EXHIBIT 2.22
MALLESONS STEPHEN JAQUES
James Hardie - Common Terms Deed Poll
Dated June 2005
James Hardie International Finance B.V. ("BORROWER" and
"OBLIGORS' AGENT")
James Hardie Industries N.V. ("GUARANTOR")
MALLESONS STEPHEN JAQUES
Level 60
Governor Phillip Tower
1 Farrer Place
Sydney NSW 2000
Australia
T +61 2 9296 2000
F +61 2 9296 3999
DX 113 Sydney
www.mallesons.com
Ref: GNH:YC:NW
JAMES HARDIE - COMMON TERMS DEED POLL
Contents
DETAILS 1
GENERAL TERMS 2
1 INTERPRETATION 2
1.1 Definitions 2
1.2 References to certain general terms 17
1.3 Numbers 19
1.4 Headings 19
1.5 Conflict 19
1.6 Shareholder ratification 19
PART 1 CREDITORS AND FACILITIES 20
2 CREDITORS AND FACILITIES 20
2.1 Creditors and Facilities 20
2.2 Removal of benefit for particular Creditor 20
PART 2 STANDARD TERMS - ALL FACILITIES 21
3 CONDITIONS PRECEDENT 21
3.1 Conditions to first drawdown 21
3.2 Conditions to subsequent drawdowns 22
4 PAYMENTS 22
4.1 Manner of payment 22
4.2 Currency of payment 23
5 WITHHOLDING TAX 23
5.1 Payments by Obligor 23
5.2 Payments by a facility agent to Creditors 23
5.3 Tax credit 24
5.4 Early repayment or redemption 24
6 INCREASED COSTS 24
6.1 Compensation 24
6.2 Substantiating costs 25
6.3 Procedure for claim 25
6.4 Possible minimisation 26
7 ILLEGALITY 26
7.1 Creditor's right to suspend or cancel 26
7.2 Extent and duration 26
7.3 Notice requiring early repayment or redemption 27
7.4 Creditor to seek alternative funding method 27
8 REPRESENTATIONS AND WARRANTIES 27
8.1 Representations and warranties 27
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8.2 When representations and warranties made 30
8.3 Reliance on representations and warranties 30
9 UNDERTAKINGS 30
9.1 Application 30
9.2 General undertakings 30
9.3 Negative Pledge 31
9.4 Financial undertakings 31
9.5 GAAP 32
9.6 Reporting undertakings 32
9.7 Officer's certificate 35
10 EVENTS OF DEFAULT 36
10.1 Events of Default 36
10.2 Consequences of default 39
11 REVIEW EVENTS 39
12 COSTS AND INDEMNITIES 40
12.1 What the Borrower agrees to pay 40
12.2 Indemnity 41
12.3 Currency conversion on judgment debt 41
12.4 Indirect Taxes 42
13 INTEREST ON OVERDUE AMOUNTS 42
13.1 Obligation to pay 42
13.2 Compounding 42
13.3 Interest following judgment 43
PART 3 GENERAL 44
14 CHANGE OF BORROWERS 44
14.1 New Borrowers 44
14.2 Release of Borrowers 44
15 DEALING WITH INTERESTS 45
15.1 Dealings by Obligors 45
15.2 Dealings by Creditors 45
15.3 Change in lending office 45
15.4 Securitisation permitted 45
15.5 No increased costs 46
15.6 Professional Market Party (PMP) 46
16 OBLIGORS' AGENT 46
16.1 Obligors' Agent as agent of the Obligors 46
16.2 Acts of Obligors' Agent 47
17 NOTICES 47
17.1 Form 47
17.2 Delivery 47
17.3 When effective 48
17.4 Receipt - postal 48
17.5 Receipt - fax 48
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17.6 Receipt - general 48
17.7 Notices to or from facility agent 48
17.8 Waiver of notice period 48
18 GENERAL 48
18.1 Consents 48
18.2 Certificates 48
18.3 Set-off 49
18.4 Discretion in exercising rights 49
18.5 Partial exercising of rights 49
18.6 No liability for loss 49
18.7 Conflict of interest 49
18.8 Remedies cumulative 49
18.9 Indemnities 49
18.10 Rights and obligations are unaffected 49
18.11 Inconsistent law 49
18.12 Supervening legislation 50
18.13 Variation 50
18.14 Waiver 50
18.15 Confidentiality 50
18.16 No responsibility for other's obligations 50
18.17 Further steps 51
18.18 Counterparts 51
18.19 Governing law 51
18.20 Serving documents 51
18.21 Process Agent 51
SCHEDULE 1 - VERIFICATION CERTIFICATE (CLAUSE 3.1) 52
SCHEDULE 2 - FACILITY NOMINATION LETTER (CLAUSE 2.1) 53
SCHEDULE 3 - FORM OF NEW BORROWER DEED POLL (CLAUSE 14.1) 54
SCHEDULE 4 - FORM OF RELEASE REQUEST (CLAUSE 14.2) 55
SCHEDULE 5 - FORM OF DEED OF RELEASE (CLAUSE 14.2) 56
SIGNING PAGE 57
iii
JAMES HARDIE - COMMON TERMS DEED POLL
Details
INTERPRETATION - Definitions are in clause 1.
