Exhibit 4.14
ASSIGNMENT OF BONDS
THIS AGREEMENT is made on 12 March 1998
BETWEEN:
(1) NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED, a public limited company
duly organized and validly existing under the laws of the Kingdom of
Thailand having its registered office at Xx. 0, XX Xxxxx, 00xx Xxxxx,
Xxxxxx Xxxxxxxxx, Xxxx Suanluang, Bangkok, Thailand (the "Assignor");
(2) The financial institutions whose names are listed in Exhibit 1 (the "Thai
Lenders") represented by THE INDUSTRIAL FINANCE CORPORATION OF THAILAND, a
corporation duly organized and validly existing under the laws of the
Kingdom of Thailand having its registered office at Xx. 0000 Xxx Xxxxxxxxx
Xxxx, Xxxxxxx 00000, as Facility Agent for the Thai Lenders (the "Thai
Facility Agent");
(3) THE CHASE MANHATTAN BANK, a company duly organized and validly existing
under the laws of the State of New York, having its registered office at
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, X.X.X., having its branch office
in Bangkok, Thailand, located at 00 Xxxxx Xxxxxxx Xxxx, Xxxxx, Xxxxxxx,
Xxxxxxx 00000, acting as the Trustees and the Debenture Trustee (as
defined below);
AND
(4) THE CHASE MANHATTAN BANK as collateral agent (the "Collateral Agent").
WHEREAS:
A. The Assignor and the Thai Lenders entered into a credit facility agreement
dated 27 September 1995, (the "CFA") whereunder credit facilities of Baht
3,300,000,000 and US$308,000,000 have been granted;
B. The Assignor intends to procure financing from abroad by having NSM Steel
Company, Ltd. ("NSM Cayman"), a company incorporated under the laws of the
Cayman Islands and in which the Assignor holds 100 percent of its shares,
and NSM Steel (Delaware) Inc., a company incorporated under the laws of
the State of Delaware, the United States, a wholly owned subsidiary of NSM
Cayman (hereinafter collectively referred to as the "Note Issuers"),
acting as agent of NSM Cayman pursuant to an agency agreement, issue
US$452,500,000 of indebtedness comprised of (a) US$249,000,000 (aggregate
principal amount at maturity) of 12% Senior Mortgage Notes Due 2006 (the
"Senior Notes") which will be issued pursuant to an indenture dated as of
1 March 1998 (the "Senior Note Indenture", among the Note Issuers, the
Assignor and The Chase Manhattan Bank ("Chase"), as trustee (the "Senior
Notes Trustee"), (b) the US$203,500,000 (aggregate principal amount at
maturity) 12 1/4 Senior Subordinated Mortgage Notes Due 2008 (the "Senior
Subordinated Notes" and together with the Senior Notes, the "Notes"),
which will be issued pursuant to an indenture dated as of 1 March 1998
(the "Senior
Subordinated Note Indenture", and together with the Senior Note Indenture,
the "Indentures") among the Note Issuers and Chase, as trustee (the
"Senior Subordinated Notes Trustee" and together with the Senior Notes
Trustee, the "Trustees"), with warrants to purchase 74,476,809 (Seventy
Four Million Four Hundred Seventy Six Thousand Eight Hundred and Nine)
ordinary shares of the Assignor, and (c) a private placement consisting of
US$53,133,016 (aggregate principal amount at maturity) of 12 3/4%
Subordinated Second Mortgage Debentures Due 2009 (the "Debentures") which
will be issued pursuant to an indenture dated as of 1 March 1998 (the
"Debenture Indenture") among the Note Issuers, the Assignor and Chase, as
trustee (the "Debenture Trustee") and 64,417,180 ordinary shares of the
Assignor;
C. The Assignor has entered into an amendment to the CFA (the "CFA
Amendment") with the Thai Lenders dated 12 March 1998 for the amendment of
certain terms and provisions to facilitate the Assignor's additional
financing (the CFA and the CFA Amendment, collectively, the "Bank Credit
Facility"), including but not limited to, an agreement the Assignor
entered into with the Thai Lenders, the Trustees and the Debenture Trustee
dated 12 March 1998 to set forth arrangements for the Thai Lenders and
holders of the Notes and the Debentures to share certain collateral (the
"Security Sharing Agreement").
