EXHIBIT 2.18
ASSIGNMENT AND ASSUMPTION AGREEMENT AND
THIRD AMENDMENT TO NOTE PURCHASE AGREEMENT
This Assignment and Assumption Agreement and Third Amendment to Note
Purchase Agreement (this "Agreement") is made and entered into as of this 18th
day of November, 2002, by and among XXXXX XXXXXX U.S. FUNDING, INC., a Nevada
corporation ("Assignor"), XXXXX XXXXXX INTERNATIONAL FINANCE B.V., a company
incorporated under the laws of the Netherlands with its corporate seat in
Amsterdam, the Netherlands ("Assignee"), XXXXX XXXXXX INDUSTRIES N.V., a company
incorporated under the laws of the Netherlands with its corporate seat in
Amsterdam, the Netherlands (the "Parent"), XXXXX XXXXXX N.V., a company
incorporated under the laws of the Netherlands with its corporate seat in
Amsterdam, the Netherlands ("Xxxxx Xxxxxx N.V."), and the holders of notes
listed on the signature pages hereof under the heading "Noteholders" (each a
"Noteholder" and, collectively, the "Noteholders") with reference to the
following facts. Capitalized terms used herein which are not otherwise defined
shall have the meaning ascribed to them in the Purchase Agreement (defined
below).
A. Assignor presently has obligations under Guaranteed Senior
Notes (the "Notes") in the aggregate principal amount of $225,000,000 issued to
the purchasers under those certain Note Purchase Agreements with Assignor, as
Issuer, and Xxxxx Xxxxxx N.V., as Guarantor, each dated as of November 5, 1998,
as amended by that certain Assignment and Assumption Agreement and First
Amendment to Note Purchase Agreement, dated as of January 24, 2000, and that
certain Second Amendment to Note Purchase Agreement, dated as of October 22,
2001 (collectively, the "Purchase Agreement").
B. Assignor hereby desires to assign and Assignee hereby desires
to assume Assignor's obligations under the Notes and the Purchase Agreement.
C. Xxxxx Xxxxxx N.V. hereby desires to assign and Parent hereby
desires to assume Xxxxx Xxxxxx N.V.'s obligations under the Notes and the
Purchase Agreement.
D. Assignor and Assignee wish to have the Assignee, Xxxxx Xxxxxx
Aust. Investco Pty. Limited and Xxxxx Xxxxxx Australia Finance Pty. Limited be
released as guarantors of the Notes, and to make certain amendments to the
Purchase Agreement.
E. This Agreement is required under Section 24.8(A)(1)(ii) of the
Purchase Agreement as a condition precedent to the assignment and assumption of
Assignor's obligations under the Purchase Agreement and under Section 19 of the
Purchase Agreement as a form of written consent to the amendment of certain
provisions of the Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, Assignor, Assignee, Xxxxx Xxxxxx N.V., Parent and
the undersigned Noteholders agree as follows:
1. WAIVER OF NOTICE. The 30-day notice requirement set forth in
Section 24.8 (A)(1)(i) of the Purchase Agreement is waived for purposes of the
assumption described in
Section 2 below. The effective date of this Agreement shall be the date of
satisfaction of the conditions set forth in Section 24 below (the "Effective
Date").
2. ASSUMPTION OF OBLIGATIONS BY ASSIGNEE. As of the Effective
Date, pursuant to Section 24.8 of the Purchase Agreement: (a) Assignor
irrevocably and unconditionally assigns and Assignee irrevocably and
unconditionally assumes and agrees to pay and perform the obligations of the
Assignor for the due and punctual payment of the principal of and Make-Whole
Amount (if any) and interest on the Notes and the performance of each and every
other covenant and obligation of the Issuer under the Purchase Agreement and the
Notes, whether such obligations are incurred before, on or after the Effective
Date; (b) Assignor shall no longer be deemed to be the Issuer (or an Obligor)
under the Purchase Agreement and the Notes and shall be released from all of its
obligations thereunder; and (c) Assignee shall be deemed to be the Issuer (and
an Obligor) under the Purchase Agreement and the Notes and shall enjoy all of
the rights and benefits, and shall perform all of the obligations, of the Issuer
(and an Obligor) under the Purchase Agreement and the Notes. At any time on or
after the Effective Time, any Noteholder may tender to the Assignee its Note in
exchange for a substitute note payable by the Assignee, but the foregoing
assumption by the Assignee of the Purchase Agreement and the Notes shall be
fully effective regardless of whether any such tender and exchange occurs.
3. ASSUMPTION OF OBLIGATIONS BY PARENT. As of the Effective Date:
(a) Xxxxx Xxxxxx N.V. irrevocably and unconditionally assigns and Parent
irrevocably and unconditionally assumes and agrees to pay and perform the
obligations of Xxxxx Xxxxxx N.V. as a guarantor of the due and punctual payment
of the principal of and Make-Whole Amount (if any) and interest on the Notes and
the performance of each and every other covenant and obligation of the Guarantor
under the Purchase Agreement and the Notes, whether such obligations are
incurred before, on or after the Effective Date; (b) Xxxxx Xxxxxx N.V. shall no
longer be deemed to be the Guarantor (or an Obligor) under the Purchase
Agreement and shall be released from all of its obligations thereunder; and (c)
Parent shall be deemed to be the Guarantor (and an Obligor) under the Purchase
Agreement and shall enjoy all of the rights and benefits, and shall perform all
of the obligations, of the Guarantor (and an Obligor) under the Purchase
Agreement.
