Exhibit 4.20
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Outstanding Debentures Obligations, collectively, the "Obligations") and (b)
each of the Secured Creditors has appointed the Collateral Agent as the
Collateral Agent for and on its behalf, including in respect of the Security
Sharing Agreement.
Accordingly, the Grantors and the Collateral Agent on behalf of each of the
Secured Creditors, hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definition of Terms Used Herein. Unless the context
otherwise requires, all capitalized ten-as used but not defined herein shall
have the meanings set forth in the Indentures and the Security Sharing Agreement
and all references to the Uniform Commercial Code shall mean the Uniform
Commercial Code in effect in the State of New York as of the date hereof.
SECTION 1.02 Definition of Certain Term Used Herein. As used herein,
the following terms shall have the following meanings-
"Accounts" shall mean the Notes Sinking Fund Account and the
Offshore Revenue Sub-Account.
"Collateral" shall mean (a) the Notes Sinking Fund Account, (b) the
Offshore Revenue SubAccount, (c) any Investment Property or Financial Assets
held or owned in or through either of (a) or (b), and (d) any and all Proceeds
of the foregoing.
"Entitlement Holder' shall mean a person identified in the records
of a Securities Intermediary as the person having a Security Entitlement against
the Securities Intermediary. If a person acquires a Security Entitlement by
virtue of Section 8-501(b)(2) or (3) of the Uniform Commercial Code, such person
is the Entitlement Holder.
'Entitlement Order' shall mean a notification communicated to a
Securities Intermediary (including without limitation the Deposit Bank)
directing transfer or redemption of a Financial Asset to which the Entitlement
Holder (including but not limited to the Grantor) has a Security Entitlement.
"Financial Asset" shall mean (a) a Security, (b) an obligation of a
person or a share, participation or other interest in a person or in property or
an enterprise of a person, which is, or is of a type, dealt with in or traded on
financial markets, or which is recognized in any area in which it is issued or
dealt in as a medium for investment or (c) any property that is held by a
Securities Intermediary for another person in a Securities Account if the
Securities Intermediary has expressly agreed with the other person that the
property is to be treated as a Financial Asset under Article 8 of the Uniform
Commercial Code. As the context requires, the term Financial Asset shall mean
either the interest itself or the means by which a person's claim to it is
evidenced, including a certificated or uncertificated Security, a certificate
representing a Security or a Security Entitlement.
"Investment Property' shall mean all Securities (whether
certificated or uncertificated), Security Entitlements and Securities Accounts
of any Grantor held by the Collateral Agent, under its exclusive dominion and
control, or through the Accounts whether now owned or hereafter acquired by the
Collateral Agent.
"Notes Sinking Fund Account' shall have the meaning, assigned to
such term in the Security Sharing Agreement.
'Offshore Revenue Sub-Accouter' shall have the meaning assigned to
such term in the Security Sharing Agreement.
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Person " shall mean any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Proceeds' shall mean any consideration received from the sale,
exchange, license, lease or other disposition of Collateral, any value received
as a consequence of the possession of any Collateral and any payment received
from any insurer or other person or entity as a result of the destruction, loss,
theft, damage or other involuntary conversion of whatever nature of any asset or
property which constitutes Collateral, and shall include (a) all cash and
negotiable instruments received by or held on behalf of the Collateral Agent and
(b) any and all other amounts from time to time paid or payable under or in
connection with any of the Collateral.
"Secured Creditors" shall have the meaning assigned to such term in
the Security Sharing Agreement.
'Securities " shall mean any obligations of an issuer or any shares,
participation's or other interests in an issuer or in property or an enterprise
of an issuer which (a) are represented by a certificate representing a security
in bearer or registered form, or the transfer of which may be registered upon
books maintained for that purpose by or on behalf of the issuer, (b) are one of
a class or series or by its terms is divisible into a class or series of shares,
participations interests or obligations and (c)(i) are, or are of a type, dealt
with or trade on securities exchanges or securities markets or (ii) are a medium
for investment and by their terms expressly provide that they are a security
governed by Article 8 of the Uniform Commercial Code.