PARTIES BORROWER AND GUARANTOR, each as described below.
BORROWER Name James Hardie International Finance B.V.
Corporate seat Amsterdam
Registered Number 34108775
Address 8th Floor, Atrium, Unit 08
Strawinskylaan 3077
1077 ZX Amsterdam
The Netherlands
Fax + 31 20 404 2544
Attention Treasurer
GUARANTOR Name James Hardie Industries N.V.
Corporate seat Amsterdam
Registered Number 34106455
ABN 49 097 829 895
Address 8th Floor, Atrium, Unit 08
Strawinskylaan 3077
1077 ZX Amsterdam
The Netherlands
Fax + 31 20 404 2544
Attention Managing Director and Company Secretary
IN FAVOUR OF: Each Creditor as defined in this deed.
DATE OF DEED See Signing page
1
JAMES HARDIE - COMMON TERMS DEED POLL
General terms
1 INTERPRETATION
1.1 DEFINITIONS
These meanings apply unless the contrary intention appears:
A$, AUD or AUSTRALIAN DOLLARS means the lawful currency of Australia.
ASX CNW ANNOUNCEMENT means any release of information by the Guarantor
through the Australian Stock Exchange concerning any event or circumstance
affecting the financial position of the Group in a manner which would
affect the calculation of Consolidated Net Worth and which sets out
specific details of the balance sheet impact of such event or
circumstance.
ASX CNW ANNOUNCEMENT DATE means the date on which an ASX CNW Announcement
is made.
AUTHORISATION means:
(a) any consent, registration, filing, agreement, notarisation,
certificate, licence, approval, permit, authority or exemption from,
by or with a Government Agency; and
(b) any consent or authorisation regarded as given by a Government
Agency due to the expiration of the period specified by a statute
within which the Government Agency should have acted if it wished to
proscribe or limit anything already lodged, registered or notified
under that statute.
AUTHORISED OFFICER means:
(a) in the case of a Creditor, a director or secretary of the Creditor,
or an officer of that party whose title contains the word
"director", "chief", "head", "president", "vice-president",
"executive" or "manager", or a person performing the functions of
any of them, or any other person appointed by the Creditor as an
Authorised Officer for the purposes of a Transaction Document;
(b) in the case of an Obligor, a person appointed by the Obligor and
notified to the Creditor as an Authorised Officer for the purposes
of a Transaction Document, and whose specimen signature is provided
with such notification to the Creditor.
BORROWER means the person so described in the Details and any new borrower
under clause 14.1 ("New Borrowers") and, if there are more than one, means
each of them individually and every two or more of them jointly.
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It excludes any person released pursuant to clause 14.2 ("Release of
Borrowers").
BREAK COSTS means the actual costs and losses which a Creditor certifies
(with reasonable details) that it has suffered or incurred by reason of:
(a) the liquidation or re-employment of deposits or other funds acquired
or contracted for by the Creditor to fund or maintain financial
accommodation under a Facility; or
(b) the termination or reversing of any agreement or arrangement entered
into by the Creditor to hedge, fix or limit its effective cost of
funding in relation to a Facility,
but excluding any loss of margin.