4. WAIVER. The holders of the Notes hereby waive compliance by
the Guarantor and its Subsidiaries with Section 10.2(v)(1) of the Purchase
Agreement for up to $345 million in proceeds resulting from the sale by the
Guarantor of its U.S.-based gypsum operations to BPB plc (the "Gypsum Sale"),
for up to $50 million of proceeds resulting from the anticipated sale by the
Guarantor of its gypsum mine located in Las Vegas, Nevada (the "Mine Sale") and
for up to $5 million in proceeds resulting from the anticipated sale by the
Guarantor of its Xxxxxx Building Systems (the "Xxxxxx Sale"), solely to the
extent any non-compliance with Section 10.2(v)(1) arises out of and is directly
attributable to the Gypsum Sale, the Mine Sale or the Xxxxxx Sale; provided,
however, that this waiver shall not be effective as to any sale, transfer or
other disposition of properties or assets by the Guarantor or any Subsidiary
(each, an "Additional Sale") occurring after the Gypsum Sale (other than the
Mine Sale and the Xxxxxx Sale), and the Gypsum Sale, the Mine Sale and the
Xxxxxx Sale shall be taken into account for purposes of determining whether any
Additional Sale is permitted under Section 10.2(v)(1).
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5. AMENDMENT TO SECTION 7.2.
(a) Section 7.2 of the Purchase Agreement shall be amended to
insert the following paragraph immediately at the end of such Section 7.2:
"If the aggregate amount of Deconsolidated Entities Payments
during any fiscal year exceeds $1,000,000, each set of financial
statements delivered to a holder of Notes pursuant to Section 7.1(b)
hereof with respect to such fiscal year shall also be accompanied by a
certificate of a Senior Financial Officer setting forth (i) for any
payment or contribution in excess of $1,000,000, the amount of such
payments and contributions and a summary description of the matters
relating thereto, and (ii) the aggregate amount of any other payments
or contributions that are in excess of $50,000."
(b) Nothing in this Section 5 is, or shall be construed to be, an
admission of any liability or obligation of any kind to, or in respect of, the
Deconsolidated Entities, except as disclosed by the Guarantor in its financial
statements filed with the Securities and Exchange Commission.
6. AMENDMENT TO SECTION 9.8. Section 9.8 of the Purchase
Agreement shall be completely replaced by a new Section 9.8, which shall read in
full as follows:
"9.8. OWNERSHIP OF ISSUER AND GUARANTOR.
Subject only to the provisions of Section 10.2(i), the
Guarantor will at all times maintain the Issuer as a Wholly-Owned
Subsidiary of the Guarantor, and the capital stock of, and any other
ownership interests in, the Issuer will at all times remain free of any
Lien."
7. AMENDMENT TO SECTION 10.3. Section 10.3 of the Purchase
Agreement shall be amended to delete existing subsection (f) and to replace it
with a new subsection (f), which shall read in full as follows:
"(f) Liens on property or assets of the Guarantor or any
of its Subsidiaries securing Debt owing to the Guarantor or to any of
its Wholly-Owned Subsidiaries;"
8. AMENDMENT TO SECTION 10.4. Section 10.4 of the Purchase
Agreement shall be completely replaced by a new Section 10.4, which shall read
in full as follows:
"10.4. FUNDED DEBT.
The Guarantor will not, and will cause its Subsidiaries to
not, at any time permit the ratio of Consolidated Funded Debt to
Consolidated Funded Capitalization to exceed 50%."
9. AMENDMENT TO SECTION 10.6.
(a) Clause (a) of Section 10.6 of the Purchase Agreement shall be
amended to insert "and" at the end of such clause.
(b) Clause (b) of Section 10.6 of the Purchase Agreement shall be
completely replaced by a new clause (b), which shall read in full as follows:
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"(b) the aggregate amount of all Restricted Payments made
subsequent to the date hereof would not exceed the sum of (x)
$25,000,000, (y) the Applicable Percentage of Adjusted Consolidated Net
Income (less 100% if Adjusted Consolidated Net Income is a negative
number) on a cumulative basis for the period from the date hereof to
the date of such Restricted Payment and (z) the Net Proceeds of Capital
Stock received by the Guarantor for the period from the date hereof to
the date of such Restricted Payment."
(c) Section 10.6 of the Purchase Agreement shall be amended to
delete existing clause (c) in its entirety.
(d) Nothing in this Section 9 is, or shall be construed to be, an
admission of any liability or obligation of any kind to, or in respect of, the
Deconsolidated Entities, except as disclosed by the Guarantor in its financial
statements filed with the Securities and Exchange Commission.
10. ADDITION OF SECTION 10.10.
(a) A new Section 10.10 is hereby added to the Purchase Agreement
as follows:
"10.10 THE FOUNDATION.
The Guarantor and its Subsidiaries will not, directly or
indirectly, make Deconsolidated Entities Payments in any calendar year
in an aggregate amount in excess of $20,000,000."
(b) Nothing in this Section 10 is, or shall be construed to be, an
admission of any liability or obligation of any kind to, or in respect of, the
Deconsolidated Entities, except as disclosed by the Guarantor in its financial
statements filed with the Securities and Exchange Commission.
11. AMENDMENT TO SECTION 13. Section 13 of the Purchase Agreement
shall be amended to (i) delete "; or" at the end of subsection (k) and to insert
"." in replacement thereof and (ii) delete existing subsection (l) in its
entirety.
