payment; and
(D) the absence of any event occurring and continuing, or resulting
from the Initial Payment, that constitutes an Event of Default or
Potential Event of Default.
(iv) an affidavit ("Nangsu Raprong") issued by the Partnerships and
Companies Registration Office in Bangkok, Commercial Registration
Department, ministry of Commerce in Bangkok in respect of the Company
certifying the Authorised Directors empowered to bind the Company;
(v) a certificate of the Secretary of the Company and each other
Transaction Party certifying the names and true signatures of the officers
of such persons authorised to sign this Agreement and each other
Transaction Document to which they are or are to be parties and the other
documents to be delivered hereunder and thereunder;
(vi) such financial, business and other information regarding the Company
and each Transaction Party as the Agent shall have requested, including,
without limitation, information as to possible contingent liabilities, tax
matters, environmental matters, audited annual financial statements,
interim financial statements, the pro forma balance sheet as to the
Company and forecasts prepared by management, in form and substance
Page 29
satisfactory to the Agent, of balance sheets, income statements and cash
flow statements on a monthly basis for the first year following the day of
the Initial Payment and on an annual basis for each year thereafter until
the Final Maturity Date;
(vii) a letter, in form and substance satisfactory to the Agent, from the
Company to its independent certified public accountants, advising such
accountants that the Agent has been authorised to exercise all rights of
the Company to require such accountants to disclose any and all financial
statements and any other information of any kind that they may have with
respect to the Company and directing such accountants to comply with any
reasonable request of the agent for such information;
(viii) a certified copy of the acceptance by an agent in England of its
appointment as agent of the Company for the purpose of accepting service
of process;
(ix) the legal opinion of Chandler & Thong-Ek, Thai counsel to the Agent;
(x) the legal opinion of Shearman & Sterling, counsel to the Agent;
(xi) the legal opinion of White & Case, counsel to the Company;
(xii) the legal opinion of White & Case, Thai counsel to the Company;
(xiii) the legal opinions of German counsel to KST and to Preussag;
(xiv) the written approval of the Bank of Thailand of the Transaction
Documents and the transactions contemplated thereby; and
(xv) evidence that the Company shall have appointed an agent for service
of process in accordance with Section 13.08.
Part 2. Conditions Precedent to All Payments
(a) The following statements shall be true (and each of the giving of the
applicable Request for Payment and the acceptance by the Company of the proceeds
of such Payment shall constitute a representation and warranty by the Company
that both on the date of such notice and on the Payment Date or issuance such
statements are true):
(i) no event has occurred and is continuing, or would result from such
Payment, that constitutes (a) an Event of Default under Section 6.01(a); or (b)
any other Event of Default or Potential Event of Default and is attributable to
the Offtaker accepting the Bill of Exchange to which the proposed Payment
relates or the Guarantor guaranteeing payment of such Bill of Exchange; and
(ii) there has been no Material Adverse Change affecting the Company on a
consolidated basis since September 30, 1997.
(b) the Agent shall have received the following documents:
Page 30
(i) a certificate of the Secretary/Authorised Director of the Company,
attesting to the fact that the Company is Solvent, in the form of Exhibit 6;
(ii) a certificate of the Chief Financial Officer of the relevant Offtaker
(and, in the case of KST, the Guarantor) accepting the Bill of Exchange in
respect of which the Payment is -being made, in the form of Exhibit 7.
(iii) a certificate of the relevant Offtaker in the form of Exhibit 5
accepted and agreed to by the Agent;
(iv) an accepted Bill of Exchange from the relevant Offtaker or Offtakers
(which Offtaker or Offtakers shall each at that time be a Transaction
Party and shall not have been removed by the Company in accordance
herewith) together with the documents referred to in paragraph (1) of Part
1 above with each reference to the Company being construed as a reference
to the relevant Offtaker or Offtakers; and
(v) in respect of a Bill of Exchange drawn upon KST, a Guarantee together
with the documents referred to in paragraph (1) of Part 1 above with each
reference to the Company being construed as a reference to the Guarantor;
(c) that the Management Agreement is in full force and effect on substantially
the same terms and conditions as at the date hereof; and
(d) such other approvals, opinions or documents as the Agent may reasonably
request.
