AMENDMENT NO. 2 TO THE
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TECHNICAL ASSISTANCE AGREEMENT
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THIS AMENDMENT by and between NKK CORPORATION, a Japanese corporation, having
its main office at 0-0-0, Xxxxxxxxxx, Xxxxxxx-xx, Xxxxx, Xxxxx (herein called
"NKK") and NATIONAL STEEL CORPORATION, a Delaware corporation having its
principal office at 0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxxxxxx, XX 00000-0000, X.X.X.
(herein called "NSC"), is made effective December 11, 2000.
WITNESSETH:
WHEREAS, NKK and NSC entered into a Technical Assistance Agreement dated as of
June 25, 1990 (the "Agreement"), pursuant to which NKK provides Technical
Assistance to NSC; and
WHEREAS, NKK and NSC desire to amend the Agreement to provide for
indemnification of NKK under certain circumstances;
NOW, THEREFORE, in consideration of the premises and mutual covenants herein
contained, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Capitalized terms as used herein and not defined herein shall have the same
meaning as set forth in the Agreement.
2. The following shall be added as a new Section 16 of the Agreement:
"16. INDEMNIFICATION
16.1 Subject to the terms and conditions set forth in this Section 16,
NSC hereby agrees to indemnify, defend and hold harmless NKK and its
subsidiaries (including without limitation NKK U.S.A. Corporation),
directors, officers and employees (together, the "Indemnitees") from
and against any claims, actions, suits, proceedings and expenses,
including reasonable attorneys fees, which result from the fact that
Technical Assistance has been provided to NSC by NKK (together, the
"Claims"); provided however that NSC shall have no obligation with
respect to any Claim which results from the negligence or misconduct
of an Indemnitee. It is understood and agreed that the indemnification
provided in this Section 16 shall also apply to any Claim that was
commenced prior to the date of this Amendment No. 2 to the Agreement.
16.2 In the event that an Indemnitee receives notice of a Claim, it
shall immediately (i) notify NSC in writing, specifying the nature of
the Claim and the total monetary amount or other relief which is
sought, and (ii) provide to NSC a copy of any lawsuit, complaint or
other pleading which is filed; provided, however, that the failure of
the Indemnitee to provide such notice will not relieve NSC of its
obligations hereunder, except to the extent that NSC's ability to
defend the Claim is prejudiced thereby.
16.3 NSC shall have the right to assume and control, at NSC's expense,
the defense and settlement of the Claim with counsel of its choice.
NSC shall notify the Indemnitee of its election to assume the defense
of the Claim within 15 days after receiving the notice and other
documents required pursuant to Section 16.2 above.
16.4 If NSC elects to assume the defense of a Claim, it may settle
such Claim in its sole discretion so long as either (a) such
settlement is a monetary settlement which provides an unconditional
release of the Indemnitee with respect to the Claim, or (b) Indemnitee
consents to such settlement, which consent shall not be unreasonably
withheld.
16.5 If NSC shall not have assumed the defense of the Claim within the
15 day period set forth in Section 16.3 above, the Indemnitee may
assume the defense with counsel selected by it and may make any
compromise or settlement thereof or otherwise defend the Claim, and
NSC shall pay to the Indemnitee all amounts paid by the Indemnitee in
the defense and settlement of the Claim.
16.6 In the event that NSC elects to assume the defense of the Claim,
the Indemnitee agrees to cooperate with NSC and its counsel in the
defense of the Claim. Such cooperation shall include, but not be
limited to, making available its employees and all relevant files and
records.
16.7 In the event that NSC elects to assume the defense of the Claim,
the Indemnitee shall nevertheless have the right to employ separate
counsel and participate in the defense of the Claim at its own
expense; provided that NSC shall, at all times, have the right to
control the defense of the Claim.
16.8 In the event that NSC provides any indemnification or makes any
payment to Indemnitee in respect of any matter as to which
indemnification is provided for herein, NSC shall be subrogated to the
extent of such indemnification or other payment to all of the related
rights of recovery of Indemnitee against other persons or entities.
Indemnitee shall execute all documents reasonably required and shall
do everything that may be reasonably necessary to secure such rights
and enable NSC effectively to bring suit to enforce such rights.
16.9 The indemnification provided for in this Section 16 shall not be
deemed exclusive of any other rights to which Indemnitee may be
entitled under the Agreement, any other agreement or applicable law."
3. Each party represents and warrants to the other that it has the requisite
power and authority to enter into this Amendment.
4. Except as amended hereby, all of the terms of the Agreement shall remain in
full force and effect.
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IN WITNESS WHEREOF, the parties have executed this Amendment No. 5 as of the
date first set forth above.
NATIONAL STEEL CORPORATION NKK CORPORATION
By: By:
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Title: Title:
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Date: Date:
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