12. AMENDMENT TO SECTION 15.1. The first sentence of Section 15.1
of the Purchase Agreement shall be amended to read in full as follows:
The Issuer shall keep at its executive office in the
Netherlands and its principal executive office in the United States a
register for the registration and registration of transfers of Notes.
As of the date hereof such offices are located, respectively, as
follows:
"4th Floor, Atrium
Xxxx 00-00
Xxxxxxxxxxxxxx 0000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
and
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00000 Xx Xxxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000"
13. AMENDMENT TO SECTION 17.1. Section 17.1 of the Purchase
Agreement shall be amended to insert the following sentence immediately at the
end of such Section 17.1: "The Obligors jointly and severally will pay, and will
save you and each other holder of a Note harmless from, all fees and charges
payable to Bartier Perry (or such other firm as may be designated by the
Required Holders in replacement of Bartier Perry) for provision of copies of
publicly available documents in respect of the Deconsolidated Entities, as
contemplated by correspondence dated October 28, 2002 from Bartier Perrier to
the Guarantor."
14. SCHEDULE B--DELETED TERMS. Schedule B of the Purchase
Agreement shall be amended to delete the following definitions in their
entirety: (i) Subsidiary Guarantee, (ii) First Subsidiary Guarantor, (iii)
Second Subsidiary Guarantor, (iv) Third Subsidiary Guarantor and (v) Permitted
Australian Credit Facilities.
15. OTHER AMENDMENTS TO SCHEDULE B. Schedule B of the Purchase
Agreement is amended to add new definitions of the terms set forth below, which
shall read in full as follows (and shall replace the definitions of any of the
same terms in the Purchase Agreement):
"ADJUSTED CONSOLIDATED NET INCOME" of the Guarantor
for any period means the Consolidated Net Income of the
Guarantor for such period, adjusted to eliminate the effect of
any prior Deconsolidated Entities Payments.
"BANK CREDIT AGREEMENTS" means (i) the four separate
Revolving Loan Agreements, three of which are dated on or
about November 3, 1998 and one of which (BankOne, N.A.) is
dated on or about April 20, 2000 (together with any related
agreements and instruments, the "Australian Bank Loan
Agreements"), between the Issuer as successor to Xxxxx Xxxxxx
Australia Finance Pty. Limited (as borrower), Xxxxx Xxxxxx
Industries N.V. (as guarantor) and, respectively, Australia
and New Zealand Banking Group, BNP Paribas, Westdeutsche
Landesbank Girozentrale and BankOne N.A. (the "Bank Lenders")
under which the Issuer may borrow up to an aggregate of
A$200,000,000 (A$ referring to Australian dollars) as such
agreements may be amended, modified, refinanced or replaced
with the same or different lenders, and (ii) the six separate
Standby Loan Agreements, two of which are dated on or about
November 4, 1998, one of which (Westdeutsche Landesbank
Girozentrale) is dated on or about January 24, 2000, two of
which (Bank One N.A. and ING Bank NV (Sydney Branch) are dated
on or about December 10, 1998 and one of which (Xxxxx Fargo
HSBC Trade Bank, N.A.) is dated on or about July 20, 2000
(together with any related agreements and instruments, the
"Standby Facilities"), between the Issuer as successor to
Xxxxx Xxxxxx Australia Finance Pty. Limited (as borrower),
Xxxxx Xxxxxx Industries N.V. (as guarantor) and, respectively,
each of the Bank Lenders, ING Bank NV (Sydney Branch)and Xxxxx
Fargo HSBC Trade Bank, N.A., under which the Issuer may borrow
up to an aggregate of $117,500,000 (or the equivalent in
Australian currency) as such agreements may be amended,
modified, refinanced or replaced with the same or different
lenders.
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"DECONSOLIDATED ENTITIES" means Amaca Pty Limited,
Amaba Pty Limited, Medical Research Compensation Foundation
and MRC (Investments) Pty Limited, and each of their
successors and Affiliates.
"DECONSOLIDATED ENTITIES PAYMENTS" means any
contribution, payment or other distribution (including by way
of loan or other extension of credit), directly or indirectly,
by the Guarantor or any Subsidiary (i) to the Deconsolidated
Entities, in respect of equity securities or otherwise, or
(ii) to any other party in settlement of, or in respect of a
judgment relating to, asbestos litigation against the
Deconsolidated Entities, the Guarantor or its Affiliates,
excluding in any such case any settlement payments by the
Guarantor or its Subsidiaries to the Deconsolidated Entities
in an aggregate amount not to exceed AUD$100,000,000 (an
"Excluded Payment"), which amount relates to a pre-existing
and publicly disclosed obligation of the Guarantor to the
Deconsolidated Entities. Nothing in this definition is, or
shall be construed to be, an admission of any liability or
obligation of any kind to, or in respect of, the
Deconsolidated Entities, except as disclosed by the Guarantor
in its financial statements filed with the Securities and
Exchange Commission.
"GUARANTOR" means Xxxxx Xxxxxx Industries, N.V., a
company incorporated under the laws of The Netherlands, and
its permitted successors hereunder.
"ISSUER" means Xxxxx Xxxxxx International Finance
B.V., a company incorporated under the laws of The
Netherlands, and its permitted successors hereunder.