Page 31
Appendix 2
COMMITMENTS
Bank Commitment
---- ----------
Banque Nationale de Paris US$150,000,000
--------------------------------------------------
Page 32
Exhibit 1
FORM OF REQUEST FOR PAYMENT
From: Nakornthai Strip Mill
Public Company Limited
To: [The Agent]
Dated:
Dear Sirs
1. We refer to the agreement (as from time to time amended, varied, novated or
supplemented, the "Offshore Bill Discount Facility Agreement") dated March
12,1998 and .made between the Company, the Agent and the Banks. Terms defined in
the Offshore Bill Discount Facility Agreement shall have the same meaning in
this notice.
2. We hereby give you notice that, pursuant to the Offshore Bill Discount
Facility Agreement and on [date of proposed Payment], we wish to obtain a
Payment upon the terms and subject to the conditions contained therein
representing the Discounted Amount of a Bill of Exchange bearing identification
no. [ ] with a Face Amount of [ ] drawn upon and accepted by [ I and payable
[30/60 days] after drawing.
3. We confirm that, at the date hereof; (i) no Event of Default under Section
6.01(a) has occurred; and (ii) no other Event of Default or Potential Event of
Default has occurred and is attributable to the Offtaker accepting the Bill of
Exchange to which such Payment relates or the Guarantor guaranteeing payment of
such Bill of Exchange.
4. The proceeds of this Payment should be credited to the Revenue Account.
Yours faithfully
............................
for and on behalf of
Nakornthai Strip Mill Public
Company Limited
Page 33
Exhibit 2
FORM OF BILL OF EXCHANGE
NSM ("Drawer")
Bangkok
Date: [
To: [Klockner/Preussag] ("Acceptor")
You are directed to pay to the Agent (on behalf of and for the account of the
Banks) ("Payee") or its order on the date ("Maturity Date") which is [30/60]
[adjust for non-Business Days] days after the above date the sum of [ 1, value
received.
Such amount shall be paid to the account of the Agent maintained at [London] in
same day funds on the Maturity Date.
Any and all payments by the Acceptor hereunder shall be made free and clear of
and without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto
("Taxes"). If the Acceptor shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder to the Payee (i) the sum payable shall
be increased as may be necessary so that after making all required deductions
the Payee receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Acceptor shall make such deductions and (iii) the
Acceptor shall pay the full amount deducted to the relevant taxation authority
or other governmental authority in accordance with applicable law.
This Bill of Exchange is governed by and shall be construed in accordance with
the laws of England.
Signed (Drawer)
- ------
Accepted payable (Acceptor)
- ----------------
Page 34
Exhibit 3
FORM OF GUARANTEE AND INDEMNITY
THIS DEED OF GUARANTEE is made the [ ] day of [ ], 199[ 1
BETWEEN:
(1) [Klockner & Co] (the "Guarantor"); and
(2) [ - ] (the "Agent" for and on behalf of itself and the Banks (as
defined in the Agreement).
WHEREAS:
(A) Nakornthai Strip Mill Public Company Limited (the "Company") has
entered into a syndicated offshore bill discount facility agreement
(the "Agreement") with Banque Nationale de Paris as agent and
arranger and the banks identified therein (the "Banks");
(B) On the terms and subject to the conditions of the Agreement the
Banks have agreed to make payments to the Company upon receipt of
Bills of Exchange accepted by, inter alia, KST (the "Principal");
and
(C) It is a condition precedent to the obligation of the Banks to make
such payments that the Guarantor shall have executed this Guarantee.
1. Interpretation
Terms defined (or used) in the Agreement shall have the same meaning where used
herein. The rules of construction contained in Section 1.02 of the Agreement
shall apply hereto.