D. Pursuant to the terms of the Security Sharing Agreement, the Assignor, the
Thai Facility Agent, the Trustees, the Debenture Trustee and the
Collateral Agent agree to enter into this Agreement as security for the
Obligations (as defined hereunder).
IT IS AGREED as follows:
1. DEFINITIONS
1.1. Except as otherwise provided herein, words and expressions in this
Agreement shall have the same respective meanings as described in the Bank
Credit Facility, the Indentures, the Debenture Indenture and Security
Sharing Agreement:
"Additional Bonds" has the meaning ascribed to it in Clause 3.3;
"Assignment of Additional Bonds" means an assignment agreement substantially in
the form of this Agreement in relation to any Additional Bond;
"Bonds" means any refund bonds, advance payment bonds, performance bonds,
retention bonds or other bond or like obligation issued in favor of the Assignor
the details of which are set out in Exhibit 2 and all Additional Bonds; and
"Obligations" means all present and future obligations and liabilities of the
Assignor under the Bank Credit Facility, the Notes, the Indentures, the
Debentures, the Debenture Indenture and the Security Sharing Agreement.
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1.2. Any reference in this Agreement to:
(i) any agreement or document shall be read and construed as a reference
to such agreement or document as the same may have been, or may from
time to time be, amended, varied, novated or supplemented; and
(ii) any party shall be construed so as to include its respective
successors, permitted assigns and transferees in accordance with its
respective interests;
1.3. Words denominating the singular include the plural and vice versa.
1.4. Section headings are for reference only.
2. ASSIGNMENT
2.1. To secure the due and punctual payment and performance by the Assignor of
the Obligations, the Assignor hereby assigns and transfers to the
Collateral Agent for the benefit of the Thai Lenders and the Trustees and
the holders of the Notes and the Debenture Trustee and the Debenture
holders (as a second priority lien), all of its rights, title and interest
in and to be derived from all of the Bonds and the Collateral Agent hereby
accept all of such rights, title and interest.
2.2. Notwithstanding the assignment contained in Clause 2.1, the Assignor shall
at all times:
(a) remain liable to perform all of its Obligations under the Bank
Credit Facility, the Notes, Indentures, the Debentures and the
Debenture Indenture; and
(b) remain liable to perform all of its obligations under and in
relation to the Bonds,
and nothing herein contained shall constitute or be deemed to constitute a
novation or settlement of any obligations (including, without limitation,
the Obligations) or indebtedness, nor shall it be construed as an
assumption or acceptance by the Thai Lenders, the Trustees or, as the case
may be, the Debenture Trustee (as a second priority lien), of any
obligation of the Assignor under the Bonds.
3. PERFECTION OF ASSIGNMENT
3.1. Immediately upon the execution of this Agreement, the Assignor shall give
notice to the issuer of each Bond substantially in the form set out in
Part A of Exhibit 3 and shall use reasonable efforts to procure that as
soon as practicable but no later than 30 days of the date hereof each
issuer of a Bond consents to the assignment and acknowledges receipt of
notice to the Collateral Agent in the form set out in Part B of Exhibit 3,
or in such other form that may be acceptable to the Collateral Agent.
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3.2. Immediately upon the execution of this Agreement, the Assignor shall
submit to the Collateral Agent the original of each Bond listed herein for
its retention for the benefit of the Thai Lenders, the Trustees, the
holders of the Notes or, as the case may be, the Debenture Trustee and the
holders of the Debentures.