"Securities Account' shall mean an account to which a Financial
Asset is or may be credited in accordance with an agreement under which the
person maintaining the account undertakes to treat the person for whom the
account is maintained as entitled to exercise rights that comprise the Financial
Asset.
"Security Entitlements' shall mean the rights and property interests
of an Entitlement Holder with respect to a Financial Asset.
"Security Interest" shall have the meaning assigned to such term in
Section 2.01.
"Securities Intermediary" shall mean (a) a clearing corporation or
(b) a person, including a bank or broker, that in the ordinary course of its
business maintains securities accounts for others and is acting in that
capacity.
ARTICLE II
Security Interest
SECTION 2.01 Security Interest. As security for the payment or
performance, as the case may be, in full of the Obligations, each Grantor hereby
bargains, sells, conveys, assigns, sets over, mortgages, pledges, hypothecates
and transfers to the Collateral Agent, its successors and assigns, for the
ratable benefit of the Secured Creditors, and hereby grants to the Collateral
Agent, its successors and assigns, for the ratable benefit of the Secured
Creditors, a security interest in, all of such Grantor's right, tide and
interest in, to and under the Collateral (the "Security Interest"). Without
limiting the foregoing, the Collateral Agent is hereby authorized to file one or
more financing statements, continuation statements or other documents for the
purpose of perfecting, confirming, continuing, enforcing or protecting the
Security Interest granted by each Grantor, without the signature of any Grantor,
and naming any Grantor or the Grantors as debtors and the Collateral Agent as
secured party.
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SECTION 2.02 No Assumption of Liability. The Security Interest is
granted as security only and shall not subject the Collateral Agent or any other
Secured Party to, or in any way alter or modify, any obligation or liability of
any Grantor with respect to or arising out of the Collateral.
ARTICLE III
Representations and Warranties of the Grantors
The Grantors jointly and severally represent and warrant to the Collateral Agent
and the Secured Creditors that:
SECTION 3.01. Title and Authority. Each Grantor has good and valid
rights in the Collateral with respect to which it has purported to grant a
Security Interest hereunder and has full power and authority to grant to the
Collateral Agent the Security Interest in such Collateral pursuant hereto and to
execute, deliver and perform its obligations in accordance with the terms of
this Agreement, without the consent or approval of any other person other than
any consent or approval which has been obtained.
SECTION 3.02. Filings. Fully executed Uniform Commercial Code
financing statements or other appropriate filings, recordings or registrations
containing a description of the Collateral with evidence of filing thereon will,
as soon as practicable after the date hereof, be delivered to the Collateral
Agent which are all the filings, recordings and registrations that are necessary
to publish notice of and protect the validity of and to establish a legal, valid
and perfected security interest in favor of the Collateral Agent (for the
ratable benefit of the Secured Creditors) in respect of all Collateral in which
the Security Interest may be perfected by filing, recording or registration in
the United States (or any political subdivision thereof) and its territories and
possessions, and no further or subsequent filing, refiling, recording,
rerecording, registration or registration is necessary in any such jurisdiction,
except as provided under applicable law with respect to the filing of
continuation statements.
SECTION 3.03. Validity of Security Interest. The Security Interest
constitutes (a) a legal and valid security interest in all the Collateral
securing the payment and performance of the Obligations and (b) subject to the
filings described in Section 3.02 above, a perfected security interest in all
Collateral in which a security interest may be perfected by filing, recording or
registering a financing statement or analogous document in the United States (or
any political subdivision thereof) and its territories and possessions pursuant
to the Uniform Commercial Code or other applicable law in such jurisdictions.
The Security Interest is and shall be prior to any other Lien on any of the
Collateral.