"MATERIAL ADVERSE EFFECT" means a material adverse
effect on (a) the business, operations, affairs, financial
condition, assets or properties of the Guarantor and its
Subsidiaries taken as whole, or (b) the ability of the Issuer
or the Guarantor to perform its obligations under this
Agreement and the Notes, or (c) the validity or enforceability
of this Agreement or the Notes.
"NOTES" is defined in Section 1 and includes any
substitute notes issued under Section 2 of the Assignment and
Assumption Agreement and Third Amendment to Note Purchase
Agreement, dated as of November ____, 2002.
"PRIORITY DEBT" means (a) all Debt of the Guarantor
and the Subsidiaries secured by any Lien with respect to any
property owned by the Guarantor or any of its Subsidiaries and
(b) all unsecured Debt of Subsidiaries, except Debt owed to
the Guarantor or a Wholly-Owned Subsidiary, and Debt of the
Issuer.
"REORGANIZATION" means:
(a) the formation of Xxxxx Xxxxxx Finance B.V.
and Xxxxx Xxxxxx Aust. Investco Pty. Limited as Wholly-Owned
Subsidiaries of Xxxxx Xxxxxx N.V.;
(b) the entering into of the Purchase Agreements
providing for the transfer to Xxxxx Xxxxxx N.V. and its
Subsidiaries of JHIL's international fiber cement business,
its United States gypsum business, its Australian and New
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Zealand building systems business and its Australian windows
business (the "Transferred Businesses") as described in the
Memorandum;
(c) the consummation of the transfer of the
Transferred Businesses pursuant to and as provided for in the
Purchase Agreements:
(d) the retention by JHIL and certain of its
other Subsidiaries of certain assets and liabilities (the
"Retained Assets and Liabilities") as described in the
Memorandum (as to which Retained Assets and Liabilities JHIL
provides indemnities to Xxxxx Xxxxxx N.V. and its Subsidiaries
as set forth in the Purchase Agreements);
(e) the entering into of this Agreement and the
Other Agreements and the issuance of the Notes hereunder and
thereunder (the "Note Sale");
(f) the entering into of certain bank credit
agreements and the borrowing of up to A$200,000,000 (A$
referring to Australian currency) Revolving Loans thereunder
(the "Bank Loan"); and
(g) the application of the proceeds of the Note
Sale and the Bank Loan ultimately in payment of the amounts
and for the purposes specified in Schedule 5.14.
"RESTRICTED PAYMENT" means
(a) any Distribution in respect of the Guarantor
or any Subsidiary of the Guarantor (other than on account of
capital stock or other equity interests of a Subsidiary of the
Guarantor owned legally and beneficially by the Guarantor or
another Subsidiary of the Guarantor), including, without
limitation, any Distribution resulting in the acquisition by
the Guarantor of securities which would constitute treasury
stock,
(b) any payment, repayment, redemption,
retirement, repurchase or other acquisition, direct or
indirect, by the Guarantor or any Subsidiary of, on account
of, or in respect of, the principal of any Subordinated Debt
(or any installment thereof) prior to the regularly scheduled
maturity date thereof (as in effect on the date such
Subordinated Debt was originally incurred), and
(c) any Deconsolidated Entities Payments.
For purposes of this Agreement, the amount of any Restricted
Payment made in property shall be the greater of (x) the fair market value of
such property (as determined in good faith by the board of directors (or
equivalent governing body) of the Person making such Restricted Payment) and (y)
the net book value thereof on the books of such Person, in each case determined
as of the date on which such Restricted Payment is made.
16. RELEASE. The Noteholders hereby agree that, as of the
effective time of this Agreement, the First Subsidiary Guarantor, the Second
Subsidiary Guarantor and the Third
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Subsidiary Guarantor shall each be released and discharged from all of its
obligations and liabilities under the Subsidiary Guarantees, and the Subsidiary
Guarantees shall have no further force and effect.
17. STATUS OF PURCHASE AGREEMENT. The provisions of the Purchase
Agreement are in full force and effect and shall remain unchanged, except as
provided by this Agreement.
18. INCONSISTENCIES. In the event of any inconsistency between the
provisions of this Agreement and any provision in the Purchase Agreement, the
terms and provisions of this Agreement shall govern.
19. GOVERNING LAW. This Agreement shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the law
of the State of New York excluding choice-of-law principles of the law of such
State that would require the application of the laws of a jurisdiction other
than such State.
20. SEVERABILITY. If any paragraph, clause or provision of this
Agreement is construed or interpreted by a court of competent jurisdiction to be
void, invalid or unenforceable, such decision shall not affect the remaining
paragraphs, clauses or provisions of this Agreement.
21. BINDING ON SUCCESSORS AND ASSIGNS. This Agreement applies to,
inures to the benefit of, and binds the Assignor, the Assignee, Xxxxx Xxxxxx
N.V., Parent and the Noteholders and their respective successors and assigns.
22. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one instrument. Each counterpart may consist of a number of copies
hereof, each signed by less than all, but together signed by all, of the parties
hereto. Any party hereto may execute and deliver a counterpart of this Agreement
by delivering by facsimile transmission a signature page of this Agreement
signed by such party and such facsimile signature shall be treated in all
respects as having the same effect as an original signature.