3.3. Immediately upon the issue in favor of the Assignor of any refund bond,
advance payment bond, performance bond, retention bond or other bond or
like obligation issued in favor of the Assignor following the date hereof
in respect of the Assignor's steel mill which replaces a Bond (each, an
"Additional Bond") the Assignor irrevocably and unconditionally undertakes
to:
(a) notify the Collateral Agent that the Additional Bond has been issued
and deliver to the Collateral Agent such number of certified copies
of the Additional Bond as the Collateral Agent may reasonably
request;
(b) if requested by the Collateral Agent:
(i) enter into with the Thai Lenders, the Trustees, the Debenture
Trustee and the Collateral Agent an Assignment of Additional
Bond in respect of the Additional Bond, notify the relevant
issuer of Additional Bond of the same and of the agreements
contained in Clause 2.1 thereof, and use reasonable efforts to
procure that as soon as practicable such issuer of Additional
Bond acknowledges the same and consents to the assignment
contained therein in the form referred to in Clause 3.1 or
such other form as may be acceptable to the Collateral Agent;
and
(ii) submit to the Collateral Agent the original Additional Bond.
3.4. The Assignor shall comply with the terms set out in each of the notices
given pursuant to this Clause 3 and shall not take or omit to take any
action the taking or omission of which might otherwise result in the
material alteration or impairment of any of its obligations or the rights
of the Thai Lenders, the Trustees, the Debenture Trustee, the holders of
the Notes, the holders of the Debentures or the Collateral Agent under or
pursuant to this Agreement.
3.5. Upon the occurrence of any event or circumstance whereby (but for this
Agreement) the Assignor would be entitled to make any claim under any Bond
in respect of the rights, title and interests assigned pursuant to this
Agreement, the Assignor shall immediately notify the Collateral Agent in
writing of the details thereof and comply with the instructions of the
Collateral Agent with regard to such claim. The Collateral Agent shall, if
notified by the Assignor at any time prior to the issue of a Notice of
Actionable Default, cooperate with the Assignor to make such claim before
the expiry date of such Bond.
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3.6. As long as no Notice of Actionable Default has been delivered pursuant to
the Security Sharing Agreement, the Collateral Agent may:
(a) where a Bond or Additional Bond is required to be delivered to the
issuer for amendment or replacement; or
(b) where the conditions of return specified in a relevant agreement
pursuant to which the Bond is issued have been fully satisfied,
upon a written request from the Assignor (which shall certify that all
conditions to such return set forth herein have been complied with),
return the Bond to the Assignor within 7 days, provided that, in the case
of (a) above, the Collateral Agent is fully satisfied with the
arrangements put in place by the Assignor for the return of the amended or
replaced Bond to the Collateral Agent. The Assignor undertakes to return
any such amended or replaced Bond to the Collateral Agent on the same day
as such is received by it from the issuer of the Bond.
4. ENFORCEMENT
In accordance with the Security Sharing Agreement, at any time following
the receipt of a Notice of Actionable Default by the Collateral Agent and
the compliance with the provision of Section 4 of the Security Sharing
Agreement (including, without limitation, Section 4.2 (b) thereof), the
Collateral Agent may to the extent permitted by the relevant Bond:
(a) exercise fully any rights assigned to or acquired by it pursuant to
this Agreement in all respects as though originally named as the
Assignor in the relevant Bonds; and
(b) otherwise put into force and effect all rights, powers and remedies
available to it by law or otherwise as transferee of all or part of
the Assignor's rights, title and interest in and obligations under
each Bond, which are transferred pursuant to this Agreement.
5. CONTINUING SECURITY
5.1. This Agreement and the assignment created by or pursuant hereto shall be
in addition to, independent of and without prejudice to, and shall not be
in substitution for, any other rights, security, guarantee, indemnity or
suretyship now held or which may hereafter be held by the Thai Lenders,
the Trustees, or, as the case may be, the Debenture Trustee, the Debenture
holders (as a second priority lien), for the due payment and performance
by the Assignor of the Obligations.
5.2. This Agreement and the assignment is a continuing security and shall
remain in full force and effect notwithstanding the liquidation,
bankruptcy or other incapacity of the Assignor or any amalgamation or
reconstruction of the Assignor or any change in the constitution thereof
or any settlement of account, intervening payment or the extinction of any
or all
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indebtedness by whatever reason (other than by full performance and
discharge of the Obligations) or other matter or thing whatever.
