EXHIBIT 4.24
DATED 14 DECEMBER 2006
ASBESTOS INJURIES COMPENSATION FUND LIMITED IN ITS CAPACITY AS TRUSTEE FOR
THE
CHARITABLE FUND
as the Beneficiary
and
THE STATE OF NEW SOUTH WALES GOVERNMENT
and
XXXXX XXXXXX INDUSTRIES N.V.
as the Guarantor
CONFORMED COPY
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PARENT GUARANTEE
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THIS PARENT GUARANTEE is made on 14 DECEMBER 2006 in Sydney, New South Wales
BETWEEN:
(1) ASBESTOS INJURIES COMPENSATION FUND LIMITED (ACN 117 363 461, a company
limited by guarantee incorporated under the laws of the State of New South
Wales, Australia, having its registered office at Xxxxx 0, 00 Xxxx Xxxxxx
Xxxxxx New South Wales, in its capacity as trustee for the CHARITABLE FUND
(the "FUND TRUSTEE"), duly represented by Xxxxx Xxxxx and Xxxxxx Xxxxxxxxx;
and
(2) The STATE OF NEW SOUTH WALES, Level 39, Governor Xxxxxxxxx Xxxxx, Xxxxxx
Xxxxx, Xxxxxx XXX 0000, Xxxxxxxxx (the "NSW GOVERNMENT"), duly represented
by Xxxxxx Xxxx Xxxxx;
and
(3) XXXXX XXXXXX INDUSTRIES N.V., a company incorporated under the laws of the
Netherlands, with its corporate seat in Amsterdam, the Netherlands,
registered with the trade register of the Chamber of Commerce with number
34106455 (the "GUARANTOR"), duly represented by Xxxxxxxx Xxxxxxxx and
Xxxxxxx Xxxxx.
The aforementioned parties also collectively referred to as the "PARTIES" or
individually as the "PARTY".
RECITALS:
(1) On 1 December 2005 the NSW Government, JHINV and the Performing Subsidiary
entered into the Original Final Funding Agreement with the common intention
of making funding available by JHINV and/or its subsidiaries to pay, on the
basis set out in the Original Final Funding Agreement, Proven Claims (as
defined in the Original Final Funding Agreement) against the Liable
Entities (as defined in the Original Final Funding Agreement).
(2) On 8 June 2006 the Fund Trustee executed a Deed of Accession so as to
become a party to the Original Final Funding Agreement and to give effect
to the intention and agreement of the relevant parties referred to in
paragraph 1 above.
(3) On 8 June 2006 Asbestos Injuries Corporation Fund Limited, the NSW
Government and the Guarantor executed a Parent Guarantee (THE ORIGINAL
PARENT GUARANTEE).
(4) On 21 November 2006 the parties to the Original Final Funding Agreement
(including the Fund Trustee) entered into Final Funding Agreement, thereby
amending and restating the Original Final Funding Agreement.
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(5) On 14 December 2006 Asbestos Injuries Compensation Fund Limited entered
into the Trust Deed and on 4 December 2006 in its capacity as trustee of
the Discretionary Fund became a party to the Final Funding Agreement by
executing a Deed of Accession.
(6) Pursuant to CLAUSE 10 of the Final Funding Agreement, the Guarantor has
agreed to deliver this Guarantee to the Fund Trustee and the NSW
Government.
(6) The NSW Government is not a creditor of the Guarantor in relation to the
payment of the Guaranteed Obligations.
IT IS AGREED AS FOLLOWS:
1. INTERPRETATION
Capitalised terms shall be used herein as such terms are defined in the
Final Funding Agreement (and such terms will be interpreted in accordance
with the laws of New South Wales, Australia, being the governing law of the
Final Funding Agreement), unless defined otherwise in this Guarantee; and
"FINAL FUNDING AGREEMENT" means the deed dated 21 November 2006 between the
NSW Government, JHINV, the Performing Subsidiary and the Fund Trustee which
amended and restated the Original Final Funding Agreement.
"GUARANTEE" means this guarantee.
"GUARANTEED OBLIGATIONS" means any of the payment obligations of the
Performing Subsidiary to the Fund Trustee under the Final Funding
Agreement, including the obligation to pay the Wind-Up or Reconstruction
Amount, and "Guaranteed Obligation" means any one such payment obligation.
Where the Performing Subsidiary would have been liable to make a payment
under the Final Funding Agreement but for the Liquidation or Insolvency of
the Performing Subsidiary or the occurrence of a Wind-up Event or
Reconstruction Event in respect of the Performing Subsidiary, it will be
taken still to be liable for the purposes of this Guarantee.
ORIGINAL FINAL FUNDING AGREEMENT means the legally binding agreement
entitled "Final Funding Agreement" dated 1 December 2005 between JHINV, the
Performing Subsidiary and the NSW Government to which the Fund Trustee
became a party on 8 June 2006.
1A. ORIGINAL PARENT GUARANTEE
The parties agree that this Guarantee supersedes the Original Parent
Guarantee and that, notwithstanding clause 2.2 of the Original Parent
Guarantee, on the date on which all parties duly execute this Guarantee,
the Original Parent Guarantee shall be terminated and the obligations of
all parties under it shall be fully and finally discharged. On that date
the Fund Trustee and the NSW Government shall procure that all originals of
the executed Original Parent Guarantee in their possession are promptly
returned to the Guarantor.
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2. GUARANTEE
2.1 The Guarantor hereby irrevocably and unconditionally:
(a) guarantees to the Fund Trustee the due and punctual performance by the
Performing Subsidiary of the Guaranteed Obligations;
(b) guarantees to the Fund Trustee that, whenever the Performing
Subsidiary does not pay any amount due under any of its Guaranteed
Obligations, the Guarantor shall immediately on first written demand
by the Fund Trustee pay that amount to the Fund Trustee, as if it were
the principal obligor thereof; and
(c) guarantees to the Fund Trustee that it shall immediately on first
written demand by or on behalf of the Fund Trustee pay to the Fund
Trustee, all costs and expenses incurred by the Fund Trustee in
relation to the protection or enforcement of its rights under this
Guarantee and all costs and damages incurred by the Fund Trustee as a
result of the Performing Subsidiary not fulfilling one or more of the
Guaranteed Obligations when due.
2.2 The obligations of the Guarantor pursuant to CLAUSE 2.1 shall be continuing
obligations and extend to all sums payable by the Performing Subsidiary
under the Guaranteed Obligations. The obligations of the Guarantor pursuant
to CLAUSE 2.1 shall remain in full force and effect until all the
Guaranteed Obligations shall have been paid, satisfied or discharged in
full. Termination of this Guarantee is only allowed if and when the Final
Funding Agreement is terminated (otherwise than due to breach or default by
the Guarantor or the Performing Subsidiary) and the Performing Subsidiary
has fully discharged all of the Guaranteed Obligations. The obligations of
the Guarantor shall remain in full force in the event that the Performing
Subsidiary is replaced by another subsidiary of the Guarantor in accordance
with clause 6.2 of the Final Funding Agreement.
2.3 This Guarantee is a guarantee of performance of the Guaranteed Obligations
by payment of all amounts that are the subject of the Guaranteed
Obligations when due and payable.
2.4 This Guarantee is not a contract of surety (borgtocht). The obligations of
the Guarantor hereunder are independent of the obligations of the
Performing Subsidiary and the obligations of any other guarantor of the
obligations of the Performing Subsidiary under the Final Funding Agreement.
2.5 Payment by the Guarantor of a portion, but not all, of the Guaranteed
Obligations shall in no way limit, affect, modify, abridge or extinguish
the Guarantor's liability for any portion of the Guaranteed Obligations
which has not been paid. Without limiting the generality of the foregoing,
if the Fund Trustee is awarded a judgment in any proceedings brought to
enforce the
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Guarantor's obligations to pay a portion of the Guaranteed Obligations,
such judgment shall not be deemed to release the Guarantor from its
obligation to pay the portion of the Guaranteed Obligations that is not the
subject of such proceedings, and such judgment shall not, except to the
extent satisfied by the Guarantor, limit, affect, modify, abridge or
extinguish any part of the Guarantor's liability in respect of the
Guaranteed Obligations.
2.6 This Guarantee is independent of, in addition to and shall not prejudice or
affect or be prejudiced or be affected by any other right, remedy,
guarantee, indemnity or security and may be enforced without first having
recourse to the same or any other mortgage, charge, pledge or lien now or
hereafter held by or available to the Fund Trustee and/or the NSW
Government.
2.7 If any discharge (whether in respect of the Guaranteed Obligations or any
security for those obligations or otherwise) or arrangement is made in
whole or in part on the faith of any payment, security or other disposition
by the Performing Subsidiary or the Guarantor which is subsequently avoided
or which must be restored (without limitation) on bankruptcy, liquidation,
moratorium of payment or otherwise, the liability of the Guarantor will
continue or be reinstated as if the discharge or arrangement had not
occurred. This clause 2.7 survives the discharge of this Deed.
2.8 Unless and until all the Guaranteed Obligations have been satisfied or
discharged in full, the Guarantor shall not, after a claim has been made or
by virtue of any payment or performance under this Guarantee, in respect of
any payment made to the Fund Trustee and/or the NSW Government:
(a) exercise any right of subrogation in respect of or claim to be
subrogated to any rights, security or moneys held, received or
receivable by the Fund Trustee;
(b) exercise against or claim from the Performing Subsidiary any right of
contribution or recourse;
(c) claim as a creditor of the Performing Subsidiary in competition with
the Fund Trustee; or
(d) have the benefit of or take any action to receive or claim any
payment, distribution or security in respect of the Guaranteed
Obligations or amounts payable under this Guarantee from or on account
of the Performing Subsidiary, or exercise any right of set-off as
against the Performing Subsidiary (and the Guarantor waives any right
it would otherwise have to have the benefit of or receive or claim any
such payment, distribution or security or to exercise any such right
of set-off).
2.9 This Guarantee will not be discharged or otherwise affected as security for
the Guaranteed Obligations as a result of any of the following:
(a) bankruptcy, moratorium of payment, winding-up, reconstruction,
liquidation or similar proceedings relative to the Performing
Subsidiary;
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(b) any change in the status, function, control or ownership of the
Performing Subsidiary;
(c) any extension of time or other forbearance being granted or agreed to
be granted to the Performing Subsidiary in respect of its Guaranteed
Obligations;
(d) any amendment to, or any increase, variation, waiver or release of,
any of the Guaranteed Obligations or any termination, amendment or
variation of the Final Funding Agreement (and any reference herein to
the Final Funding Agreement shall be taken as referring to the Final
Funding Agreement as amended or varied from time to time);
(e) the taking, variation, compromise, exchange, substitution, renewal or
release of, or refusal or neglect to perfect, take up or enforce, any
rights or remedies against, or security over assets of the Performing
Subsidiary or any other person, or any non-presentment or
non-observance of any formality or other requirement in respect of any
instruments or any failure to realise the full value of any security;
(f) any present or future guarantee, indemnity, mortgage, charge, pledge,
lien or other security or right or remedy held by or available to the
Fund Trustee being or becoming wholly or in part void, voidable or
unenforceable on any ground whatsoever; or
(g) any other act, event or omission (other than performance by the
Guarantor of this Guarantee) which, but for this clause might operate
to discharge, extinguish, impair or otherwise affect any of the
obligations of the Guarantor contained herein or any of the rights,
powers or remedies conferred in respect of the Guarantor upon the Fund
Trustee and/or the NSW Government by this Guarantee or by law.
3. ENFORCEMENT
3.1 The Fund Trustee may enforce this Guarantee only upon the occurrence of (i)
a breach of any Guaranteed Obligation by the Performing Subsidiary; (ii) a
Wind-Up Event; or (iii) a Reconstruction Event, in accordance with and
subject to clause 10 of the Final Funding Agreement.
3.2 A claim under this Guarantee in respect of the obligation of the Performing
Subsidiary to make Annual Payments (and/or instalments thereof) under
clause 9 of the Final Funding Agreement, can only be made if the Performing
Subsidiary has been in default (verzuim) for a period of 40 days from the
date when such Annual Payment (or any instalment thereof) was due, provided
that:
(a) the Performing Subsidiary or the Guarantor has immediately provided to
the NSW Government reasons for the default and such reasons are
reasonable in the circumstances (for example and without limitation,
that the Guarantor is experiencing temporary cash flow difficulties
and is seeking to rectify that difficulty); and
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(b) the Guarantor has promptly after that due date entered into and
continued to pursue or been ready, willing and able to enter into and
pursue discussions with the NSW Government and (if available) the Fund
Trustee to remedy the breach and provides to the Fund Trustee and NSW
Government material particulars of the breach and the proposed remedy
or remedies;
(c) the Guarantor is not and does not become Insolvent at any time during
that period; and
(d) subject to clause 10 of the Final Funding Agreement, a Reconstruction
Event does not occur at any time during that period,
provided that such period shall automatically expire upon any of the
requirements in paragraphs (a) to (d) inclusive ("MORATORIUM REQUIREMENTS")
ceasing to be satisfied.
If the Moratorium Requirements remain satisfied at the expiry of the above
40 day period and if in the opinion of the NSW Government (acting
reasonably) there is a reasonable prospect of the Guarantor or the
Performing Subsidiary paying the outstanding amount within a further period
of 50 days, the initial 40 day period shall be extended once by a further
50 days, save that such period shall automatically expire upon any of the
Moratorium Requirements ceasing to be satisfied.
3.3 Without prejudice to clause 3.2 above, the Fund Trustee shall not be
obliged before bringing a claim under this Guarantee:
(a) to take any action against the Performing Subsidiary or to obtain
judgment in any court against the Performing Subsidiary or any other
person;
(b) to file any claim in a bankruptcy, moratorium of payment, winding-up,
liquidation or similar proceedings relative to the Performing
Subsidiary or any other person; or
(c) to make, enforce or seek to enforce any claim against the Performing
Subsidiary or any other person under any agreement or arrangement.
3.4 The restrictions to the enforcement of the Guarantee as set out in clause
3.2 of this Guarantee do not apply in respect of claims under or in
relation to the Guarantee brought by the Fund Trustee in summary
proceedings (kort geding) or other proceedings to obtain urgent
interlocutory Court relief.
3.5 The Guarantor waives any and all rights of set off (verrekening),
counterclaim or suspension (opschorting) it may have at any time with
respect to amounts payable hereunder against amounts owed to it by the Fund
Trustee.
3.6 The Guarantor waives to the fullest extent allowed by the laws of the
Netherlands all rights, privileges, defences and exceptions pursuant to the
Articles 6:139, 7:852, 853, 854, 855 and 856 of the Dutch Civil Code.
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3.7 To the extent permitted by law the Guarantor hereby waives, for the benefit
of the Fund Trustee and the NSW Government:
(a) any right to require the Fund Trustee and/or the NSW Government, as a
condition of payment or performance by the Guarantor, to:
(i) proceed against or exhaust any security held from the Performing
Subsidiary, any other guarantor or any other Person,
(ii) proceed against or have resort to any balance of any credit on
the books of the Fund Trustee and/or the NSW Government in
favour of the Performing Subsidiary or any other Person, or
(iii) pursue any other remedy in the power of the Guarantee Trustee
and/or the NSW Government whatsoever;
(b) any defence arising by reason of the incapacity, lack of authority or
any disability or other defence of the Performing Subsidiary or any
other guarantor, including any defence based on or arising out of the
lack of validity or the unenforceability of the Guaranteed Obligations
or any agreement or instrument relating thereto or by reason of the
cessation of the liability of the Performing Subsidiary or any other
guarantor from any cause other than payment in full of the Guaranteed
Obligations;
(c) any defence based upon any statute or rule of law which provides that
the obligation of a surety must be neither larger in amount nor in
other respects more burdensome than that of the principal;
(d)
(i) any principles or provisions of law, statutory or otherwise,
which are or might be in conflict with the terms hereof and any
discharge of the Guarantor's obligations hereunder;
(ii) the benefit of any statute of limitations affecting the
Guarantor's liability hereunder or the enforcement hereof, and
(iii) promptness, diligence and any requirement that the Fund Trustee
and/or the NSW Government protect, secure, perfect or insure any
security interest or lien or any property subject thereto;
(e) notices, demands, presentments, protests, notices of protest, notices
of dishonour and notices of any action or inaction, including
acceptance hereof, notices of default hereunder, the Final Funding
Agreement, any other Related Agreement or any agreement or instrument
related thereto, notices of any renewal, extension or modification of
the Guaranteed Obligations or any agreement related thereto, notices
of any extension of credit to the Performing Subsidiary and any right
to consent to any thereof; and
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(f) any defences or benefits that may be derived from or afforded by law
which limit the liability of or exonerate guarantors or sureties, or
which may conflict with the terms hereof.
4. REPRESENTATIONS AND WARRANTIES
4.1 The Guarantor warrants that the following is true, accurate and not
misleading as of the date of this Guarantee and will at all times after the
date of this Guarantee up to and including the Commencement Date be true,
accurate and not misleading:
(a) The Guarantor has been duly incorporated and is validly existing under
the laws of its jurisdiction and has the necessary corporate capacity
and power to enter into the Guarantee and to perform its obligations
under the Guarantee.
(b) All corporate and other action required to be taken by the Guarantor
to authorise the execution of the Guarantee and the performance of its
obligations under the Guarantee has been duly taken.
(c) The Guarantee has been duly executed on behalf of the Guarantor and
constitutes legal, valid and binding obligations of the Guarantor,
enforceable in accordance with their terms subject to the terms of the
opinion from De Brauw Blackstone Westbroek referred to in schedule 5
of the Final Funding Agreement.
(d) The execution and performance of the Guarantee do not conflict with or
result in a breach of any provision of the articles of association of
the Guarantor, including but not limited to its corporate purpose, or
any provision of any applicable law in force on the date of this
Guarantee or any agreement to which the Guarantor is a party.
(e) No approval, consent, license or notice to any regulatory or
governmental body (other than such approvals, consents, licenses or
notices as have been obtained or given) is necessary to ensure the
validity, enforceability or performance of the obligations of the
Guarantor under the Guarantee.
5. NOTICES
5.1 All notices, consents, waivers and other communications under this
Guarantee must be in writing in English and delivered by hand or sent by
regular mail, registered mail, express courier, facsimile or e-mail to the
appropriate addresses and facsimile numbers set out below or to such
address and facsimile number as a Party may notify to the other Party from
time to time. A notice shall be effective upon receipt and shall be deemed
to have been received at the time of delivery (if delivered by hand,
registered mail or express courier) or at the time of successful
transmission (if delivered by fax or e-mail).
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TO THE FUND TRUSTEE:
Name: Asbestos Injuries Compensation Fund Limited
Address: Xxxxx 0, 00-00 Xxxx Xxxxxx Xxxxxx Xxx Xxxxx Xxxxx
Fax number: x000 0000 0000
Attention: The Chairman
TO THE NSW GOVERNMENT:
Name: The State of New South Wales, c/- The Cabinet Office
Address: Xxxxx 00, Xxxxxxxx Xxxxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxx, XXX
0000
Fax number: + 000 0000 0000
Attention: Deputy Director-General (Legal)
TO THE GUARANTOR:
Name: Xxxxx Xxxxxx Industries NV
Addresses: Atrium, 0xx xxxxx, Xxxxxxxxxxxxxx 0000, 0000XX Xxxxxxxxx, Xxx
Xxxxxxxxxxx Xxxxx 0, 00 Xxxx Xxxxxx, Xxxxxx XXX 0000
Fax number: + 000 0000 0000
Attention: The Chairman and the Chief Financial Officer
6. NSW GOVERNMENT'S RIGHT TO ENFORCE
6.1 The parties agree and acknowledge that clause 16.6 of the Final Funding
Agreement provides that the NSW Government shall be entitled directly to
enforce all promises made by the Guarantor to the Fund Trustee under this
Guarantee to the full extent permitted by law on and subject to the terms
of clause 16.6 of the Final Funding Agreement.
6.2 Any person (including, but not limited to, a firm, body corporate,
unincorporated association, court or authority) who deals with the NSW
Government in good faith in relation to this Guarantee may, without
enquiry, assume that the NSW Government has complied with clause 16.6 of
the Final Funding Agreement unless the contrary is proved.
6.3 The parties agree and acknowledge that:
(a) the Guarantee is a Related Agreement under the Final Funding
Agreement;
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(b) under an Irrevocable Power of Attorney, a copy of which is attached as
Annexure A to this Guarantee, and in addition to its rights under
clause 6.1 of this Guarantee, the NSW Government shall have the power
directly to enforce as an attorney of the Fund Trustee under the
Irrevocable Power of Attorney and on behalf of the Fund Trustee all
promises made by the Guarantor to the Fund Trustee under this
Guarantee, subject to to the terms of clause 16.6 of the Final Funding
Agreement;
(c) under the Final Funding Agreement, the NSW Government and the Fund
Trustee covenanted that they will not amend or replace that
Irrevocable Power of Attorney without the prior written consent of the
Guarantor, not to be unreasonably withheld; and
(d) any actions taken by the NSW Government under that Irrevocable Power
of Attorney in respect of this Guarantee are valid and binding to the
extent such actions are made in accordance with that Irrevocable Power
of Attorney.
6.4 On the legal relationship of the Beneficiary and the NSW Government
vis-a-vis the Guarantor, article 6:16 of the Dutch Civil Code does not
apply.
7. CHOICE OF LAW AND JURISDICTION
This Guarantee is governed by the laws of the Netherlands, with the
exception of the Netherlands private international law. Any dispute arising
out of or in connection with this Guarantee shall be exclusively decided by
the competent court in Amsterdam.
8. COUNTERPARTS
This Guarantee may be executed in any number of counterparts. All
counterparts together will be taken to be one instrument.
Thus agreed and signed in Sydney on 14 December 2006.
Signed for Asbestos Injuries )
Compensation Fund Limited by )
Signed by X. X. Xxxxx Signed by Xxxxxx Xxxxxxxxx
------------------------------ ---------------------------------
Name: Xxxxx Xxxxx Name: Xxxxxx Xxxxxxxxx
Director Director
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Signed by Xxxxxxxx Xxxxxxxx )
and Xxxxxxx Xxxxx for Xxxxx )
Xxxxxx Industries N.V. )
Signed by Xxxxxxxx Xxxxxxxx Signed by Xxxxxxx Xxxxx
------------------------------ ---------------------------------
Xxxxxxxx Xxxxxxxx Name: Xxxxxxx Xxxxx
Chairman Director, Managing Board
Signed by the Xxx Xxxxxx Xxxx Xxxxx MP, Attorney General)
for the State of New South Wales )
in the presence of )
Signed by Xxxxx Xxx Xxxxxxxxx Signed by Xxxxxx Xxxx Xxxxx
------------------------------ ---------------------------------
Signature of Witness Name:
Xxxxx Xxx Xxxxxxxxx
------------------------------
Name of Witness
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ANNEXURE A
IRREVOCABLE POWER OF ATTORNEY
(attached)