23. REPRESENTATIONS AND WARRANTIES OF THE ISSUER AND THE
GUARANTOR. The Assignee and Parent jointly and severally represent and warrant
to the Noteholders that:
23.1 ORGANIZATION; POWER AND AUTHORITY. Each of the
Assignee and Parent is a corporation duly incorporated and validly existing
under the laws of The Netherlands, and is duly qualified as a foreign
corporation and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The
Assignee has all corporate power and authority to own or hold under lease the
properties it purports to own or hold under lease, to transact the business it
transacts and proposes to transact, to execute and deliver this Agreement, the
Notes and the Purchase Agreement (as amended by this Agreement) and to perform
the provisions thereof. Parent has all corporate power and authority to own or
hold under lease the properties it purports to own or hold under lease, to
transact the business it transacts and proposes to transact, to execute and
deliver this Agreement and to perform the provisions hereof and of the Purchase
Agreement (as amended by this Agreement).
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23.2 AUTHORIZATION, ETC. This Agreement, the Notes and the
Purchase Agreement have been duly authorized by all necessary corporate action
on the part of each of the Assignee and Parent, and this Agreement, the Notes
and the Purchase Agreement (as amended by this Agreement) each constitute a
legal, valid and binding obligation of such party enforceable against such party
in accordance with its terms, except as such enforceability may be limited by
(i) applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and (ii)
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
23.3 ORGANIZATION AND OWNERSHIP OF SHARES OF SUBSIDIARIES;
AFFILIATES
(a) Schedule 23.3 contains complete and correct
lists of Parent's Subsidiaries, showing, as to each Subsidiary, the correct name
thereof, the jurisdiction of its organization or incorporation, and the
percentage of shares of each class of its capital stock or similar equity
interests outstanding owned by Parent and each other Subsidiary.
(b) All of the outstanding shares of capital
stock or similar equity interests of each Subsidiary shown in Schedule 23.3 as
being owned by Parent and its Subsidiaries have been validly issued, are fully
paid and nonassessable and are owned by Parent or another Subsidiary free and
clear of any Lien (except as otherwise disclosed in Schedule 23.3).
(c) No Subsidiary is a party to, or otherwise
subject to any legal restriction or any agreement (other than restrictions
permitted by Section 10.8 of the Purchase Agreement and customary limitations
imposed by corporate law statutes) restricting the ability of such Subsidiary to
pay dividends out of profits or make any other similar distributions of profits
to Parent or any of its Subsidiaries that owns outstanding shares of capital
stock or similar equity interests of such Subsidiary.
23.4 COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC. The
execution, delivery and performance by the Assignee and Parent of this
Agreement, the performance by the Assignee and Parent of the Purchase Agreement
and the performance by the Assignee of the Notes will not (i) contravene, result
in any breach of, or constitute a default under, or result in the creation of
any Lien in respect of any property of the Assignee or Parent under, any
indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease,
corporate charter or by-laws, or any other agreement or instrument to which the
Assignee or Parent or any Subsidiary is bound or by which the Assignee, Parent
or any Subsidiary or any of their respective properties may be bound or
affected, (ii) conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or ruling of any court,
arbitrator or Governmental Authority applicable to the Assignee, Parent or any
Subsidiary or (iii) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Assignee, Parent or
any Subsidiary.
23.5 GOVERNMENTAL AUTHORIZATIONS, ETC. No consent,
approval or authorization of, or registration, filing or declaration with, any
Governmental Authority is required in connection with the execution, delivery or
performance by Assignee or Parent of this Agreement.
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23.6 LITIGATION. Schedule 23.6 sets forth a reasonably
detailed description of all material litigation and other proceedings involving
or affecting Parent and its Subsidiaries.
23.7 EXISTING DEBT. Except as described therein, Schedule
23.7 sets forth a complete and correct list of all outstanding Debt of the
Obligors and the Subsidiaries as of September 30, 2002, since which date there
has been no Material change in the amounts, interest rates, sinking funds,
installment payments or maturities of the Debt of the Obligors or the
Subsidiaries. Neither the Obligors nor any Subsidiary are in default and no
waiver of default is currently in effect, in the payment of any principal or
interest on any Debt of any Obligor or any such Subsidiary and no event or
condition exists with respect to any Debt of any Obligor or any Subsidiary that
would permit (or that with notice or the lapse of time, or both, would permit)
one or more Persons to cause such Debt to become due and payable before its
stated maturity or before its regularly scheduled dates of payment.
23.8 DISCLOSURE. Since September 30, 2002, there has been
no change in the financial condition, operations, business, properties or
prospects of any Obligor or any Subsidiary except changes that individually or
in the aggregate could not reasonably be expected to have a Material Adverse
Effect. There is no fact known to any Obligor that could reasonably be expected
to have a Material Adverse Effect that has not been set forth herein or in the
other documents, certificates and other writings delivered to you by or on
behalf of any Obligor specifically for use in connection with the transactions
contemplated hereby.
24. CONDITIONS TO EFFECTIVENESS. The effectiveness of this
Agreement shall be subject to the satisfaction of each of the following
conditions precedent:
24.1 EXECUTED AGREEMENT. The Assignor shall have received
one or more counterparts of this Agreement executed on behalf of each of the
Noteholders.
24.2 OPINIONS OF COUNSEL. The Noteholders shall have
received opinions of De Brauw Blackstone Westbroek N.V. (Netherlands counsel)
and Xxxxxx, Xxxx & Xxxxxxxx LLP (U.S. counsel), in customary form and subject
only to customary qualifications, addressed to each Noteholder, covering such
matters as may be reasonably required by counsel to the Noteholders.