SECTION 3.04 Absence of Other Liens. The Collateral is owned by the
Grantors free and clear of any Lien. The Grantor has not filed or consented to
the filing of (a) any financing statement or analogous document under the
Uniform Commercial Code or any other applicable laws covering any Collateral,
(b) any assignment in which any Grantor assigns any Collateral or any security
agreement or similar instrument covering any Collateral with any foreign
governmental, municipal or other office, which financing statement or analogous
document, assignment, security agreement or similar instrument is still in
effect or (c) entered into any agreement that purports to give any Person other
than the Collateral Agent any rights in or control over any Collateral.
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ARTICLE IV
Covenants
SECTION 4.01 Change of Name, Location of Collateral, Records; Place
of Business. Each Grantor agrees promptly to notify the Collateral Agent in
writing of any change (a) in its corporate name or in any trade name used to
identify it in the conduct of its business or in the ownership of its
properties, (b) in the location of its chief executive office, its principal
place of business, any office in which it maintains books or records relating to
Collateral owned by it or any office or facility at which Collateral owned by it
is located (including the establishment of any such new office or facility), (c)
in its identity or corporate structure or (d) in its Federal Taxpayer
Identification Number. Each Grantor agrees not to effect or permit any change
referred to in the preceding sentence unless all filings have been made under
the Uniform Commercial Code or otherwise that are required in order for the
Collateral Agent to continue at all times following such change to have a valid,
legal and perfected first priority security interest in all the Collateral.
SECTION 4.02 Control Agreement. Each Grantor agrees not to enter
into any agreements that purport to give any Person other than the Collateral
Agent any rights in or any control over the Accounts.
SECTION 4.03 Further Assurances. Each Grantor agrees, at its own
expense, to execute, acknowledge, deliver and cause to be duly filed all such
further instruments and documents and take all such actions as the Collateral
Agent may from time to time request to better assure, preserve, protect and
perfect the Security Interest and the rights and remedies created hereby,
including the payment of any fees and taxes required in connection with the
execution and delivery of this Agreement, the granting of the Security Interest
and the filing of any financing statements or other documents in connection
herewith or therewith.
ARTICLE V
The Notes Sinking Fund Account and
the Offshore Revenue Sub-Account
SECTION 5.01. Sole Dominion and Control The Grantors acknowledge
that the Collateral shall be under the sole dominion and control of the
Collateral Agent, and that all of the right, title and interest of any Grantor
in and to each and every item of the Collateral shall be subject to the security
interest and control of the Collateral Agent. This Agreement shall constitute a
control agreement within the meaning set forth in Article 8 of the Uniform
Commercial Code and Chase, as Deposit Bank, shall follow only those directions
and Entitlement Orders in respect of the Collateral as are delivered by the
Collateral Agent.
SECTION 5.02. Withdrawals and Investments. The Grantors acknowledge
that (a) the Collateral Agent is the sole signatory for the Accounts, (b) any
payment or withdrawal from or investment of funds deposited in either of the
Accounts shall be made solely at the direction of the Collateral Agent and (c)
any indispensable instruments that govern or evidence either of the Accounts
have been delivered to the Collateral Agent and not to the Grantors. The
Grantors agree that if any indispensable instruments that govern or evidence
either of the Accounts are delivered to any Grantor, such Grantor will
immediately deliver such instrument to the Collateral Agent.
SECTION 5.03 "Financial Assets "Election. The Collateral Agent and
the Deposit Bank hereby agree that each item of property (whether Investment
Property, Financial Assets, Securities, instruments or cash) credited to the
Collateral shall be treated as a "financial asset" within the meaning of Section
8-102(a)(9) of the Uniform Commercial Code.
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ARTICLE VI
Administration; Priority of rights
The Collateral Agent agrees, for itself and for each other Secured
Creditor, that it and each other Secured Creditor shall be bound by the terms of
the Security Sharing Agreement in connection with the administration (including
amendments) of this Agreement, including the provisions of Section 6. 1, Section
6.2 and Section 6.3 thereof.
ARTICLE VII
Deposit Bank
SECTION 7.01. Appointment of deposit Bank. The Collateral Agent
hereby appoints the Deposit Bank as its sub-agent under this Security Agreement
and authorizes the Deposit Bank, on the terms and subject to the conditions set
forth herein, to receive payments in respect of the Collateral. The Deposit Bank
shall be the Collateral Agent's agent for the purpose of holding and investing
the Collateral.