BUSINESS DAY means a weekday (not being a public holiday) on which:
(a) in respect of a day on which the interest rate under a Facility
Agreement is required to be determined and for the purposes of
giving drawdown notices and selection notices under a Facility
Agreement, banks are open for general banking business in London;
(b) for the purposes of making or receiving any payments in US Dollars,
banks are open for general banking business in London, New York and
Sydney;
(c) for the purpose of making or receiving any payments in another
currency, banks are open for general banking business in such place
or places specified in a relevant Facility Agreement; and
(d) for all other purposes, banks are open for general banking business
in Amsterdam, Sydney and any other place specified in a relevant
Facility Agreement.
CAPITAL LEASE means, at any time, a lease with respect to which the lessee
is required concurrently to recognise the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
CAPITAL LEASE OBLIGATION means, with respect to any Group Member (other
than an Excluded Entity) and a Capital Lease, the amount of the obligation
of such Group Member as the lessee under such Capital Lease which would,
in accordance with GAAP, appear as a liability on a balance sheet of such
Group Member.
CHANGE OF CONTROL means the Guarantor becoming a Subsidiary (as defined in
the Corporations Act) of another person.
COMPENSATION PROVISION means, at any time, the aggregate amount (without
double counting) of provisions made by the Group at that time in
accordance with GAAP for asbestos related liabilities (including, without
limitation, obligations to fund or pay compensation pursuant to the
Principal Deed).
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CONSOLIDATED FUNDED CAPITALISATION means, at any time, the sum of
Consolidated Net Worth and Consolidated Funded Debt at that time.
CONSOLIDATED FUNDED DEBT means, as of any date of determination, the total
of all Funded Debt of the Group outstanding on that date, after
eliminating:
(a) all Funded Debt (if any) of the Excluded Entities; and
(b) all offsetting debits and credits between any Group Members
(excluding the Excluded Entities) and all other items required to be
eliminated in the course of the preparation of consolidated
financial statements of the Group in accordance with GAAP.
CONSOLIDATED NET WORTH means, at any date of determination, the sum of:
(a) the par value (or value stated in the books of the Group) of the
capital stock (but excluding treasury stock and capital stock
subscribed and unissued) of the Group; and
(b) the amount of the paid-in capital and retained earnings of the
Group,
plus the Compensation Provision on that date (and eliminating all other
consequential balance sheet impacts relating to the Compensation
Provision), in each case as such amounts would be shown on the
consolidated balance sheet of the Group prepared:
(c) as if the Excluded Entities were not Subsidiaries of the Guarantor
(to the intent that the assets, liabilities and other balance sheet
items of all Excluded Entities shall be excluded in calculating
Consolidated Net Worth); and
(d) in accordance with GAAP,
on the most recent Reporting Date or, where applicable, on the most recent
ASX CNW Announcement Date, to the extent such amounts have been adjusted
to reflect the content of any ASX CNW Announcement which post-dates such
balance sheet.
CONSOLIDATED PERMITTED EXTERNAL FINANCIAL INDEBTEDNESS means, as of any
date of determination, the total of all Permitted External Financial
Indebtedness of the Group outstanding on that date, after eliminating all
offsetting debits and credits between any Group Members (excluding the
Excluded Entities) and all other items required to be eliminated in the
course of the preparation of consolidated financial statements of the
Group in accordance with GAAP.
CONTROLLER has the meaning it has in the Corporations Act.
CORPORATIONS ACT means the Corporation Act 2001 of Australia.
COSTS means costs, fees, disbursements, charges and expenses, including,
without limitation where an Obligor is liable to pay or reimburse the
Costs, those incurred in connection with advisers and, unless an Event of
Default is
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subsisting, only for an amount and on a basis previously agreed to in
writing by the Obligor.
CREDITOR means each party nominated as a "Creditor" under a Facility
Nomination Letter (and includes in the case of any syndicated facility,
the facility agent) and, if there are more than one, means each of them
individually but not jointly. It does not include any Group Member.
DEED OF RELEASE means a deed poll in the form of schedule 5 ("Form of Deed
of Release").
DEFAULT RATE means, in respect of a Transaction Document, the rate of
interest specified in that document as payable on any amount not paid
under the document on the due date for payment.
DETAILS means the section of this deed headed "Details".
DIRECTIVE means:
(a) a law; or
(b) a treaty, official directive, regulation, request, guideline or
policy (whether or not having the force of law) with which
responsible financiers generally comply in carrying on their
business.
