EXHIBIT 2.17
Form of Novation Agreement
▇▇▇▇▇ ▇▇▇▇▇▇ International Finance B.V.
▇▇▇▇▇ ▇▇▇▇▇▇ US Funding Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ N.V.
▇▇▇▇▇ ▇▇▇▇▇▇ Industries N.V.
And each of the following banks ("Bank"):
Australia and New Zealand Banking Group Limited
Bank One, NA
ING Bank N.V., Sydney Branch
BNP Paribas
▇▇▇▇▇ Fargo HSBC Trade Banks, National Association
WestLB AG, Sydney Branch
Guarantor Novation - Standby Loan Agreement dated November
1998
The Chifley Tower
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(C) Copyright Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 2003
Form of Novation Agreement Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definition 1
1.2 Facility Agreement definitions 2
1.3 Interpretation 2
2. NOVATION 2
2.1 Novation 2
2.2 Assumption of benefits and obligations 2
2.3 Release 2
3. AMENDMENT 2
4. CONDITION PRECEDENT 3
5. REPRESENTATIONS AND WARRANTIES 3
5.1 Representations and warranties 3
5.2 Reliance 3
6. BORROWER'S ACKNOWLEDGEMENT 3
7. EXPENSES 3
8. STAMP DUTIES 4
9. GOVERNING LAW AND JURISDICTION 4
10. COUNTERPARTS 4
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DATE 16 December 2002
PARTIES
1. ▇▇▇▇▇ ▇▇▇▇▇▇ INTERNATIONAL FINANCE B.V. incorporated in the
Netherlands, having its statutory seat at Amsterdam, The
Netherlands of Strawinskylaan 3077, 1077 ZX Amsterdam, The
Netherlands (the BORROWER);
2. ▇▇▇▇▇ ▇▇▇▇▇▇ US FUNDING INC., a Nevada corporation of ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇ ▇▇▇▇▇) ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ (JHUSF);
3. ▇▇▇▇▇ ▇▇▇▇▇▇ N.V. incorporated in the Netherlands, having its
statutory seat at Amsterdam, The Netherlands of Strawinskylaan
3077, 1077 ZX Amsterdam, The Netherlands (the PARENT);
4. ▇▇▇▇▇ ▇▇▇▇▇▇ INDUSTRIES N.V. incorporated in the Netherlands,
having its statutory seat at Amsterdam, The Netherlands of
Stawinskylaan 3077, 1077 ZX Amsterdam, The Netherlands (the
SUBSTITUTE GUARANTOR); and
5. BANK (the LENDER).
RECITALS
A The Borrower, the Parent and JHUSF as Guarantors and the
Lender are parties to a Standby Loan Agreement dated November
1998, as amended and novated on 24 December 1999 and amended,
novated and restated on 27 August 2001 (the FACILITY
AGREEMENT).
B The parties to this Agreement have agreed that:
(a) the Facility Agreement be novated again so that the
Substitute Guarantor shall be entitled to the rights
and shall perform the obligations of each Retiring
Guarantor as a Guarantor under the Facility Agreement
and that each Retiring Guarantor shall be released
and discharged from those obligations;
(b) the financial undertakings in the Facility Agreement
be amended on the terms set out in this Agreement.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITION
The following definitions apply unless the context requires otherwise.
EFFECTIVE DATE means the date the condition set out in clause 4 is
satisfied.
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RETIRING GUARANTOR means:
(a) JHUSF; or
(b) the Parent.
1.2 FACILITY AGREEMENT DEFINITIONS
Unless otherwise defined in this Agreement the terms defined in the
Facility Agreement bear the same meaning when used in this Agreement.
1.3 INTERPRETATION
Clauses 1.2 and 1.3 of the Facility Agreement apply to this Agreement
as if set out in this Agreement.
2. NOVATION
2.1 NOVATION
With effect from the Effective Date, the Substitute Guarantor shall be
substituted for each Retiring Guarantor as a Guarantor under the
Facility Agreement as if it had originally been a party to the Facility
Agreement in that capacity and all references in the Facility Agreement
to a Retiring Guarantor in its capacity as guarantor or to a Guarantor
shall be references to the Substitute Guarantor.
2.2 ASSUMPTION OF BENEFITS AND OBLIGATIONS
With effect on and from the Effective Date, the Substitute Guarantor
shall be bound by and comply with the provisions of the Facility
Agreement binding on each Retiring Guarantor as Guarantor and shall
enjoy all the rights and benefits of each Retiring Guarantor as
Guarantor under the Facility Agreement.
2.3 RELEASE
With effect on and from the Effective Date, the Lender releases each
Retiring Guarantor from all their respective obligations under the
Facility Agreement and all actions, claims or proceedings that it may
have against each Retiring Guarantor under or in respect of the
Facility Agreement relating to any act or omission of a Retiring
Guarantor on or after the Effective Date.