2. Guarantee
The Guarantor:
(i) guarantees to the Agent and the Banks as a primary obligation the
due and punctual observance and performance by the Principal of its
obligations under each Bill of Exchange accepted by it (an "Accepted
Bill of Exchange") and promises to pay to the Agent from time to
time on demand all sums from time to time due and payable (but
unpaid) by the Principal to the Agent and the Banks or any of them
under or pursuant to any such Bill of Exchange or on
(ii) agrees as a primary obligation to indemnify the Agent and the Banks
from time to time on demand from and against any loss incurred by
the Agent and the Banks or any of them as a result of any of the
obligations of the Principal under an Accepted Bill of Exchange
being or becoming void, voidable, unenforceable or ineffective
Page 35
for any reason whatsoever, whether or not known to the Agent and the
Banks or any of them, the amount of such loss being the amount which
the Agent and the Banks would otherwise have been entitled to
recover from the Principal.
3. Preservation of Rights
3.1 The obligations of the Guarantor herein contained shall be in addition to
and independent of every other security which the Agent and the Banks or any of
them may at any time hold in respect of any of the Principal's obligations under
an Accepted Bill of Exchange.
3.2 Neither the obligations of the Guarantor herein contained nor the rights,
powers and remedies conferred in respect of the Guarantor upon the Agent and the
Banks or any of them by an Accepted Bill of Exchange or by law shall be
discharged, impaired or otherwise affected by:
(i) the winding-up, dissolution, administration or reorganisation of the
Principal or any change in its status, function, control or
ownership;
(ii) any of the obligations of the Principal under an Accepted Bill of
Exchange or under any other security relating to an Accepted Bill of
Exchange being or becoming illegal, invalid, unenforceable or
ineffective in any respect;
(iii) time or other indulgence being granted or agreed to be granted to
the Principal in respect of its obligations under an Accepted Bill
of Exchange the Agreement or under any other document;
(iv) any amendment to, or any variation, waiver or release of any
obligation of the Principal under an Accepted Bill of Exchange, the
Agreement or under any other document;
(v) any failure to take, or fully to take, any security contemplated by
an Accepted Bill of Exchange or otherwise agreed to be taken in
respect of the Principal's obligations under an Accepted Bill of
Exchange;
(vi) any failure to realise or fully to realise the value of, or any
release, discharge, exchange or substitution of, any such security
or taken in respect of the Principal's obligations under an Accepted
Bill of Exchange; or
(vii) any other act, event or omission which, but for this Clause 3.2,
might operate to discharge, impair or otherwise affect any of the
obligations of the Guarantor herein contained or any of the rights,
powers or remedies conferred upon the Agents and the Banks or any of
them by an Accepted Bill of Exchange or by law.
3.3 Any settlement or discharge given by the Agent and the Banks or any of them
to the Guarantor in respect of the Guarantor's obligations hereunder or any
other agreement reached between the Agent and the Banks or any of them and the
Guarantor in relation thereto shall be, and be deemed always to have been, void
if any act on the faith of which the Agent or the Banks
Page 36
or any of them gave the Guarantor that settlement or discharge or entered into
that Agreement is subsequently avoided by or in pursuance of any provision of
law.
3.4 Neither the Agent nor the Banks nor any of them shall not be obliged before
exercising - any of the rights, powers or remedies conferred upon it in respect
of the Guarantor hereby or by law:
(i) to make any demand of the Principal;
(ii) to take any action or obtain judgment in any court against the
Principal;
(iii) to make or file any claim or proof in a winding-up or dissolution of
the Principal; or
(iv) to enforce or seek to enforce any security taken in respect of any
of the obligations of the Principal under an Accepted Bill of
Exchange.
3.5 The Guarantor agrees that, so long as any amounts are or may be owed by the
Principal under any Accepted Bill of Exchange or the Principal is under any
actual or contingent obligations under the Bill of Exchange, the Guarantor shall
not exercise any rights which the Guarantor may at any time have by reason of
performance by it of its obligations hereunder:
(i) to be indemnified by the Principal;
(ii) to claim any contribution from any other guarantor of the
Principal's obligations under an Accepted Bill of Exchange; and/or
(iii) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Agent or the Banks or
any of them under any Accepted Bill of Exchange or of any other
security taken pursuant to, or in connection with, any Accepted Bill
of Exchange by the Agent and the Banks or any of them.