DUE CURRENCY means, in respect of any payment to be made under a
Transaction Document, the currency in which that payment is due.
DUTCH BANKING ACT EXEMPTION REGULATION means the Dutch 1992 Banking Act
Exemption Regulation (Vrijstellingsregeling Wtk 1992).
EBIT means the operating profit of the Group, on a consolidated basis,
before adjustments for:
(a) significant, extraordinary, abnormal or exceptional items;
(b) items recognised in connection with the Special Commission of
Inquiry into Medical Research and Compensation Foundation and other
related expenses; and
(c) income tax,
but after:
(d) adding back Net Interest Charges and all items referred to in
paragraphs (a) to (e) of the definition of "Net Interest Charges"
that were deducted in deriving the operating profit figure of the
Group; and
(e) eliminating all income, expense and other profit and loss statement
impact of the Excluded Entities,
determined in each case by reference to the latest audited consolidated
financial statements of the Group delivered under clause 9.6(b). It
excludes
5
any earnings from any Project Activities if these are derived from Project
Vehicles or Project Property over which there exist Security Interests
(unless such earnings have actually been received in cash by an Obligor).
ENVIRONMENTAL LAWS means any and all applicable statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licences, agreements or governmental
restrictions relating to pollution and the protection of the environment
or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
EVENT OF DEFAULT means an Event of Default set out in clause 10.1 ("Events
of Default").
EXCHANGE ACT means the Securities Exchange Act 1934 of the United States
of America.
EXCLUDED ENTITY means the Fund and each of the following entities:
(a) Amaba Pty Limited (ACN 000 387 342);
(b) Amaca Pty Limited (ACN 000 035 512);
(c) ABN 60 Pty Limited (ACN 000 009 263); and
(d) Marlew Mining Pty Limited (formerly known as Asbestos Mines Pty
Limited) (ACN 000 049 650),
and any other entity agreed in writing by the Guarantor and each Creditor
(or, in the case of a syndicated facility, the facility agent).
EXCLUDED TAX means:
(a) a Tax imposed by any jurisdiction on or assessed against a Creditor
as a consequence of the Creditor being a resident of or organised in
or doing business in that jurisdiction, but not any Tax:
(i) that is calculated on or by reference to the gross amount of a
payment derived under a Transaction Document or another
document referred to in a Transaction Document (without the
allowance of a deduction);
(ii) that is imposed as a result of the Creditor being considered a
resident or organised or doing business in that jurisdiction
solely as a result of it being a party to a Transaction
Document or a transaction contemplated by a Transaction
Document; or
(b) a Tax which would not be required to be deducted by an Obligor if,
before the Obligor makes a relevant payment, a relevant Creditor
provided the Obligor with any of its name, address, registration
6
number or similar details or any relevant tax exemption or similar
details.
FACILITY means any facility under a Facility Agreement.
FACILITY AGREEMENT means each agreement to which a Creditor (together with
any other persons) and a Borrower are party, which is nominated as a
"Facility Agreement" in a Facility Nomination Letter.
FACILITY NOMINATION LETTER means a letter substantially in the form set
out in schedule 2 ("Facility Nomination Letter") in favour of a person
(not being a Group Member) providing financial accommodation to a Borrower
(or any agent or trustee on that person's behalf).
FINANCE GUARANTEE means the guarantee to be given by the Guarantor, in
replacement of and to substantially the same effect as the Interim
Guarantees, for the benefit of the Creditors party to the Interim
Guarantees and other persons nominated in accordance with the guarantee.
FINANCIAL INDEBTEDNESS means, with respect to any Group Member, without
double counting:
(a) its liabilities for borrowed money (including all liabilities in
respect of letters of credit (excluding letters of credit and
performance guarantees posted in respect of payment of accounts
payable arising in the ordinary course of business) or instruments
serving a similar function issued or accepted for its account by
banks and other financial institutions);
(b) its liabilities for the deferred purchase price (for more than 90
days) of property acquired by such Group Member (excluding accounts
payable arising in the ordinary course of business);
(c) its Capital Lease Obligations;
(d) all Preferred Stock of Subsidiaries (excluding the Excluded
Entities) of such Group Member which is not owned by such Group
Member or a Wholly Owned Subsidiary of such Group Member; and
(e) any Guarantee of such Group Member with respect to liabilities of a
type described in any of paragraphs (a) to (d) of this definition.