24.3 REPRESENTATIONS AND WARRANTIES; NO DEFAULT. On the
Effective Date, after giving effect to this Agreement and the transactions
contemplated hereby:
(a) the representations and warranties contained
in Section 23 hereof and the representations and warranties contained in Section
5.8(a), 5.8(b), 5.9, 5.10, 5.11, 5.12, 5.17 and 5.18 of the Purchase Agreement
shall be true and correct on and as of the Effective Date as though made on and
as of such date; and
(b)no Default or Event of Default shall have
occurred and be continuing.
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24.4 COMPLIANCE CERTIFICATES.
(a) OFFICER'S CERTIFICATE. The Assignee shall deliver
to each Noteholder an Officer's Certificate, dated as of the Effective Date,
certifying that the condition specified in Section 24.3 of this Section have
been fulfilled.
(b) SECRETARY'S CERTIFICATE. The Assignee shall have
delivered to each Noteholder a certificate certifying as to the resolutions
attached thereto and other corporate proceedings relating to the authorization,
execution and delivery of this Agreement and the incumbency and authority of
persons executing such documents.
24.5 EVIDENCE OF CONSENT TO RECEIVE SERVICE OF PROCESS.
Each Noteholder shall have received, in form and substance reasonably
satisfactory to such Noteholder, evidence of the consent of CT Corporation
System in New York, New York to the appointment and designation provided for by
Section 24.6 of the Purchase Agreement (and the payment of all fees related
thereto).
24.6 PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings in connection with the transactions contemplated by this Agreement
and all the documents and instruments incident to such transactions shall be
satisfactory to each Noteholder and its special counsel, and such Noteholder and
its special counsel shall have received all such counterpart originals or
certified or other copies of such documents as it or they may reasonably
request.
24.7 NOTICE OF EFFECTIVENESS OF REORGANIZATION. Each
Noteholder shall have received notice that the Assignee shall be, or have
become, the borrower under the Bank Credit Agreements, that Parent shall have
become the only guarantor under the Bank Credit Agreements, and that Xxxxx
Xxxxxx N.V., the First Subsidiary Guarantor, the Second Subsidiary Guarantor and
the Third Subsidiary Guarantor shall each be released and discharged from all of
its obligations and liabilities, if any, as a guarantor under the Bank Credit
Agreements.
24.8 PREPAYMENT. The Assignor shall have prepaid at least
$60,000,000 aggregate principal amount of the Notes at a price equal to 100% of
the principal amount so prepaid plus the Make-Whole Amount determined for the
prepayment date with respect to such principal amount, which prepayment shall
have been made in accordance with the terms of Section 8 of the Purchase
Agreement, except that the Assignor shall only be required to provide to the
holders of the Notes 10 days' prior written notice of such prepayment.
24.9 PAYMENT OF AMENDMENT FEE. Each Noteholder shall have
received its pro rata share of an amendment fee in the aggregate amount of
$225,000.
25. INDEMNITY. In the event of the imposition by or for the
account of any Taxing Authority of the United States of America or any other
country or jurisdiction of any tax (whether income, capital or other), duty,
levy, impost, fee or charge against a Noteholder arising out of any of the
assignments and assumptions pursuant to Sections 2 and 3 of this Agreement (an
"Assignment Tax"), each Obligor agrees to promptly on demand indemnify such
Noteholder against any loss or liability which such Noteholder incurs in
connection with such Assignment Tax.
11
26. LEGAL FEES. The Obligors jointly and severally will pay all
costs and expenses (including reasonable attorneys' fees of Xxxxxxx Xxxx &
Xxxxxxxxx) incurred by the Noteholders in connection with this Agreement.
27. EXCLUDED PAYMENTS. If the Guarantor or any Subsidiary makes
any Excluded Payment, the Assignee shall reasonably promptly notify the holders
of the Notes of such Excluded Payment.
12
IN WITNESS WHEREOF, the Assignor, the Assignee, Xxxxx Xxxxxx N.V.,
Parent and the respective Noteholders listed on the attached signature pages
hereof have executed this Assignment and Assumption Agreement and Third
Amendment to the Note Purchase Agreement effective as of the day and year first
above written.
ASSIGNOR: XXXXX XXXXXX N.V.
XXXXX XXXXXX U.S. FUNDING, INC., XXXXX XXXXXX N.V.,
a Nevada corporation a company incorporated under the laws
of the Netherlands
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxx
--------------------------------- -------------------
Its: CFO Its: Attorney-In-Fact
ASSIGNEE: PARENT:
XXXXX XXXXXX U.S. INTERNATIONAL XXXXX XXXXXX INDUSTRIES N.V.,
FINANCE B.V., a company incorporated under the laws
a company incorporated under the laws of of the Netherlands
the Netherlands
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxx
--------------------------------- -----------------------
Its: Attorney-In-Fact Its: Attorney-In-Fact
NOTEHOLDERS: [SEE ATTACHED PAGES]
13
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND THIRD AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF NOVEMBER 18, 2002
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxxxx
Its: Vice President
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND THIRD AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF NOVEMBER 18, 2002
CONNECTICUT GENERAL LIFE INSURANCE COMPANY (CIG & CO.)
By: CIGNA Investments, Inc., its authorized agent
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Its: Managing Director
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND THIRD AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF NOVEMBER 18, 2002
CONNECTICUT GENERAL LIFE INSURANCE COMPANY ON
BEHALF OF ONE OR MORE SEPARATE ACCOUNTS (CIG & CO.)
