EXHIBIT 2.9
(XXXXX XXXXXX LOGO)
XXXXX XXXXXX INDUSTRIES NV
9 February 2007 Atrium, 8th Floor
Xxxxxxxxxxxxxx 0000
("FINANCIER") #0# 0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attention: [_]
Tel 00 00 000 0000
Fax: [_] Fax 00 00 000 0000
STRICTLY PRIVATE & CONFIDENTIAL
Dear Sirs
AMENDED & RESTATED FINAL FUNDING AGREEMENT - COMMENCEMENT DATE
TERM FACILITY - OCCURRENCE OF EXTENSION EVENT
GUARANTEE TRUST DEED AND XXXXX XXXXXX INTERCREDITOR DEED NOMINATION LETTERS
We refer to the;
- "Xxxxx Xxxxxx - Common Terms Deed Poll" dated 15 June 2005 ("CTDP")
between the Financier, Xxxxx Xxxxxx International Finance B.V.
("BORROWER") and Xxxxx Xxxxxx Industries N.V. ("JHINV"), as amended by
the "CTDP Amendment Deed and New Borrower Deed Poll" executed by Xxxxx
Xxxxxx Building Products, Inc. (US), the Borrower and JHINV on 12
January 2006 ("CTDP AMENDMENT");
- "Xxxxx Xxxxxx - Term Facility Agreement" ("TERM FACILITY AGREEMENT")
dated #2# June 2005 between the Financier and the Borrower, as amended
by the CTDP Amendment and our letter dated 3 May 2006, countersigned
by the Financier on or about #3# 2006;
- Our letter dated 13 September 2006, countersigned by the Financier on
or about #4# 2006, extending the Term Facility Agreement until 31
March 2007, with automatic extension to the fifth anniversary of the
date of the Term Facility Agreement if the Extension Events occur on
or before 31 March 2007;
- "Xxxxx Xxxxxx - 364-day Facility Agreement" ("364 DAY FACILITY") dated
#2# June 2005 between the Financier and the Borrower, as amended by
the CTDP Amendment and extended by our letters dated 17 November,
1 May 2006 and 12 September 2006, countersigned by the Financier on or
about #5# 2005, #6# 2006 and #7# 2006;
- the Amended & Restated Final Funding Agreement entered into by JHINV,
Xxxxx Xxxxxx 117 Pty Ltd and the State of New South Wales and Asbestos
Injuries Compensation Fund Limited in its capacity as trustee of the
Asbestos Injuries Compensation Fund on 21 November 2006 ("FINAL
FUNDING AGREEMENT"); and
- our letter of 23 November 2006, countersigned by the Financier on or
about #8# December 2006, recording your consent to the terms of the
Final Funding Agreement and the Guarantee and Subordination Documents
for the purposes of sub-paragraph (e) of the definition of "Extension
Events" in the Term Facility Agreement.
Capitalised terms used in this letter have the same meaning as in the Term
Facility Agreement.
We confirm that:
(a) all the conditions precedent to the Final Funding Agreement have been
satisfied or waived and the Commencement Date of the Final Funding
Agreement is 9 February 2007;
(b) the condition precedent to the Xxxxx Xxxxxx Intercreditor Deed (as
defined in the Final Funding Agreement) has been satisfied or waived;
(c) the Guarantee Trust Deed dated 19 December 2006 between JHINV and AET
Structured Finance Services Pty Limited ("GUARANTEE TRUST DEED") has
become effective; and
(d) all the Extension Events have occurred so the Maturity Date under the
Term Facility Agreement is now #9# June 2010.
We enclose Nomination Letters under the Xxxxx Xxxxxx Intercreditor Deed and the
Guarantee Trust Deed in respect of both the Term Facility and the 364 Day
Facility.
Could you please sign and return the enclosed copy of this letter and the
Nomination Letters to us.
/s/ Xxxxxxx Xxxxx /s/ Xxxxx Xxxxxx
----------------------------------- -----------------------------------------
being an authorised Officer of being an authorised Officer of
XXXXX XXXXXX INTERNATIONAL FINANCE B.V. as Borrower and Xxxxxxx's Agent (with
corporate seat in Amsterdam) and XXXXX XXXXXX BUILDING PRODUCTS, INC, (US) as
Borrower
Confirmed and accepted. We acknowledge that the "Xxxxx Xxxxxx - Guarantee Deed"
dated #2# June 2005 has been replaced and superseded by the guarantee in the
Guarantee Trust Deed.
------------------------------------------
(Financier) #1#
--------------------------------- being and Authorised Officer of the Financier.
(Print Name)