FINANCIAL YEAR means each year ending on 31 March.
FREE CASH FLOW has the meaning given to that term in the Principal Deed.
FUND means the trustee of the special purpose fund contemplated by the
Principal Deed, in its capacity as trustee of that special purpose fund.
FUND GUARANTEE means the guarantee to be given by the Guarantor in favour
of the Fund and the State of New South Wales in accordance with the
Principal Deed and in the form of an Annexure to the Guarantee and
Subordination Documents.
7
FUNDED DEBT means, at any time, with respect to any Group Member (other
than an Excluded Entity), all drawn and outstanding Financial Indebtedness
(other than Non-Recourse Debt) of such Group Member owing to any person
outside the Group (other than an Excluded Entity) at that time.
GAAP means generally accepted accounting principles as in effect from time
to time in the United States of America.
GOVERNMENT AGENCY means any government or any governmental,
semi-governmental, administrative, fiscal or judicial body, department,
commission, authority, tribunal, agency or entity having jurisdiction
over, or in relation to the affairs of, a Group Member and, for the
avoidance of doubt, includes, without limitation, the Australian Taxation
Office, the US Internal Revenue Service and the Dutch tax authorities.
GROUP means the Guarantor and its Subsidiaries and GROUP MEMBER means any
one of them.
GUARANTEE means any guarantee, suretyship, letter of credit, or any other
obligation (whatever called and of whatever nature):
(a) to provide funds (whether by the advance or payment of money, the
purchase of or subscription for shares or other securities, the
purchase of assets or services, or otherwise) for the payment or
discharge of;
(b) to indemnify any person against the consequences of default in the
payment of; or
(c) to be responsible for,
any debt or monetary liability of another person or the assumption of any
responsibility or obligation in respect of the insolvency or the financial
condition of any other person.
GUARANTEE AND SUBORDINATION DOCUMENTS means one or more documents to be
entered into by the Guarantor and others comprising:
(a) the Finance Guarantee; and
(b) subordination arrangements under which the rights of the Fund and
the State of New South Wales against the Guarantor under the Fund
Guarantee will be subordinated to the rights of the beneficiaries of
the Finance Guarantee against the Guarantor under the Finance
Guarantee.
GUARANTOR means the person so described in the Details.
INDIRECT TAX means any goods and services tax, consumption tax, value
added tax or any tax of a similar nature.
INTERIM GUARANTEES means the deeds, each entitled "James Hardie -
Guarantee Deed", entered into by the Guarantor and the Creditors severally
on or about the date of this deed.
8
JHIF means James Hardie International Finance B.V.
MAJORITY CREDITOR means:
(a) in relation to a syndicated or capital markets facility, the
Creditors who form a "majority" (howsoever described) as defined
under that Facility or all such Creditors, to the extent so required
under that facility;
(b) in relation to a bilateral facility, the Creditor under that
facility.
MATERIAL ADVERSE EFFECT means a material adverse effect on:
(a) the ability of each Borrower to perform its obligations to pay
Outstanding Moneys when the same are due or within any applicable
grace period; or
(b) the ability of the Guarantor to perform its obligations under the
relevant Interim Guarantee or the Finance Guarantee in favour of the
Creditor when the same are due or within any applicable grace
period; or
(c) the validity or enforceability of the Transaction Documents.
MATERIAL SUBSIDIARY means any Subsidiary of the Guarantor (other than an
Excluded Entity) whose total assets at the time of determination
(consolidated in the case of a Subsidiary which itself has one or more
Subsidiaries) represent not less than 15% of Consolidated Net Worth at
that time.