By: CIGNA Investments, Inc., its authorized agent
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Its: Managing Director
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND THIRD AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF NOVEMBER 18, 2002
LIFE INSURANCE COMPANY OF NORTH AMERICA (CIG & CO.)
By: CIGNA Investments, Inc., its authorized agent
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Its: Managing Director
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND THIRD AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF NOVEMBER 18, 2002
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxx
Its: Director
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND THIRD AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF NOVEMBER 18, 2002
TEXAS LIFE INSURANCE COMPANY
By: Metropolitan Life Insurance Company, investment manager
By: /s/ Xxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxx
Its: Director
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND THIRD AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF NOVEMBER 18, 2002
PRINCIPAL LIFE INSURANCE COMPANY
By: PRINCIPAL GLOBAL INVESTORS, LLC,
a Delaware limited liability company and its authorized signatory
By: /s/ Xxx X. Xxxxx and /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------------------
Name: Xxx X. Xxxxx and Xxxxxxx X. Xxxxxxxxx
Its: Counsel
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND THIRD AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF NOVEMBER 18, 2002
USAA LIFE INSURANCE COMPANY (ELL & CO.)
By: /s/ Xxxx X. Xxxxx
-----------------------------
Name: Xxxx X. Xxxxx
Its: Up Insurance Portfolios
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND THIRD AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF NOVEMBER 18, 2002
THE XXXX XXXXXX LIFE INSURANCE COMPANY (XXXX & CO.)
By: /s/ Xxx X. Xxxxxx
-----------------------------
Name: Xxx X. Xxxxxx
Its: Vice President
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND THIRD AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF NOVEMBER 18, 2002
THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA (XXXX & CO.)
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Its: Managing Director
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND THIRD AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF NOVEMBER 18, 2002
BERKSHIRE LIFE INSURANCE COMPANY OF AMERICA (XXXX & CO.)
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Its: Managing Director
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND THIRD AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF NOVEMBER 18, 2002
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: Managing Director
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND THIRD AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF NOVEMBER 18, 2002
CM LIFE INSURANCE COMPANY C/O MASSACHUSETTS
MUTUAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: Managing Director
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND THIRD AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF NOVEMBER 18, 2002
AMERICAN INVESTORS LIFE INSURANCE COMPANY (HARE & CO.)
By: AmerUs Capital Management Group, Inc.,
It's authorized attorney-in-fact
By: /s/ Xxxxxx Xxxxxx
-----------------------------
Name: Xxxxxx Xxxxxx
Its: Director Private Placements
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND THIRD AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF NOVEMBER 18, 2002
OHIO NATIONAL LIFE ASSURANCE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: Senior Vice President, Investments
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND THIRD AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF NOVEMBER 18, 2002
STATE FARM LIFE INSURANCE COMPANY
By: /s/ Xxxxx Xxxxxx
-----------------------------
Name: Xxxxx Xxxxxx
Its: Investment Officer
By: /s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Its: Assistance Secretary
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND THIRD AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF NOVEMBER 18, 2002
AMERITAS LIFE INSURANCE CORP.
By: Ameritas Investment Advisors Inc., as Agent
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Its: Vice President - Fixed Income Securities
SCHEDULE 23.3
Organization and Ownership of Subsidiaries
23.3-3
SCHEDULE 23.6
Litigation
23.6-1
SCHEDULE 23.7
Existing Debt
23.7-1
SCHEDULE 23.3 -
LIST OF SUBSIDIARIES OF XXXXX XXXXXX INDUSTRIES N. V. AT 31 OCTOBER 2002
COUNTRY OF
INCORPORATION % OWNED
Xxxxx Xxxxxx Industries NV Netherlands
ABN 60 000 009 263 Pty Ltd Australia 100%
RCI Holdings Pty Ltd. Australia 100%
Xxxxx Xxxxxx NV Netherlands 100%
Xxxxx Xxxxxx Finance BV Netherlands 100%