4. Representations and Warranties
The Guarantor represents that:
(i) it is duly incorporated in Federal Republic of Germany and has power
to enter into and perform this Guarantee and has taken all necessary
corporate action to authorise the execution, delivery and
performance of this Guarantee;
(ii) the execution, delivery and performance of this Guarantee will not
contravene any law or regulation to which this Guarantor is subject
or any provision of the Guarantor's memorandum and articles of
association and all goverranental or other consents requisite for
such execution, delivery and performance are in full force and
effect;
Page 37
(iii) no obligation of the Guarantor is secured by, and the execution,
delivery and performance of this Guarantee will not result in the
existence of or oblige the Guarantor to create, any mortgage,
charge, pledge, encumbrance or other encumbrance over any present or
future revenues or assets of the Guarantor;
(iv) the execution, delivery and performance of this Guarantee will not
cause the Guarantor to be in breach of or default under any
agreement binding on it or any of its assets and no material
litigation or administrative proceeding before, by or of any court
or governmental authority is pending or (so far as the Guarantor
knows) threatened against it or any of its assets;
(v) no Event of Default or Potential Event of Default has occurred and
is continuing; and
(vi) in any proceedings taken in relation to this Guarantee, it will not
be entitled to claim for itself or any of its assets immunity from
suit, execution, attachment or other legal process.
5. Payments
5.1 (a) Any and all payments by the Guarantor hereunder shall be made free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto ("Taxes"). If the Guarantor shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder (i) the sum payable shall be
increased as may be necessary so that after making all required deductions the
Agent and/or each of the Banks receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Guarantor shall make such
deductions and (iii) the Guarantor shall pay the full amount deducted to the
relevant taxation authority or other governmental authority in accordance with
applicable law.
5.2 The Guarantor shall indemnify the Agent and each of the Banks for the full
amount of Taxes paid by the Agent and/or the Banks and any liability (including
penalties, additions to tax, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 14 days from the date
of written demand therefor made by the Agent or any Bank or such shorter period
as may be required by applicable law.
5.3 Within 14 days after the date of any payment of Taxes, the Guarantor shall
furnish to the Agent the original receipt of payment thereof or a certified copy
of such receipt.
6. Reporting
The Guarantor will furnish to the Agent as soon as they become available copies
of its audited financial statements and such additional financial or other
information as the Agent may from time to time reasonably request.
7. Currency of Account
Page 38
Moneys received or recovered by the Agent or the Banks or any of them from the
Guarantor in a currency other than that in which the said sums are due and
payable under or pursuant to an Accepted Bill of Exchange or under Clause 2(ii)
hereof shall be converted into the latter currency at the rate at which the
recipient would have sold the latter currency for the former at the opening of
business on the latest day before the receipt or recovery on which the recipient
quoted generally a rate of exchange for such a sale.
8. Continuing Security
The obligations of the Guarantor herein contained shall constitute and be
continuing obligations notwithstanding any settlement of account or other matter
or thing whatsoever, and in particular but without limitation, shall not be
considered satisfied by any intermediate payment or satisfaction of all or any
of the obligations of the Principal under any Accepted Bill of Exchange and
shall continue in full force and effect until final payment in full of all
amounts owing by the Principal thereunder and total satisfaction of all the
Principal's actual and contingent obligations thereunder.
9. Set-Off
The Agent and the Banks or any of them may at any time combine any account in
their books in the name of the Guarantor (at whatever branch and in whatever
currency denominated) with any other such account.
10. Notices
Any demand to be made by the Agent hereunder may be made at the principal place
of business of the Guarantor for the time being.
11. No Assignment
The Guarantor shall not be entitled to assign or transfer all or any of its
rights or obligations hereunder.