NET INTEREST CHARGES for a period means all interest and amounts in the
nature of interest or of similar effect to interest, paid or payable by
the Group (excluding the Excluded Entities), on a consolidated basis, less
interest income received by or arising to the Group (excluding the
Excluded Entities), on a consolidated basis, in the same period for which
such Net Interest Charges are being determined, in each case by reference
to the financial statements referred to in clause 9.6. It excludes:
(a) any swap break or reset costs incurred and paid as part of any
termination of any hedging or facility;
(b) any break costs, early redemption premium, make-whole payments,
liquidated damages or other penalties (howsoever described) incurred
and paid in connection with the prepayment of any facility;
(c) capitalising interest under any agreement for the provision of
Financial Indebtedness to a Group Member which is in the nature of:
(i) a construction facility to fund capital expenditure to be
undertaken by a Group Member (but only while that capitalising
interest is not payable under the terms of that agreement); or
9
(ii) a capital-indexed or zero coupon debt instrument which
contractually allows the capitalisation of interest;
(d) establishment, arrangement, underwriting and other fees payable once
only on the initial provision of financial accommodation;
(e) all interest and amounts in the nature of interest, and any other
amounts of the kind referred to in paragraphs (a) to (d) above,
relating to:
(i) Subordinated Debt;
(ii) hybrid capital;
(iii) Non-Recourse Debt; or
(iv) a loan under which financial accommodation is provided from
one Group Member (not being an Excluded Entity) to another
Group Member (not being an Excluded Entity).
NEW BORROWER means a person who executes a New Borrower Deed Poll in
accordance with clause 14.1 ("New Borrowers").
NEW BORROWER DEED POLL means each deed poll entered into by a New Borrower
substantially in the form set out in schedule 3 ("Form of New Borrower
Deed Poll").
NON-AUSTRALIAN OBLIGOR means an Obligor which is not resident or
incorporated in Australia.
NON-RECOURSE DEBT means any Project Debt if, and for so long as:
(a) the person to whom the Project Debt is owed does not have recourse
(whether by way of execution, set-off or otherwise) to a Group
Member or its assets for the payment or repayment of the Project
Debt other than to assets which the Security Interest ("PROJECT
SECURITIES") securing that Project Debt are permitted to extend to
under paragraph (h) of the definition of Permitted Security Interest
(that person, and any agent or trustee on that person's behalf,
being a "NON-RECOURSE FINANCIER"); and
(b) the Non-Recourse Financier may not seek to wind up or place into
administration, or pursue or make a claim in the winding up or
administration of, any other Group Member to recover or to be repaid
that Project Debt; and
(c) the Non-Recourse Financier cannot obtain specific performance or a
similar remedy with respect to any obligation of another Group
Member to pay or repay that Project Debt; and
(d) the Non-Recourse Financier and any receiver, receiver and manager,
agent or attorney appointed under the Project Securities, may not
incur a liability on behalf of, or for the account of, a Group
Member
10
which liability itself is not subject to the above paragraphs as if
references to Project Debt in those paragraphs included that
liability.
For the avoidance of doubt, if Project Debt is incurred or owed by a Group
Member which is not a Project Vehicle, then the tests in paragraphs (b)
and (c) above must also be satisfied in respect of that Group Member in
order for the Project Debt to qualify as Non-Recourse Debt.
OBLIGOR means:
(a) a Borrower; or
(b) the Guarantor.
OBLIGORS' AGENT means JHIF.
OUTSTANDING MONEYS means all debts and monetary liabilities of each
Obligor to a Creditor under or in relation to any Transaction Document and
in any capacity, irrespective of whether the debts or liabilities:
(a) are present or future;
(b) are actual, prospective, contingent or otherwise;
(c) are at any time ascertained or unascertained;
(d) are owed or incurred by, or on account of, that Obligor alone or
severally or jointly with any other person;
(e) are owed to or incurred for the account of that Creditor alone or
severally or jointly with any other person;
(f) are owed or incurred as principal, interest, fees, charges, taxes,
duties or other imposts, damages (whether for breach of contract or
tort or incurred on any other ground), losses, costs or expenses, or
on any other account; or
(g) comprise any combination of the above.
PERMITTED EXTERNAL FINANCIAL INDEBTEDNESS means Financial Indebtedness of
a Group Member (other than an Obligor or an Excluded Entity) owing to any
person outside the Group under or in connection with:
(a) a working capital facility;
(b) a transactional banking facility;
(c) a Capital Lease;
(d) Non-Recourse Debt;
(e) a "soft loan" or other form of financial accommodation given to a
Group Member by a Government Agency in connection with capital
11
works or expansion plans undertaken by that Group Member or any
other Group Member; or
(f) any financial accommodation which, in the opinion of the Guarantor,
it is preferable for the relevant Group Member to raise from
external sources (rather than by an intra-Group borrowing) for
reasons based on economic advantage, administrative convenience
and/or legal, structural, political and/or tax considerations.