Xxxxx Xxxxxx International Finance BV Netherlands 100%
Xxxxx Xxxxxx Europe BV Netherlands 100%
Xxxxx Xxxxxx Australia Finance Pty Ltd Australia 100%
Xxxxx Xxxxxx Philippines Inc Phillippines 100%
Xxxxx Xxxxxx International Holdings BV Netherlands 100%
Xxxxx Xxxxxx Fibrocementos Limitada Chile 100%
Xxxxx Xxxxxx Research (Holdings) Pty Ltd Australia 100%
Xxxxx Xxxxxx Research Pty Ltd Australia 100%
Xxxxx Xxxxxx Tech Pty Ltd Australia 100%
Xxxxx Xxxxxx (Holdings) Inc USA 100%
Xxxxx Xxxxxx Building Products Inc USA 100%
Xxxxx Xxxxxx NSW Investments Pty Ltd Australia 100%
Xxxxx Xxxxxx FCTA Pty Ltd Australia 100%
Xxxxx Xxxxxx US Investments Inc USA 100%
JHNC LLC USA 100%
Xxxxxxx X'Xxxxxx LLC USA 100%
Xxxxx Xxxxxx Trading Co., Inc. USA 100%
Xxxxxxx X'Xxxxxx, Inc. USA 100%
Xxxxx Xxxxxx Inc USA 100%
Xxxxx Xxxxxx Building Products Canada Inc Canada 100%
Xxxxx Xxxxxx US Funding Inc USA 100%
Xxxxx Xxxxxx US Investments Sierra Inc USA 100%
Ecanif Pty Ltd Australia 100%
Xxxxx Xxxxxx NZ Trustee Ltd New Zealand 100%
Xxxxx Xxxxxx NZ Investco Trust New Zealand 100%
Xxxxx Xxxxxx NZ Holdings Trust New Zealand 100%
Xxxxx Xxxxxx New Zealand Ltd New Zealand 100%
Xxxxx Xxxxxx Aust Holdings Pty Ltd Australia 100%
Xxxxx Xxxxxx Aust Investco Pty Ltd Australia 100%
Xxxxx Xxxxxx Aust Investco Services Pty Ltd Australia 100%
Xxxxx Xxxxxx Aust Investments No 1 Pty Ltd Australia 100%
Xxxxx Xxxxxx Australia Management Pty Ltd Australia 100%
Xxxxx Xxxxxx Australia Pty Ltd Australia 100%
Xxxxx Xxxxxx Fibre Cement Pty Ltd Australia 100%
Xxxxx Xxxxxx FC Pty Ltd Australia 100%
Xxxxx Xxxxxx Windows (Holdings) Pty Ltd Australia 100%
SCHEDULE 23.6 LEGAL PROCEEDINGS
Parent and its Subsidiaries (collectively the "Group") are involved from time to
time in various legal proceedings and administrative actions incident to the
normal conduct of the Group's business. Although it is impossible to predict the
outcome of any pending legal proceeding, management believes that such
proceedings and actions should not, individually or in the aggregate, have a
Material Adverse Effect.
SCHEDULE 23.7 - OUTSTANDING DEBT OF THE OBLIGORS AND THE SUBSIDIARIES
1. XXXXX XXXXXX US FUNDING INC.
Guaranteed Senior Notes USD 225 million
2. XXXXX XXXXXX INTERNATIONAL FINANCE B.V.
Revolving Loan Facility
COMMITTED DRAWN AMOUNT AT
LENDER AMOUNT 30 SEPTEMBER 2002
-------------------------------------------- --------------------- ----------------------
AUD USD
MILLION MILLION
--------------------- ----------------------
Australia & New Zealand Banking Group Ltd 80.0 0
Xxxxx 0, 00 Xxxxxx Xxxxx
Xxxxxx XXX 0000 Xxxxxxxxx
Bank Nationale de Paris SA 40.0 0
00 Xxxxxxxxxxx Xxxxxx
Xxxxxx XXX 0000 Xxxxxxxxx
WestLB AG (Sydney Branch) 40.0 0
Xxxxx 00, 00 Xxxxxxxx Xxxxxx
Xxxxxx XXX 0000 Xxxxxxxxx
Bank One NA 40.0 0
Xxxxx 00, 00 Xxxxxxxx Xxxxxx
Xxxxxx XXX 0000 Xxxxxxxxx
-------------------------------------------- --------------------- ----------------------
TOTAL 200.0 0
-------------------------------------------- --------------------- ----------------------
Schedule 23.7 - Page 1
3. XXXXX XXXXXX INTERNATIONAL FINANCE B.V.
364 day Standby Loan Facility
COMMITTED DRAWN AMOUNT AT
LENDER AMOUNT 30 SEPTEMBER 2002
-------------------------------------------- ------------------ ----------------------
USD USD
MILLION MILLION
------------------ ----------------------
Australia & New Zealand Banking Group Ltd 25.0 0
Xxxxx 0, 00 Xxxxxx Xxxxx
Xxxxxx XXX 0000 Xxxxxxxxx
Bank Nationale de Paris SA 15.0 0
00 Xxxxxxxxxxx Xxxxxx
Xxxxxx XXX 0000 Xxxxxxxxx
WestLB AG (Sydney Branch) 12.5 0
Xxxxx 00, 00 Xxxxxxxx Xxxxxx
Xxxxxx XXX 0000 Xxxxxxxxx
Bank One NA 30.0 0
Xxxxx 00, 00 Xxxxxxxx Xxxxxx
Xxxxxx XXX 0000 Xxxxxxxxx
ING Bank NV (Sydney Branch) 20.0 0
Xxxx 0, 000 Xxxx Xxxxxx
Xxxxxx XXX 0000 Xxxxxxxxx
Xxxxx Fargo HSBC Trade Bank NA 15.0 0
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx XX 00000 XXX
-------------------------------------------- ------------------ ----------------------
TOTAL 117.5 0
-------------------------------------------- ------------------ ----------------------
Schedule 23.7 - Page 2
4. XXXXX XXXXXX FIBROCEMENTOS LIMITADA
USD line of credit
DRAWN AMOUNT AT
LENDER COMMITTED AMOUNT 30 SEPTEMBER 2002
-------------------------------------------- ------------------ ---------------------
USD USD
MILLION MILLION
-------------------------------------------- ------------------ ---------------------
Australia & New Zealand Banking Group Ltd 7.0 6.1
Xxxxx 0, 00 Xxxxxx Xxxxx
Xxxxxx XXX 0000 Xxxxxxxxx
-------------------------------------------- ------------------ ---------------------
TOTAL 7.0 6.1
-------------------------------------------- ------------------ ---------------------
Schedule 23.7 - Page 3