12. Governing Law
This Guarantee shall be governed by and construed in accordance with English law
and the Guarantor hereby irrevocably submits to the jurisdiction of the English
Courts.
IN WITNESS WHEREOF this Guarantee has been duly executed as a deed and is
intended to be and is hereby delivered on the date first above written.
[Form of execution dependent on Klocknerl
Page 39
Exhibit 4
FORM OF TRANSFER CERTIFICATE
To: [Agent]
TRANSFER CERTIFICATE
relating to the agreement (as from time to time amended, varied, novated or
supplemented, the "Agreement") dated [ ] 199[ ] whereby an offshore bill
discount facility was made available to [ ] by a group of banks on whose
behalf [Banque Nationale de Paris] acted as agent in connection therewith.
1. Terms defined in the Agreement shall, subject to any contrary indication,
have the same meanings herein. The terms Bank, Transferee, Bank's Participation
and Amount Transferred are defined in the schedule hereto.
2. The Bank confirms that the Bank's Participation is an accurate summary of its
participation in the Agreement and requests the Transferee to accept and procure
the transfer to the Transferee of a percentage of the Bank's Participation
(equal to the percentage that the Amount Transferred is of the aggregate of the
component amounts (as set out in the schedule hereto) of the Bank's
Participation) by counter-signing and delivering this Transfer Certificate to
the Agent at its address for the service of notices specified in the Agreement.
3. The Transferee hereby requests the Agent to accept this Transfer Certificate
as being delivered to the Agent pursuant to and for the purposes of Section
11.05 of the Agreement so as to take effect in accordance with the terms thereof
on the Transfer Date or on such later date as may be determined in accordance
with the terms thereof.
4. The Transferee confirms that it has received a copy of the Agreement together
with such other information as it has required in connection with this
transaction and that it has not relied and will not hereafter rely on the Bank
to check or enquire on its behalf into the legality, validity, effectiveness,
adequacy, accuracy or completeness of any such information and further agrees
that it has not relied and will not rely on the Bank to assess or keep under
review on its behalf the financial condition, creditworthiness, condition,
affairs, status or nature of the Company.
5. The Transferee hereby undertakes with the Bank and each of the other parties
to the Agreement that it will perform in accordance with their terms all those
obligations which by the terms of the Agreement will be assumed by it after
delivery of this Transfer Certificate to the Agent and satisfaction of the
conditions (if any) subject to which this Transfer Certificate is expressed to
take effect.
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6. The Bank makes no representation or warranty and assumes no responsibility
with respect to the legality, validity, effectiveness, adequacy or
enforceability of the Agreement or any document relating thereto and assumes no
responsibility for the financial condition of the Company or for the performance
and observance by the Company of any of its obligations under the Agreement or
any document relating thereto and any and all such conditions and warranties,
whether express or implied by law or otherwise, are hereby excluded.
7. The Bank hereby gives notice that nothing herein or in the Agreement (or any
document relating thereto) shall oblige the Bank to (a) accept a re-transfer
from the Transferee of the whole or any part of its rights, benefits and/or
obligations under the Agreement transferred pursuant hereto or (b) support any
losses directly or indirectly sustained or incurred by the Transferee for any
reason whatsoever including the non-performance by the Company or any other
party to the Agreement (or any document relating thereto) of its obligations
under any such document. The Transferee hereby acknowledges the absence of any
such obligation as is referred to in (a) or (b) above.
8. This Transfer Certificate and the rights, benefits and obligations of the
parties hereunder shall be governed by and construed in accordance with English
law.
THE SCHEDULE
1. Bank:
2. Transferee:
3. Transfer Date:
4. Bank's Participation:
5. Amount Transferred:
[Transferor Bank] [Transferee Bank]
By: By:
Date: Date:
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Administrative Details of Transferee
Address:
Contact Name:
Account for Payments:
Telex:
Fax:]
Telephone:
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Exhibit 5
CERTIFICATE OF OFFTAKER
To: [Agent]
Date: [[Address]
Re: Offshore Bill Discount Facility Agreement (the "Agreement") dated [ ],
1998 and entered into between Nakornthai Strip Mill Public Company Limited
("the Company"), Banque Nationale de Paris (the "Agent") and the Banks
identified therein
We understand that it is a condition precedent to the obligation of the Banks
under the Agreement to make a Payment that this confirmation be given by us to
the Agent. Terms defined in the Agreement have the same meaning where used
herein.