3. AMENDMENT
With effect from the Effective Date, the Facility Agreement shall be
amended as follows:
(a) (CLAUSE 1.2) In clause 1.2 after paragraph (o) the following
paragraph is inserted. "(p) A reference to PARENT is a
reference to ▇▇▇▇▇ ▇▇▇▇▇▇ Industries N.V."
(b) (CLAUSE 17.3(b)(ii)(B)) In clause 17.3(b)(ii)(B) "55%" is
deleted and replaced with "50%".
(c) (CLAUSE 17.3) In clause 17.3 after paragraph (d) the following
paragraph is inserted:
"(e) (OTHER BORROWERS) Other than with the prior consent
of the Lender (which may not be unreasonably withheld
or delayed) the Guarantor will ensure that none of
its
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Subsidiaries will enter into any instrument or agreement under
which money is borrowed or raised by a Subsidiary:
(i) in an aggregate amount equal to or greater than the
Commitment; and
(ii) for a term substantially similar to or greater than
the term of the facility provided under this
Agreement,
unless at the same time the relevant Subsidiary enters into an
accession deed, in form and substance reasonably satisfactory
to the Lender, under which the relevant Subsidiary becomes a
party to and liable under this Agreement as an Obligor in the
capacity of an additional Guarantor."
4. CONDITION PRECEDENT
The provisions of clauses 2 and 3 of this Agreement shall have no force
or effect until the Lender has received in form and substance
satisfactory to it a legal opinion from De Brauw Blackstone Westbroek
N.V., Netherlands legal advisors to the Borrower and the Substitute
Guarantor.
5. REPRESENTATIONS AND WARRANTIES
5.1 REPRESENTATIONS AND WARRANTIES
The Borrower and the Substitute Guarantor each represent and warrant
for the benefit of the Lender that:
(a) the representations and warranties set out in clause 16.1 of
the Facility Agreement are true and correct in relation to it
on and as of the date of this Agreement and the Effective Date
as though they had been made at each such date in respect of
the facts and circumstances then subsisting; and
(b) no Event of Default is subsisting or will be subsisting
immediately before or following the novations and amendment
contemplated by this Agreement.
5.2 RELIANCE
The Borrower and the Substitute Guarantor each acknowledge that the
Lender has entered into this Agreement in reliance on the
representations and warranties in clause 5.1.
6. BORROWER'S ACKNOWLEDGEMENT
The Borrower acknowledges that it shall continue to be bound by and
will comply with the provisions of the Facility Agreement which are
expressed to be binding on it.
7. EXPENSES
The Borrower shall reimburse the Lender for its costs and expenses of
and relating to the preparation, execution and completion of, or the
enforcement of, or preservation of any rights under, this Agreement,
including legal costs and expenses on a full indemnity basis.
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8. STAMP DUTIES
The Borrower shall pay all stamp, transaction, registration, financial
institutions, bank account debit and other duties and taxes (including
fines and penalties) which may be payable or determined to be payable
in relation to the execution, delivery, performance or enforcement of
this Agreement or any payment or receipt or other transaction
contemplated by this Agreement.
9. GOVERNING LAW AND JURISDICTION
This Agreement is governed by the laws of New South Wales. Each party
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
10. COUNTERPARTS
This Agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
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EXECUTED as an agreement.
Each attorney executing this Agreement states that he has no notice of
revocation or suspension of this power of attorney.
SIGNED for ▇▇▇▇▇ ▇▇▇▇▇▇ INTERNATIONAL
FINANCE B.V. by its attorney in the presence of:
________________________________________ ________________________________
Witness Signature Attorney Signature
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Print Name Print Name
SIGNED for ▇▇▇▇▇ ▇▇▇▇▇▇ US FUNDING INC. by
its attorney in the presence of:
________________________________________ ________________________________
Witness Signature Attorney Signature
/s/ ▇. ▇▇▇▇▇▇ /s/ GUY ▇▇▇▇▇▇ ▇▇▇▇▇
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Print Name Print Name
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SIGNED for ▇▇▇▇▇ ▇▇▇▇▇▇ N.V. by its attorney in
the presence of:
________________________________________ ________________________________
Witness Signature Attorney Signature
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Print Name Print Name
SIGNED for ▇▇▇▇▇ ▇▇▇▇▇▇ INDUSTRIES N.V. by its
attorney in the presence of:
________________________________________ ________________________________
Witness Signature Attorney Signature
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Print Name Print Name
SIGNED for BANK by its attorneys in the presence of:
________________________________________ ________________________________
Attorney Signature Attorney Signature
________________________________________ ________________________________
Print Name Print Name
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