PERMITTED SECURITY INTEREST means:
(a) a Security Interest created by operation of law or otherwise to
secure taxes, assessments or other governmental charges which are
not more than 90 days overdue or are being contested in good faith;
(b) a Security Interest which a Group Member is required to create by
any applicable law or is required or considers it necessary or
expedient to create in order to obtain, maintain or renew any
Authorisation;
(c) a Security Interest created by operation of law or otherwise in
favour of a landlord, carrier, warehouseman, mechanic, materialman
or other supplier (including rights by way of reservation or
retention of title to property) or other similar Security Interest,
in each case, incurred in the ordinary course of business for sums
which are not more than 90 days overdue or are being contested in
good faith;
(d) a Security Interest incurred, or deposits made, in the ordinary
course of business:
(i) in connection with workers' compensation, unemployment
insurance and other types of social security, employment or
retirement benefits; or
(ii) to secure (or to obtain letters of credit that secure) the
performance of tenders, statutory obligations, surety bonds,
appeal bonds, bids, leases (other than Capital Leases),
performance bonds, purchase, construction or sales contracts
and other similar obligations,
in each case not incurred or made:
(A) in connection with the borrowing of money, the obtaining
of advances or credit or payment of the deferred
purchase price of property; nor
(B) to secure obligations due under the Principal Deed or
any Related Agreement (as defined in the Principal
Deed);
(e) a Security Interest in respect of a judgment debt of a Group Member,
provided that the judgment is discharged or execution of it is
stayed
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(permanently or pending appeal) within 90 days of entry thereof or
adequate reserves have been provided for it;
(f) leases or subleases granted to others, easements, rights-of-way,
restrictions and other similar charges or encumbrances, in each case
incidental to, and not interfering with, the ordinary conduct of the
business of the Group;
(g) a Security Interest on property or assets of a Group Member (not
being an Excluded Entity) securing Financial Indebtedness owing to
another Group Member (not being an Excluded Entity);
(h) a Security Interest existing or created under or in respect of
Non-Recourse Debt facilities where the party holding any such
Security Interest has security over Project Property or Project
Vehicles only but no right of recourse to an Obligor or any
Obligor's other assets;
(i) a Security Interest created on any asset or group of associated
assets acquired by a Group Member or developed by a Group Member
after the date of this deed:
(i) for the sole purpose of financing or refinancing that
acquisition or development; and
(ii) securing principal moneys not exceeding one hundred per cent
(100%) of the cost of that acquisition or development;
(j) a Security Interest existing at the time of acquisition on any asset
acquired by a Group Member after the date of this deed and not
created in contemplation of the acquisition, provided that there is
no increase in the amount of the principal moneys secured by that
Security Interest;
(k) a Security Interest existing on property of a person immediately
prior to its being consolidated with or merged into a Group Member
or its becoming a Group Member (by becoming a Subsidiary of the
Guarantor), provided that the Security Interest was not created in
contemplation of the consolidation, merger or acquisition and there
is no increase in the amount of the principal moneys secured by that
Security Interest;
(l) any Security Interest existing at the date of this deed provided
there is no increase in the amount of the principal moneys secured
by that Security Interest;
(m) a Security Interest replacing, renewing, extending or refunding any
Security Interest permitted by paragraph (i), (j), (k), (l) or (m),
provided that:
(i) the principal moneys secured by such Security Interest
immediately prior to such replacement, renewal, extension or
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refunding is not increased or the maturity thereof reduced;
and
(ii) the Security Interest is not extended to any other property;
(n) a Security Interest created with the prior written consent of each
Majority Creditor (or in the case of a syndicated facility, an agent
or trustee acting on the instructions of the relevant Majority
Creditor);
(o) a Security Interest created by a Group Member over its interest in a
joint venture to secure:
(i) its obligations under the joint venture to any other party to
the joint venture; or
(ii) its obligations, or the obligations of the joint venture, or
the obligations of any entity formed for the purpose of the
joint venture, under any agreement (including an agreement
relating to financial accommodation) entered into for the
purposes of the joint venture; or
(p) any Security Interest created pursuant to the general conditions of
a bank operating in the Netherlands based on the general conditions
drawn up by the Netherlands Bankers' Association (Nederlandse
Vereniging van Banken) and the Consumers Union (Consumentenbond),
provided the aggregate amount of Financial Indebtedness of the Group
(excluding intra-Group transactions and Financial Indebtedness of the
Excluded Entities) secured by all such Permitted Security Interests
granted in favour of persons outside the Group may not exceed 10% of the
total assets of the Group (excluding the Excluded Entities) at any time.