We confirm that, at the date hereof, the representations and warranties set out
below are true ..and acknowledge that the Agent and the Banks shall be making a
Payment to the Company in reliance on these representations and warranties:
1. Status and Due Authorisation. We have power to accept the Bill of Exchange in
respect of which the confirmation is given and to exercise its rights and
perform its obligations thereunder and all action required to authorise its
acceptance of Bill of Exchange and its performance of its obligations hereunder
has been duly taken.
2. No Deductions or Withholding. Under the laws of Germany in force at the date
hereof, we will not be required to make any deduction or withholding from any
payment it may make hereunder.
3. Claims Pari Passu. Under the laws of Germany in force at the date hereof, the
claims of the Agent and the Banks against us under the Bill of Exchange will
rank at least pari passu with the claims of all our other unsecured creditors.
4. No Immunity. In any proceedings taken in Germany in relation to the Bill of
Exchange, we will not be entitled to claim for ourselves or any of our assets
immunity from suit, execution, attachment or other legal process.
5. Governing Law and Judgments. In any proceedings taken in Germany in relation
to the Bill of Exchange, the choice of English law as the governing law of the
Bill of Exchange and any judgment obtained in England will be recognised and
enforced.
6. Validity and Admissibility in Evidence. All acts, conditions and things
required to be done, fulfilled and performed in order (a) to enable us lawfully
to enter into, exercise our rights under and perform and comply with the
obligations expressed to be assumed by us in the Bill of Exchange, (b) to ensure
that the obligations expressed to be assumed by us in the Bill of Exchange are
legal, valid and binding and (c) to make the Bill of Exchange admissible in
evidence in Germany have been done, fulfilled and performed.
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7. No filing or Stamp Taxes. Under the laws of Germany in force at the date
hereof, it is not necessary that the Bill of Exchange be filed, recorded or
enrolled with any court or other authority in Germany or that any stamp,
registration or similar tax be paid on or in relation to the Bill of Exchange.
8. Binding Obligations. The obligations expressed to be assumed by us in the
Bill of Exchange are legal and valid obligations binding on us in accordance
with the terms hereof.
9. Change in Control. At the date hereof [KST is a Subsidiary of the
Guarantor/all of the issued and outstanding shares of Preussag are owned by
Saltzgitter AG.]
Any and all payments under the relevant Bill of Exchange shall be made free and
clear of and -without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto ("Taxes"). If we are required by law to deduct any Taxes from or in
respect of any sum payable thereunder to the Payee (i) the sum payable shall be
increased as may be necessary so that after making all required deductions the
Payee receives an amount equal to the sum it would have received had no such
deductions been made, (ii) we shall make such deductions and (iii) we shall pay
the full amount deducted to the relevant taxation authority or other
governmental authority in accordance with applicable law.
_______________________________
for and on behalf of
[KST/Preussag]
Name:
Title:
_______________________________
agreed and accepted by
[the Agent] for
and on behalf of
itself, the
Arranger
and the Banks
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Exhibit 6
CERTIFICATE OF COMPANY
Date: [ ]
To: [Agent]
[Address]
Re: Offshore Bill Discount Facility Agreement (the "Agreement") dated [ ],
1998 and entered into between Nakornthai Strip Mill Public Company Limited
("the Company"), Banque Nationale de Paris (the "Agent") and the Banks
identified therein.
We understand that it is a condition precedent to the obligations of the Banks
under the Agreement to make a Payment that this confirmation be given by us to
the Agent.
Terms defined in the Agreement have the same meanings where used herein.
We confirm that, as of the date hereof, the Company is, individually and
together with its Subsidiaries, Solvent.