5.3. If after the date of this Agreement:
(a) any settlement or discharge of any or all of the Obligations of the
Assignor is nullified for any reason whatsoever; and/or
(b) an order or judgment is made against the Thai Lenders, the Trustees,
the holders of the Notes or, as the case may be, the Debenture
Trustee or the Debenture holders under Section 237 of the Civil and
Commercial Code of Thailand (or any modification or re-enactment
thereof) or under any of Sections 113, 114 and 115 of the Bankruptcy
Act of Thailand (or any modification or re-enactment thereof)
directing the Thai Lenders, the Trustees, the holders of the Notes
or, as the case may be, the Debenture Trustee or the Debenture
holders, to pay any sum received or held by it from the Assignor or
any other person to settle all or part of the debt of the Assignor
to an official receiver, a liquidator or a creditor of the Assignor,
then the returned monies, losses, damages, costs and expenses of the Thai
Lenders, the Trustees, the holders of the Notes or, as the case may be,
the Debenture Trustee or the Debenture holders arising as a result of such
nullified settlement or discharge, and/or (as the case may be) the sum
paid by it pursuant to such order or judgement shall be recoverable from
the Assignor on demand.
6. FURTHER ASSURANCE
6.1. The Assignor shall, whenever reasonably requested by the Collateral Agent
and at the cost and expense of the Assignor, promptly sign, seal, execute
and deliver such deeds, instruments, notices and documents, (including,
further legal or other transfers or assignments) and do such acts and
things as may be reasonably required by the Collateral Agent for the
purpose of maintaining, perfecting, protecting, defending, enforcing or
securing the obligations of the Assignor under this Agreement and the
encumbrances arising under or constituted by or pursuant to this Agreement
(or purported to be created by or constituted by or pursuant to this
Agreement) or for facilitating the exercise or, as the case may be,
realization thereof and the exercise of all other powers, authorities and
discretion vested in the Collateral Agent.
6.2. The Collateral Agent shall, without prejudice to other rights, powers and
privileges under this Agreement, be entitled (but shall be under no
obligation), at any time and as often as it may reasonably consider to be
necessary, to take any such action and/or demand additional documents and
instruments from the other party (in which case the Assignor undertakes to
use its best endeavors to procure such documents or instruments from such
person) for the purpose of protecting the rights constituted by this
Agreement.
6.3. The Assignor hereby agrees to indemnify the Thai Lenders, the Thai
Facility Agent, the Trustees, the Debenture Trustee and the Collateral
Agent on demand against any and all
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costs, losses, expenses or liabilities incurred by or imposed on the Thai
Facility Agent, the Thai Lenders, the Trustees, the Debenture Trustee, or
the Collateral Agent in connection with actions taken concerning the
perfection and/or protection of the rights and/or security interest
referred to in this Clause 6.
7. FILINGS, RECORDS, INSPECTION
Except as otherwise permitted hereunder, the Assignor shall not file or
suffer to be on file, or authorize or permit to be filed or to be on file,
in any jurisdiction, any other encumbrance with respect to any Bonds in
which the Collateral Agent is not named as the sole first secured party
for the benefit of the Thai Lenders and the Trustees and the sole second
secured party for the benefit of the Debenture Trustee. The Assignor shall
permit representatives of the Collateral Agent upon reasonable notice, at
any time during normal business hours to inspect and make abstracts from
its books and records pertaining to the Bonds.
8. REMEDIES AND WAIVERS
8.1. Any receipt, release or discharge of the assignment provided by, or of any
liability arising under, the Bonds may be given by the Collateral Agent
alone and shall not release or discharge the Assignor from any liability
for the same or any other moneys which may exist independently of this
Agreement. Where such receipt, release or discharge relates only to part
of the Bonds, such receipt, release or discharge shall not prejudice or
affect the assignment hereby created in relation to the remainder of the
Bonds.
8.2. The Collateral Agent may in its or their discretion grant time or other
indulgence, or make any other arrangement variation or release, with
the Assignor or any other person (whether or not party hereto and
whether or not jointly liable with the Assignor) in respect of all the
obligations or of any other security therefor or guarantee in respect
thereof without prejudice either to the assignment constituted by or
pursuant to this Agreement or to the liability of the Assignor for the
Obligations.
8.3. The rights, powers and remedies provided in this Agreement are cumulative
and are not, nor are they to be construed as, exclusive of any rights,
powers and remedies provided by law.