SECTION 7.02 Instructions The Grantors and the Deposit Bank
acknowledge that the Collateral Agent is the only Person who may give
instructions to the Deposit Bank in respect of the Collateral. Neither the
Grantors nor any person or entity claiming by, through or under the Grantors
shall have any right, title or interest in, or control over the use of, or any
right to withdraw any amount from, the Collateral, except that the Collateral
Agent shall have the right to withdraw amounts from the Accounts. The Deposit
Bank shall be entitled to rely on, and shall act in accordance with, all
instructions given to it by the Collateral Agent with respect to the Collateral.
SECTION 7.03 Consent of Grantors. The Grantors consent to the
appointment of the Deposit Bank and agree that the Deposit Bank shall incur no
liability to any Grantor as a result of any action taken pursuant to an
instrument given by the Collateral Agent in accordance with the provisions of
this Agreement. The Grantors agree to indemnify and defend the Deposit Bank
against any loss, liability, claim or expense (including reasonable attomeys'
fees) arising from the Deposit Bank's entry into this Agreement and actions
taken hereunder, except to the extent resulting from Deposit Bank's gross
negligence or willful misconduct; provided, however, that the Grantors will not
indemnify the Deposit Bank against any consequential damages or loss of profits
or loss of business.
SECTION7.04 Transfer of Rights. The Deposit Bank will not assign or
transfer any of its rights or obligations hereunder (other than to the
Collateral Agent) without the prior written consent of the other parties hereto,
and any such attempted assignment or transfer shall be void.
SECTION 7.05 Right to Setoff The Deposit Bank hereby irrevocably
waives any right to set off against, or otherwise deduct from, any funds held in
the Accounts and all Investment Property or Financial Assets (and Proceeds
thereof) that come into its possession in connection with the Accounts any
indebtedness or other claim owed by any Grantor or any affiliate thereof to the
Deposit Bank.
SECTION 7.06 Subordination of the Deposit Bank. The Deposit Bank
hereby irrevocably subordinates to the Security Interest any security interest
in or lien on any of the Collateral that the Deposit Bank may have from time to
time by operation of law or by agreement.
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SECTION 7.07 Representation, Warranties and Covenants of the Deposit
Bank. The Deposit Bank represents, warrants and covenants to the Grantors, the
Collateral Agent and the Secured Creditors that:
(a) the Deposit Bank is a Securities Interrnediary and is acting in that
capacity;
(b) each Account is a Security Account;
(c) the Deposit Bank will treat each item of property (including without
limitation each Security Entitlement) credited to any Account, other than cash,
as a Financial Asset;
(d) each Account is maintained in the name of the respective Grantor, and
the security interest of the Collateral Agent in each Account is indicated on
the books of the Deposit Bank;
(e) the Deposit Bank has not and will not enter into any agreement under
which the Deposit Bank agrees to comply with any directions or Entitlement
Orders regarding any of the Collateral originated by any person other than the
Collateral Agent; and
(f) the Deposit Bank will promptly notify the Grantors and the Collateral
Agent upon the Deposit Bank's obtaining any notice of an adverse claim in
respect of any of the Collateral.
ARTICLE VIII
Miscellaneous
SECTION 8.01 Notices. All communications and notices hereunder shall
be in writing and given as provided in Section 12 of the Security Sharing
Agreement.
SECTION8.02 Binding Effect; Several Agreement; Assignments. Whenever
in this Agreement any of the parties hereto is referred to, such reference shall
be deemed to include the successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of the Grantors that are
contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns. This Agreement shall become effective as to
any Grantor when a counterpart hereof executed on behalf of such Grantor shall
have been delivered to the Collateral Agent and a counterpart hereof shall have
been executed on behalf of the Collateral Agent and thereafter shall be binding
upon such Grantor and the Collateral Agent and their respective successors and
assigns, and shall inure to the benefit of such Grantor, the Collateral Agent
and the Secured Creditors, and their respective successors and assigns, except
that such Grantor shall not have the right to assign its rights hereunder or any
interest herein or in the Collateral (and any such attempted assignment shall be
void), except as expressly contemplated by this Agreement or the Indentures.