____________________________
Authorised Director
for and on behalf of
Nakornthai Strip
Mill Public Company
Limited
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Exhibit 7
CERTIFICATE OF OFFTAKER
To: [Agent]
[Address] Date: [ ]
Re: [Onshore Bill Discount Facility] [Offshore Bill Discount Facility]
Agreement (the "Agreement") dated [ ] 1998 and entered into between
Nakornthai Strip Mill Public Company Limited (the "Company"), Banque
Nationale de Paris (the "Agent" and the "Arranger") and the Banks
identified therein
We understand that it is, inter alia, a condition precedent to the obligation of
the Banks under the Agreement to make a Payment that this confirmation be given
by us to the Agent. Terms defined in the Agreement have the same meaning where
used herein.
We confirm at the date hereof, that the sum of:
(i) all accounts receivable of the [relevant Offtakerl (the "Offtaker") in the
period from the date hereof to and including the date that is [the number
of days until the maturity of the Bill of Exchange being financed] from
the date hereof (the "Maturity Date"); and
(ii) Available Cash; exceeds the sum of
(iii) all accounts payable by the Company in the period from the date hereof to
and including the Maturity Date;
(iv) all indebtedness of the Company failing due for payment from the date
hereof to and including the Maturity Date; and
(v) the sum of the Face Value of [all] Bills of Exchange accepted by
[KST/Preussag] including the Bill of Exchange in connection with the issue
of which this certificate is given
provided, however, that no amount shall be counted twice in the above
determination.
For the purposes of this certificate:
"indebtedness" shall be construed so as to include any obligation (whether
incurred as principal or as surety) for the payment of repayment of money,
whether present or future, actual or contingent.
"Available Cash" means on any date the aggregate (expressed in US Dollars or as
a US Dollar equivalent) of
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(i) all amounts, which are legally and beneficially owned by the
Offtaker standing to the credit of current and deposit accounts with
banks and other deposit taking institutions.
(ii) the face value of all certificates of deposit legally and
beneficially owned by the Offlaker denominated in US Dollars or
Deutsche marks of any bank having a short-term issuer debt rating of
A-1 or better issued by Standard & Poor's Corporation or P-1 or
better by Moody's Investors Service, Inc;
(iii) the face value of all fully negotiable and marketable debt
securities legally and beneficially owned by the Offlaker and issued
by the government of a country being a member of the Organization
for Economic Cooperation and Development or a corporation having a
short term debt rating of A-1 or better by Standard & Poor's
Corporation or P-1 or better by Moody's Investors Service, Inc and a
long-term debt rating of BBB or better by Standard & Poor's
Corporation or Baa or better by Moody's Investors Service, Inc in
each case denominated in US Dollars or Deutschmarks maturing less
than [two] years from the date of acquisition and which constitute
direct and primary obligations; and
[(iv) all equity securities listed on a recognised stock exchange legally
and beneficially owned by the Offtaker and for the purposes of this
determination such security shall have the market value attributable
thereto on the date hereof;]
in each case excluding any such amount or security to which Or in respect of
which the right of access, use, alienation or any of the other rights of a legal
and beneficial owner are blocked or restricted (whether by a Encumbrance or
otherwise).
_________________________
Director
for and on behalf of
[Offtaker]
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SYNDICATED OFFSHORE BILL DISCOUNT FACILITY AGREEMENT
EXECUTION PAGES
THE COMPANY
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
By: /s/ John W. Schultes
--------------------------
Title: President/CEO
THE AGENT
BANQUE NATIONALE DE PARIS, LONDON BRANCH
By: /s/ Francois Van Den Baserl
--------------------------
Title: Country Manager
THE ARRANGER
BANQUE NATIONALE DE PARIS, NEW YORK BRANCH
By: /s/ David A. Barcos
--------------------------
Title: Vice President
THE BANKS
BANQUE NATIONALE DE PARIS, SINGAPORE BRANCH
By: /s/ Peter Labrie
--------------------------
Title: Deputy General Manager