8.4. No failure on the part of the Collateral Agent to exercise, or delay on
its or their part in exercising any of the rights, powers and remedies
provided for by this Agreement or by law shall operate as a waiver
thereof, nor shall any single or partial waiver of any such rights, powers
or remedies preclude any further or other exercise of such rights, power
or remedies or the exercise of any other of such rights, powers or
remedies.
9. SUCCESSORS AND ASSIGNS
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This Agreement shall be binding on and shall inure to the benefit of the
parties hereto and their respective successors, assignees and transferees,
provided that the Assignor may not assign or transfer all or any part of
its rights or obligations under this Agreement.
10. RELEASE AND REASSIGNMENT
Immediately after the Assignor has finally paid and satisfied the
Obligations in full to the Thai Lenders, the Trustees and the Debenture
Trustee, the Collateral Agent shall, at the request and cost of the
Assignor, promptly reassign, without warranty, to the Assignor the rights,
title and interest assigned to it under this Agreement or such part of it
as then remains assigned in favor of the Thai Lenders, the Trustees and
the Debenture Trustee and/or release the encumbrances created pursuant
hereto, provided that any release, settlement, discharge or termination of
this Agreement and/or any such reassignment shall, unless otherwise agreed
in writing by the Thai Lenders, the Trustees, or, as the case may be, the
Debenture Trustee (in connection with its second priority lien) be upon
the express condition that such release, settlement, discharge,
termination and/or reassignment shall become void and of no effect and
Clause 5.3 shall apply if any security or payment on the faith of which
such release, settlement, discharge, termination and/or reassignment is
given or made shall at any time thereafter be nullified or subject to an
order or judgement described in Clause 5.3.
11. SEVERABILITY
If at any time any one or more of the provisions of this Agreement becomes
invalid, illegal or unenforceable in any respect under any law, the
validity, legality and enforceability of the remaining provisions of this
Agreement shall not in any way be affected or impaired thereby.
12. NOTICES
Any notice or communication under or in connection with this Agreement
shall be given in accordance with Clause 12 of the Security Sharing
Agreement and the provisions of such agreement shall apply hereto mutatis
mutandis.
13. LAW
This Agreement shall be governed by and construed in accordance with the
laws of the Kingdom of Thailand.
14. AMENDMENTS
The terms of this Attachment may be waived, altered or amended only by an
instrument in writing duly executed by the Assignor and the Collateral
Agent in accordance with Section 17 of the Security Sharing Agreement.
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed.
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
By: /s/ Sawasdi Horrungruang By: /s/ Xxxxxx Xxxxxxx
-------------------------------- -----------------------------
Title: Chairman Title:
THE INDUSTRIAL FINANCE CORPORATION OF THAILAND
as Facility Agent for the Thai Lenders
By: /s/ [ILLEGIBLE]
-------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
as Trustees
By: /s/ [ILLEGIBLE]
-------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
as Collateral Agent
By: /s/ [ILLEGIBLE]
-------------------------------
Name:
Title:
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EXHIBIT 1
The Thai Lenders
1. The Industrial Finance Corporation of Thailand
2. Thai Farmers Bank Public Company Limited
3. Siam City Bank Public Company Limited
4. The Government Savings Bank
5. First Bangkok City Bank Public Company Limited
6. Nakornthon Bank Public Company Limited
7. SCF Finance and Securities Public Company Limited
8. Siam City Credit Finance and Securities Public Company Limited
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EXHIBIT 2
Details of Bonds
1. Letter of Guarantee No. 40-42-0098-4 dated 3 September 1997 issued by Thai
Farmers Bank Public Company Limited pursuant to the Contract No.00-000-0000
-4807 dated 8 April 1996 between Assignor and EIMCO Process Equipment
Company
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EXHIBIT 3
Part A
Notice of Assignment
Date: 12 March 1998
To: Thai Farmers Bank Public Company Limited
Xxx Xxxx Xxxxxxx Xxxx
Xxxxxxxxx Xxxx
Xxxxxxx 00000
Re: Letter of Guarantee No. 40-42-0098-4 dated 3 September 1997 issued by Thai
Farmers Bank Public Company Limited pursuant to the Contract No.