SECTION 8.03 Survival of agreement; Severability.(a) All covenants,
agreements, representations and warranties made by any Grantor herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
Collateral Agent, and the Secured Creditors and shall survive the issuance of
the Notes by the Note Issuers and the sale of the Debentures by the Note
Issuers, regardless of any investigation made by the Secured Creditors or on
their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on or any other fee or amount payable under
this Agreement is outstanding and unpaid.
(b) In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby (it
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being understood that the invalidity of a particular provision in a particular
jurisdiction shall not in and of itself affect the validity of such provision in
any other jurisdiction). The parties shall endeavor in good-faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
(c) This Agreement shall remain in full force and effect as to all
Obligations remaining unpaid, notwithstanding the discharge and payment in full
of any and all Obligations owed under any one or more of the Indentures. Upon
any such discharge of any one or more of the Indentures, the Grantors hereby
agree to enter into such conforming changes hereto as shall be reasonably
satisfactory to the Trustee confirming the rights provided hereunder in respect
of the remaining Obligations outstanding.
SECTION 8.04 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. THE
JURISDICTION OF THE DEPOSIT BANK, WITHIN THE MEANING OF SECTION 8-110(e) OF THE
UNIFORM COMMERCIAL CODE, IS THE STATE OF NEW YORK.
SECTION 8.05 Counterrparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but all of which,
when taken together, shall constitute a single contract, and shall become
effective as provided in Section 7.02. Delivery of an executed counterpart of a
signature page to this Agreement by facsimile transmission shall be as effective
as delivery of a manually executed counterpart of this Agreement.
SECTION8.06. Rules of Interpretation. The rules of interpretation
specified in Section 1.04 of the Indentures shall be applicable to this
Agreement. Section headings used herein are for convenience of reference only,
are not part of this Agreement and are not to affect the construction of, or to
be taken into consideration in interpreting this Agreement.
SECTION 8.07 Jurisdiction; Consent to Service of Process. (a) Each
Grantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that, to the extent permitted by applicable law, all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and 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 Collateral Agent or any Secured Creditor may otherwise have to
bring any action or proceeding relating to this Agreement against any Grantor or
its properties in the courts of any jurisdiction.
(a) Each Grantor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any New York State or
Federal court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(b) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 7.0 1. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
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SECTION8.08 Waiver Of Jury Trial. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION8.09. No Waiver. No failure or delay on the part of any of
the parties hereto in exercising any right, power or privilege under this
Agreement shall impair such right, power or privilege or be construed to be a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such right power or privilege preclude other or further exercise
thereof or of any other right, power or privilege.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
NAKORNTHAI STRIP MILL PUBLIC COMPANY
LIMITED,
by
/s/ Xxxx X. Xxxxxxxx
-----------------------------------
Title: President/CEO
NSM STEEL (DELAWARE) INC.,
by
/s/ Xxxx X. Xxxxxxxx
-----------------------------------
Title: President/CEO
NSM STEEL COMPANY LTD.,
by
/s/ Xxxx X. Xxxxxxxx
-----------------------------------
Title: President/CEO
THE CHASE MANHATTAN BANK, as Trustee under
each of the Indentures,
by
/s/ Xxxxxxx Xxxxxx
-----------------------------------
Title:
THE CHASE MANHATTAN BANK, as Collateral Agent,
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by
/s/ Xxxxxxx Xxxxxx
-----------------------------------
Title:
THE CHASE MANHATTAN BANK, as Deposit Bank
by
/s/ Xxxxxxx Xxxxxx
-----------------------------------
Title:
THE INDUSTRIAL FINANCE CORPORATION OF
THAILAND, as Facility Agent for the Thai Lenders,
by /s/ [illegible]
-----------------------------------
Name:
Title:
