EXHIBIT 2.4
ASSIGNMENT AND ASSUMPTION AGREEMENT AND
FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT
This Assignment and Assumption Agreement and First Amendment to Note
Purchase Agreement (the "Agreement") is made and entered into as of this 24th
day of January, 2000, by and among ▇▇▇▇▇ ▇▇▇▇▇▇ FINANCE B.V., a company
incorporated under the laws of the Netherlands with its corporate seat in
Amsterdam, the Netherlands ("Assignor"), ▇▇▇▇▇ ▇▇▇▇▇▇ U.S. FUNDING, INC., a
Nevada corporation ("Assignee"), ▇▇▇▇▇ ▇▇▇▇▇▇ N.V., a company incorporated under
the laws of the Netherlands with its corporate seat in Amsterdam, the
Netherlands (the "Guarantor"), ▇▇▇▇▇ ▇▇▇▇▇▇ AUST. INVESTCO PTY. LIMITED, a
company organized under the laws of Australia (the "First Subsidiary Guarantor")
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 the Guarantor, as Guarantor, each dated as of November 5, 1998
(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. 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, Guarantor, the First Subsidiary
Guarantor 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 17
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 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 shall enjoy all of the rights and
benefits of the "Issuer" (and an "Obligor") under the Purchase Agreement. 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. 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 SUBSIDIARY GUARANTORS; ACTIVITIES.
Subject only to the provisions of Section 10.2(i), the Guarantor
will at all times maintain the Issuer, the First Subsidiary Guarantor and
the Second Subsidiary Guarantor as Wholly-Owned Subsidiaries of the
Guarantor, and the capital stock of, and any other ownership interests in,
the Issuer, the First Subsidiary Guarantor and the Second Subsidiary
Guarantor will at all times remain free of any Lien.
4. CONSENT UNDER SECTION 10.2. The Required Holders consent to the
transfer of A$850,000,000 of preferred stock issued by a new Subsidiary of the
Guarantor incorporated in the United States from a Subsidiary incorporated in
the United States that owns all of the outstanding stock of the Issuer to an
Australian Subsidiary of the Second Subsidiary Guarantor in consideration of an
A$850,000,000 note payable by such Australian Subsidiary to such United States
Subsidiary.
5. 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 (other than the First Subsidiary Guarantor or
the Second Subsidiary Guarantor);
6. AMENDMENT TO SECTION 10.8. Section 10.8 of the Purchase Agreement shall
be completely replaced by a new Section 10.8, which shall read in full as
follows:
10.8. RESTRICTIONS ON DIVIDENDS BY SUBSIDIARIES.
Except for provisions in this Agreement, the Other Agreements and
the Bank Credit Agreements as in effect on the date hereof, and except for
provisions comparable to (and not more restrictive or extensive in any
material respect than)
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those provisions that may be included in other agreements evidencing
Funded Debt permitted under Sections 10.4 and 10.5 hereof and as may be
required by law, the Guarantor will not, and will not permit any
Subsidiary to, enter into any agreement that would restrict any
Subsidiary's ability or right to pay dividends to, or make advances to or
investments in, the Guarantor (or if any such Subsidiary is not directly
owned by Guarantor, the "parent" Subsidiary of such Subsidiary).
7. AMENDMENT TO SECTION 13. Section 13 of the Purchase Agreement shall be
amended to delete existing subsection (1) and to replace it with a new
subsection (1), which shall read in full as follows:
(1) any Subsidiary Guarantee shall at any time, for any reason,
cease to be in full force and effect or shall be declared to be null and void in
whole or in any material part by the final judgment (which is non-appealable or
has not been stayed pending appeal or as to which all rights to appeal have
expired or been exhausted) of any Governmental Authority having jurisdiction, or
the validity or enforceability of any Subsidiary Guarantee shall be contested by
or on behalf of the Guarantor or any of its Subsidiaries, or the Guarantor or
any such Subsidiary shall renounce a Subsidiary Guarantee or deny that the First
Subsidiary Guarantor or the Second Subsidiary Guarantor, as the case may be, is
bound thereby or has any further liability thereunder.
8. AMENDMENT TO SECTION 15.1. The first sentence of Section 15.1 is
amended to read in full as follows:
The Issuer shall keep at its executive office in Australia 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:
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
Finance Pty Ltd. ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ 92691
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Attention: Treasurer
9. AMENDMENT 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):
"AUSTRALIAN BANK LOAN AGREEMENTS" has the meaning set forth in the
definition of "Bank Credit Agreements."
"BANK CREDIT AGREEMENTS" means (i) the four separate Revolving Loan
Agreements, each dated on or about November 5, 1998 (together with any
related agreements and instruments, the "Australian Bank Loan
Agreements"), between the
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Second Subsidiary Guarantor as successor to the First Subsidiary Guarantor
as borrower), the Issuer (as successor to ▇▇▇▇▇ ▇▇▇▇▇▇ Finance B.V.), the
First Subsidiary Guarantor and the Guarantor (as guarantors) and,
respectively, ANZ Banking Group, Wachovia Bank, Banque Nationale de Paris
and Westdeutsche Landesbank Girozentraie (the "Bank Lenders") under which
the Second Subsidiary Guarantor 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, each dated on
or about November 5, 1998, or, in the case of Westdeutsche Landesbank
Girozentrale, on or about the date hereof (together with any related
agreements and instruments, the "Standby Facilities"), between the Second
Subsidiary Guarantor as successor to ▇▇▇▇▇ ▇▇▇▇▇▇ Finance B.V. (as
borrower), the Guarantor, the Issuer and the First Subsidiary Guarantor as
successors to the First Subsidiary Guarantor (as guarantors) and,
respectively, each of the Bank Lenders, The First National Bank of Chicago
and BBL Australia Limited under which the Second Subsidiary Guarantor may
borrow up to an aggregate of $100,000,000 (or the equivalent in Australian
currency) as such agreements may be amended, modified, refinanced or
replaced with the same or different lenders.
"FIRST SUBSIDIARY GUARANTOR" means ▇▇▇▇▇ ▇▇▇▇▇▇ Aust. Investco Pty
Limited, a company organized under the laws of Australia and its permitted
successors under the Subsidiary Guarantee.
"ISSUER" means ▇▇▇▇▇ ▇▇▇▇▇▇ U.S. Funding Inc., a company
incorporated under the laws of the State of Nevada, 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 a 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, or (d) the ability of the First Subsidiary
Guarantor or the Second Subsidiary Guarantor to perform its obligations
under its Subsidiary Guarantee, or (e) the validity or enforceability of
either Subsidiary Guarantee.
"NOTES" is defined in Section 1 and includes any substitute notes
issued under Section 2 of the Assignment and Assumption Agreement and
First Amendment to Note Purchase Agreement dated as of January 24, 2000.
"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, Debt of the First Subsidiary Guarantor or the Second
Subsidiary Guarantor and Debt of the Issuer, the First Subsidiary
Guarantor or the Second Subsidiary Guarantor under this Agreement, the
Notes, the
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Subsidiary Guarantees, the Bank Credit Agreements (and Guarantys thereof)
and the Standby Facilities (and Guaranty's thereof).
"SECOND SUBSIDIARY GUARANTOR" means ▇▇▇▇▇ ▇▇▇▇▇▇ Australia Finance
Pty. Limited, a company organized under the laws of Australia, and its
permitted successors under the Subsidiary Guarantee.
"STANDBY FACILITIES" has the meaning set forth in the definition of
"Bank Credit Agreements."
"SUBSIDIARY GUARANTEE" means each of the Subsidiary Guarantees
executed and delivered by the First Subsidiary Guarantor and the
Subsidiary Guarantee executed and delivered by the Second Subsidiary
Guarantor, each substantially in the form of Exhibit 4.10 hereto.
10. 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.
11. 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.
12. 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.
13. 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.
14. BINDING ON SUCCESSORS AND ASSIGNS. This Agreement applies to, inures
to the benefit of, and binds the Assignor, Assignee, the Noteholders and their
respective heirs, legatees, devisees, administrators, executors, successors and
assigns.
15. 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.
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16. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNEE. The Assignee and the
Guarantor jointly and severally represent and warrant to the Noteholders that:
16.1. ORGANIZATION; POWER AND AUTHORITY. The Assignee is a
corporation duly incorporated and validly existing under the laws of the State
of Nevada, 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 and to perform the provisions
hereof. The Second Subsidiary Guarantor is a corporation duly incorporated and
validly existing under the laws of Australia and 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 its Subsidiary Guarantee and to perform the provisions
thereof.
16.2. AUTHORIZATION, ETC. This Agreement has been duly authorized by
all necessary corporate action on the part of the Assignee, and this Agreement
constitutes a legal, valid and binding obligation of the Assignee enforceable
against the Assignee 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). The
Subsidiary Guarantee has been duly authorized by all necessary corporate action
on the part of the Second Subsidiary Guarantor, and such Subsidiary Guarantee
constitutes a legal, valid and binding obligation of the Second Subsidiary
Guarantor enforceable against the Second Subsidiary Guarantor 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).
16.3. ORGANIZATION AND OWNERSHIP OF SHARES OF SUBSIDIARIES;
AFFILIATES
(a) Schedule 16.3 contains complete and correct lists of the
Guarantor'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 the Guarantor and each other Subsidiary.
(b) All of the outstanding shares of capital stock or similar
equity interests of each Subsidiary shown in Schedule 16.3 as being owned by the
Guarantor and its Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by the Guarantor or another Subsidiary free and
clear of any Lien (except as otherwise disclosed in Schedule 16.3).
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(c) Each of the Issuer, the Guarantor, the First Subsidiary
Guarantor and the Second Subsidiary Guarantor is a corporation or other legal
entity duly organized or incorporated, validly existing and in good standing
under the laws of its jurisdiction of organization or incorporation, and is duly
qualified as a foreign corporation or other legal entity 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. Each of the Issuer, the Guarantor, the First
Subsidiary Guarantor and the Second Subsidiary Guarantor has the corporate or
other power and authority to own or hold under lease the properties it purports
to own or hold under lease and to transact the business it transacts and
proposes to transact.
(d) 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 the Guarantor or
any of its Subsidiaries that owns outstanding shares of capital stock or similar
equity interests of such Subsidiary.
16.4. COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC. The execution,
delivery and performance by the Assignee of this Agreement, the performance by
the Assignee of the Purchase Agreement and the Notes and the execution, delivery
and performance by the Second Subsidiary Guarantor of the Subsidiary Guarantee
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
Guarantor, the Assignee or any Subsidiary 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 Guarantor, the
Assignee or any Subsidiary is bound or by which the Guarantor, the Assignee 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 Guarantor, the Assignee or any
Subsidiary or (iii) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Guarantor, the
Assignee or any Subsidiary.
16.5. 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 the Assignee of this Agreement or by the Second Subsidiary Guarantor of the
Subsidiary Guarantee.
16.6. LITIGATION. Schedule 16.6 sets forth a reasonably detailed
description of all material litigation and other proceedings involving or
affecting the Guarantor and its Subsidiaries.
16.7. EXISTING DEBT. Except as described therein, Schedule 16.7 sets
forth a complete and correct list of all outstanding Debt of the Obligors and
the Subsidiaries as of
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December 31, 1999, 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.