00-000-0000-0000 dated 8 April 1996 between the Assignor and EIMCO Process
Equipment Company (the "Bonds").
Dear Sirs:
We hereby give you notice that pursuant to the Assignment of Bonds made between
Nakornthai Strip Mill Public Company (the "Assignor"), the Thai Lenders, the
Trustees, the Debenture Trustee and the Collateral Agent (as defined therein)
dated 12 March 1998 (the "Assignment"), a copy of which is attached, the Company
assigned on the date of the Assignment to the Collateral Agent for the benefit
of the Thai Lenders and the holders of the Notes and the holders of the
Debentures all of its rights, title and interest in the Bonds. Words and
expressions defined or referred to in the Assignment shall, unless the context
requires otherwise, have the same meanings when used herein.
The Assignment shall become effective and binding upon receipt of this Notice,
whereupon, the Collateral Agent shall acquire all rights, title and interest in
the Bonds identical to those of the Assignor.
This Notice shall not be revocable without the Collateral Agent's prior consent.
This Notice is governed by and construed in accordance with the laws of
Thailand.
Please acknowledge receipt of this Notice and confirm your agreement to the
Assignment in the form of acknowledgement attached hereto (the "Acknowledgment")
by signing and returning one copy of the Acknowledgement to the Collateral Agent
at The Chase Manhattan Bank, Xxxxxxxx Xxxxxxxx, 00 Xxxxx Xxxxxxx Xxxx, Xxxxxxx
00000, and another copy to the Assignor.
Yours faithfully,
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
By:
--------------------------------
Name:
Title:
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We confirm our agreement with foregoing.
THE CHASE MANHATTAN BANK
As Collateral Agent, and for and on behalf of
the Thai Lenders, the Trustees and the Debenture Trustee
By:
--------------------------------
Name:
Title:
Attachment: Acknowledgement of the Issuer of the Bonds
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Part B
Acknowledgment of Assignment
To: THE CHASE MANHATTAN BANK
00 Xxxxx Xxxxxxx Xxxx
Xxxxx, Xxxxxxx
Xxxxxxx 00000
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
Xx. 0, XX Xxxxx, 00xx Xxxxx,
Xxxxxx Xxxxxxxxx, Xxxx Suanluang,
Bangkok, Thailand
We hereby acknowledge receipt of a notice of assignment of which this is a copy
and consent and agree, for ourselves and our successors and assigns, to the
terms thereof and of the Assignment. Words and expressions defined or referred
to in the Assignment shall, unless the context requires otherwise, have the same
meanings when used herein. We now undertake and confirm to you that:
(i) we agree to the Assignment and will give to the Collateral Agent notice of
any breach of any agreement governing the Bonds by the Assignor as soon as
we become aware of it;
(ii) we do not have, and will not make or exercise, any claims or demands, any
rights of counterclaim, rights of set-off or any other rights against the
Assignor in respect of the Bonds;
(iii) we will pay all amounts payable by us in respect of the Bonds to such
person or account as the Collateral Agent may nominate from time to time;
(iv) we have not received any other notice of assignment nor consented to any
other assignment of rights to the Bonds;
(v) we agree to the assignment of all rights of the Assignor to the Collateral
Agent for the benefit of the Thai Lenders, the Trustee and the Debenture
Trustee pursuant to the Assignment and agree to sign such documents as may
be reasonably requested to record the said assignment;
(vi) the Thai Lenders, the Trustees, the Debenture Trustee and the Collateral
Agent are not liable to perform any of the obligations assumed by the
Assignor under such Bonds nor liable for the consequences of
non-performance;
(vii) we agree to abide by all the terms and conditions of the Assignment and to
act accordingly upon our receipt of a written notice and/or instruction
from the Collateral Agent or any successor of the Collateral Agent;
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(viii) this Acknowledgment is governed by and construed in accordance with the
laws of Thailand.
Yours faithfully,
Thai Farmers Bank Public Company Limited
By:
----------------------------------------
Name:
Title:
Date:
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