16.8. YEAR 2000. With respect to the Guarantor and its Subsidiaries,
(a) a review and assessment has been initiated of all areas within the
Guarantor's and its Subsidiaries' business and operations (including those
affected by suppliers, vendors and customers) that could be adversely affected
by the "Year 2000 Problem" (that is, the risk that computer applications used by
the Guarantor or any of its Subsidiaries (or suppliers, vendors and customers)
may be unable to recognize and properly perform date-sensitive functions
involving certain dates prior to and any date after December 31, 1999), (b) a
plan and timetable has been developed for addressing the Year 2000 Problem on a
timely basis, and (c) to date, that plan has been implemented in accordance with
that timetable. Any reprogramming required to avoid a Year 2000 Problem has been
substantially completed, except where failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect. The cost to the Guarantor and its Subsidiaries of such reprogramming and
testing and of the reasonably foreseeable consequences of the Year 2000 Problem
to the Guarantor and its Subsidiaries (including reprogramming errors and the
failure of others' systems or equipment) will not result in a Default or a
Material Adverse Effect. Except for such reprogramming referred to in the
preceding sentence as may be necessary, the computer and management information
systems of the Guarantor and its Subsidiaries are and, with ordinary course
upgrading and maintenance, will continue through the final maturity date of the
Notes to be sufficient to permit the Guarantor and its Subsidiaries to conduct
their respective businesses without a Material Adverse Effect.
16.9. DISCLOSURE. In connection with its request to the Noteholders
to execute this Agreement, the Guarantor, through its agent, Warburg Dillon Read
LLC, has delivered to the Noteholders certain information ("TRANSACTION
INFORMATION") with respect to the Guarantor's realignment of its debt financing
arrangements and the restructuring of inter-corporate relationships among its
various Subsidiaries in order to be more tax effective (which realignment and
restructuring include the assumption of the Notes by the Assignee hereunder, and
which are herein collectively called the "REORGANIZATION"). The Transaction
Information is true, correct and fairly describes, in all material respects, the
Reorganization and the expected effects and benefits thereof in relation to the
Guarantor and its Subsidiaries taken as a whole. Since September 30,1999 (and
after giving effect to the transactions contemplated by this Agreement), 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
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have a Material Adverse Effect that has not been set forth herein or in the
Transaction Information.
17. CONDITIONS TO EFFECTIVENESS. The effectiveness of this Agreement shall
be subject to the satisfaction of each of the following conditions precedent:
17.1 EXECUTED AGREEMENT. Assignor shall have received an executed
counterpart of this Agreement by the Required Holders.
17.2 SECOND SUBSIDIARY GUARANTY. The Second Subsidiary Guarantor
shall have delivered to each Noteholder a Subsidiary Guarantee substantially in
the same form as the Subsidiary Guarantee provided by the First Subsidiary
Guarantor.
17.3 OPINIONS OF COUNSEL. Noteholders shall have received (i) an
opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, in customary form and subject only to
customary qualifications, addressed to each Noteholder, to the effect that the
Notes and the Purchase Agreement (as amended) are legal, valid and binding
agreements of the Assignee enforceable in accordance with their terms, (ii) an
opinion of ▇▇▇▇▇▇▇▇ Carano ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, in
customary form and subject only to customary qualifications, addressed to each
Noteholder, to the effect that the Assignee is a duly existing corporation
organized and in good standing under the laws of the State of Nevada and that
this Agreement has been duly authorized, executed and delivered by the Assignee,
(iii) an opinion of ▇▇▇▇▇, ▇▇▇▇▇ & Helmsley as to the Guaranty provided by the
Second Subsidiary Guarantor comparable to the opinion of such firm delivered in
respect of the Guaranty provided by the First Subsidiary Guarantor at the
closing under the Purchase Agreement and as to the due authorization, execution
and delivery of this Agreement by the First Subsidiary Guarantor, (iv) an
opinion of De Brauw Blackstone Westbroek P.C. as to the due authorization,
execution and delivery of this Agreement by the Guarantor and the Assignor and
(v) an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, in customary form and subject only
to customary qualifications, addressed to each Noteholder, that the Notes and
the Purchase Agreement (as amended) are legal, valid and binding agreements of
the Assignee enforceable in accordance with their terms.
17.4 REPRESENTATIONS AND WARRANTIES; NO DEFAULT. On the Effective
Date, after giving effect to the amendment of the Purchase Agreement
contemplated hereby:
(a) the representations and warranties contained in Section 16
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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17.5 COMPLIANCE CERTIFICATES.
(a) OFFICER'S CERTIFICATE. Assignee shall deliver to each
Noteholder an Officer's Certificate, dated as of the Effective Date, certifying
that the condition specified in Section 17.4 of this Section have been
fulfilled.
(b) SECRETARY'S CERTIFICATE. 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
this Agreement.
17.6 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).
17.8 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.
18. CONSENT AND CONFIRMATION BY GUARANTORS. The Guarantor and the First
Subsidiary Guarantor expressly consent to this Agreement and confirm that their
respective Guarantys of the Notes and the Purchase Agreement, as amended, remain
in full force and effect.
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IN WITNESS WHEREOF, Assignor, Assignee, the Guarantor, the First
Subsidiary Guarantor and the respective Noteholders listed on the attached
signature pages hereof have executed this Agreement effective as of the day and
year first above written.
ASSIGNOR: ASSIGNEE:
▇▇▇▇▇ ▇▇▇▇▇▇ FINANCE B.V., ▇▇▇▇▇ ▇▇▇▇▇▇ U.S. FUNDING, INC.,
a company incorporated under the laws of a Nevada corporation
the Netherlands
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------- -------------------------
Its: ATTORNEY-IN-FACT Its: TREASURER
GUARANTOR: FIRST SUBSIDIARY GUARANTOR:
▇▇▇▇▇ ▇▇▇▇▇▇ N.V., ▇▇▇▇▇ ▇▇▇▇▇▇ AUST.
a company incorporated under the laws of INVESTCO PTY. LIMITED,
Netherlands a company organized under the
laws of Australia
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------- -------------------------
Its: MANAGING DIRECTOR Its: ATTORNEY-IN-FACT
NOTEHOLDERS: [SEE ATTACHED PAGES]
11
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND FIRST AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF JANUARY 24, 2000
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Its: VICE PRESIDENT
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND FIRST AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF JANUARY 24, 2000
CONNECTICUT GENERAL LIFE INSURANCE COMPANY (CIG & CO.)
By: CIGNA Investments, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Its: VICE PRESIDENT
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND FIRST AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF JANUARY 24, 2000
CONNECTICUT GENERAL LIFE INSURANCE COMPANY ON
BEHALF OF ONE OR MORE SEPARATE ACCOUNTS (CIG & CO.)
By: CIGNA Investments, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Its: VICE PRESIDENT
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND FIRST AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF JANUARY 24, 2000
LIFE INSURANCE COMPANY OF NORTH AMERICA (CIG & CO.)
By: CIGNA Investments, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Its: VICE PRESIDENT
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND FIRST AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF JANUARY 24, 2000
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: DIRECTOR
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND FIRST AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF JANUARY 24, 2000
TEXAS LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: AUTHORIZED SIGNATORY
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND FIRST AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF JANUARY 24, 2000
PRINCIPAL LIFE INSURANCE COMPANY,
an Iowa corporation
BY: Principal Capital Management, LLC
a Delaware limited liability company,
its authorized signatory
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇, Counsel
------------------------------
Its: ▇▇▇ ▇. ▇▇▇▇▇, Counsel
By: /s/ [ILLEGIBLE]
------------------------------
Its: /s/ [ILLEGIBLE]
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND FIRST AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF JANUARY 24, 2000
USAA LIFE INSURANCE COMPANY (SALKED & CO.)
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Its: Vice President - Insurance Company Portfolios
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND FIRST AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF JANUARY 24, 2000
THE ▇▇▇▇ ▇▇▇▇▇▇ LIFE INSURANCE COMPANY (▇▇▇▇ & CO.)
By: __________________________________
Name: ________________________________
Its: _________________________________
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND FIRST AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF JANUARY 24, 2000
THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA (▇▇▇▇ & CO.)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: VICE PRESIDENT, FIXED INCOME
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND FIRST AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF JANUARY 24, 2000
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and Company as Investment Adviser
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Managing Director
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND FIRST AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF JANUARY 24, 2000
C.M. LIFE INSURANCE COMPANY
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and Company as Investment Subadviser
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Managing Director
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND FIRST AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF JANUARY 24, 2000
AMERICAN INVESTORS LIFE INSURANCE COMPANY (▇▇▇▇▇▇▇ & CO.)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Its: VP-Investment Management & Research
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND FIRST AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF JANUARY 24, 2000
OHIO NATIONAL LIFE ASSURANCE CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Vice President, Senior Investment Officer
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND FIRST AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF JANUARY 24, 2000
STATE FARM LIFE INSURANCE COMPANY
By: __________________________________
Name: ________________________________
Its: _________________________________
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT AND FIRST AMENDMENT TO
NOTE PURCHASE AGREEMENT DATED AS OF JANUARY 24, 2000
AMERITAS LIFE INSURANCE CORP.
By: __________________________________
Name: ________________________________
Its: _________________________________
SCHEDULE 16.3 LIST OF GUARANTOR'S SUBSIDIARIES AT 31/12/99
% OWNED BY
▇▇▇▇▇ ▇▇▇▇▇▇ NV
COUNTRY OF INCORPORATION AND SUBSIDIARIES
------------------------- ----------------
▇▇▇▇▇ ▇▇▇▇▇▇ N.V. Netherlands 100
▇▇▇▇▇ ▇▇▇▇▇▇ Finance B.V. Netherlands 100
▇▇▇▇▇ ▇▇▇▇▇▇ Australia Finance Pty Ltd Australia 100
▇▇▇▇▇ ▇▇▇▇▇▇ NSW Investments Pty Ltd Australia 100
▇▇▇▇▇ ▇▇▇▇▇▇ FCTA Pty Ltd Australia 100
▇▇▇▇▇ ▇▇▇▇▇▇ Philippines Inc Philippines 100
PT ▇▇▇▇▇ ▇▇▇▇▇▇ Indonesia Indonesia 100
▇▇▇▇▇ ▇▇▇▇▇▇ International Holdings B.V. Netherlands 100
▇▇▇▇▇ ▇▇▇▇▇▇ Research (Holdings) Pty Ltd Australia 100
▇▇▇▇▇ ▇▇▇▇▇▇ Research Pty Ltd Australia 100
▇▇▇▇▇ ▇▇▇▇▇▇ Tech Pty Ltd Australia 100
▇▇▇▇▇ ▇▇▇▇▇▇ USA Investments B.V. Netherlands 100
▇▇▇▇▇ ▇▇▇▇▇▇ (Holdings) Inc USA 100
▇▇▇▇▇ ▇▇▇▇▇▇ (USA) Inc USA 100
▇▇▇▇▇ ▇▇▇▇▇▇ Building Products Inc USA 100
▇▇▇▇▇ ▇▇▇▇▇▇ Credit Corp USA 100
▇▇▇▇▇ ▇▇▇▇▇▇ Gypsum Inc USA 100
▇▇▇▇▇ ▇▇▇▇▇▇ Inc USA 100
▇▇▇▇▇ ▇▇▇▇▇▇ US Funding Inc USA 100
▇▇▇▇▇ ▇▇▇▇▇▇ US Investments Inc USA 100
▇▇▇▇▇ ▇▇▇▇▇▇ US Investments Sierra Inc USA 100
▇▇▇▇▇ ▇▇▇▇▇▇ US Investments Washoe Inc USA 100
▇▇▇▇▇ ▇▇▇▇▇▇ NZ Trustee Ltd ▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ NZ Investco Trust NZ Trust 100
▇▇▇▇▇ ▇▇▇▇▇▇ NZ Holdings Trust NZ Trust ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Ltd NZ 100
▇▇▇▇▇ ▇▇▇▇▇▇ Aust Holdings Pty Ltd Australia 100
▇▇▇▇▇ ▇▇▇▇▇▇ Aust Investco Pty Ltd Australia 100
▇▇▇▇▇ ▇▇▇▇▇▇ Aust Investco Services Pty Ltd Australia 100
▇▇▇▇▇ ▇▇▇▇▇▇ Aust Investments No 1 Pty Ltd Australia 100
▇▇▇▇▇ ▇▇▇▇▇▇ Australia Management Pty Ltd Australia 100
▇▇▇▇▇ ▇▇▇▇▇▇ Australia Pty Ltd Australia 100
▇▇▇▇▇ ▇▇▇▇▇▇ Fibre Cement Pty Ltd Australia 100
▇▇▇▇▇ ▇▇▇▇▇▇ FC Pty Ltd Australia 100
▇▇▇▇▇ ▇▇▇▇▇▇ Windows (Holdings) Pty Ltd Australia 100
▇▇▇▇▇ ▇▇▇▇▇▇ Windows Pty Ltd Australia 100
Louvre Properties Pty Ltd Australia 100
SCHEDULE 16.7 OUTSTANDING DEBT OF THE OBLIGORS AND THE SUBSIDIARIES
1. ▇▇▇▇▇ ▇▇▇▇▇▇ FINANCE B.V.
Guaranteed Senior Notes USD 225 million
2. ▇▇▇▇▇ ▇▇▇▇▇▇ AUST. INVESTCO PTY LIMITED
Revolving Loan Facility
DRAWN AMOUNT AT
COMMITTED AMOUNT 31 DECEMBER 1999
---------------- ----------------
LENDER AUD MILLION AUD MILLION
---------------------------- ---------------- ----------------
Australia & New Zealand
Banking Group Limited 90.0 90.0
▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Banque Nationale de Paris
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.▇ ▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Westdeutsche Landesbank
Girozentrale
Sydney Branch 40.0 40.0
▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Wachovia Bank NA
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ 30.0 30.0
USA
----- -----
TOTAL 200.0 160.0
----- -----
3. ▇▇▇▇▇ ▇▇▇▇▇▇ FINANCE B.V.
Standby Facility
COMMITTED AMOUNT DRAWN AMOUNT
---------------- ----------------
LENDER USD MILLION USD MILLION
------------------------------- ---------------- ----------------
Australia & New Zealand Banking
Group Limited 20.0 0
▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Banque Nationale de Paris
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.▇ ▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Wachovia Bank NA
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ 10.0 0
USA
Bank One NA
▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 20.0 19.7
Sydney ▇▇▇ ▇▇▇▇ (AUD 30 million)
BBL Australia. Ltd
▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 20.0 10.0
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
---- ----------------
TOTAL 85.0 29.7
---- ----------------
4. ▇▇▇▇▇ ▇▇▇▇▇▇ AUSTRALIA FINANCE PTY LTD
Standby Facility
COMMITTED AMOUNT DRAWN AMOUNT
---------------- ------------
LENDER USD MILLION USD MILLION
--------------------------------- ---------------- ------------
Westdeutsche Landesbank
Girozentrale *
Sydney Branch 15.0 0
▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇ Fargo HSBC Trade Bank NA **
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 15.0 0
▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇
---- --
TOTAL 30.0 0
---- --
* Loan agreement signed January 2000 - awaiting completion of conditions
precedent
** Loan Agreement being negotiated - not yet signed
SCHEDULE 16.6 LEGAL PROCEEDINGS
The Company 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 on its business, financial condition or results of
operations.