PMP means a professional market party as defined in the Dutch Banking Act
Exemption Regulation which includes (among others):
(a) duly supervised banks, insurance companies, securities institutions,
investment institutions and pension funds in the European Union, the
European Economic Area, Monaco, Puerto Rico, Saudi Arabia, Turkey,
South Korea, the United States, Japan, Australia, Canada, Mexico,
New Zealand or Switzerland;
(b) central governments, central banks and international and
supranational organisations;
(c) enterprises with (on their most recent year end balance sheet date)
consolidated total assets of at least euro 500,000,000;
(d) enterprises:
(i) with (on their most recent year end balance sheet date)
consolidated equity of at least euro 10,000,000; and
14
(ii) which have been active on the financial markets at least twice
a month (on average) during the last two years; and
(e) enterprises which have a rating (or which have issued securities
having a rating) from Moody's, Standard & Poor's, Fitch or another
rating agency accepted by the Dutch Central Bank (De Nederlandsche
Bank N.V.).
POTENTIAL EVENT OF DEFAULT means an event or condition the occurrence or
existence of which would, with the lapse of time or the giving of notice
or both, become an Event of Default.
PREFERRED STOCK means any class of capital stock of a corporation that is
preferred over any other class of capital stock of such corporation as to
payment of dividends or the payment of any amount upon liquidation or
dissolution of the corporation.
PRINCIPAL DEED means the legally binding agreement so entitled to be made
between the Guarantor, the James Hardie Group Member identified therein as
the "Performing Subsidiary", the State of New South Wales and (if in
existence at the time of first execution (and, if not, then by subsequent
accession)) the Fund, giving effect to the arrangements contemplated by
the media and stock exchange release issued by the Guarantor entitled
"James Hardie signs Heads of Agreement" and dated 21 December 2004.
PROJECT ACTIVITY means the acquisition, development, construction,
extension, expansion or improvement of any asset.
PROJECT DEBT means with respect to a project or development:
(a) Financial Indebtedness in relation to the acquisition and/or cost of
Project Activities; or
(b) Financial Indebtedness incurred before or at the time of carrying
out Project Activities solely for the purpose of financing or
refinancing the acquisition and/or cost of the Project Activities;
or
(c) any Financial Indebtedness incurred solely to refinance any
Financial Indebtedness referred to above or incurred under any
successive refinancing; or
(d) any liabilities under hedging transactions entered into in
connection with any Financial Indebtedness referred to above or any
Project Activity; or
(e) interest or amounts in the nature of interest, charges, fees, costs
of any nature (including break costs or costs arising from changes
in law), duties, expenses, currency indemnities, withholding taxes,
indirect taxes and other similar indebtedness (however described)
which, in any case, is or are incurred or payable in connection with
any of the above; or
15
(f) any guarantee or indemnity securing payment or repayment of any of
the above amounts (but not any other Financial Indebtedness),
but does not include any Financial Indebtedness which is used to refinance
any assets owned by an Obligor as at the date of this deed.
PROJECT PROPERTY means a Group Member's assets used or predominantly used
in, or generated by, any Project Activities for a project or development
including:
(a) assets forming part of or connected with or derived from that
project or development; and
(b) proceeds derived from other Project Property relating to that
project or development.
PROJECT VEHICLE means an entity, which is established for the purposes of,
and confines its business operations solely to, owning or producing
Project Property, carrying out Project Activities and incurring Project
Debt.
RELATED ENTITY has the meaning given in the Corporations Act.
RELEASE REQUEST means a letter in the form of schedule 4 ("Form of Release
Request").
RELEVANT ENTITY means an Obligor or a Material Subsidiary.
REPORTING DATE means each 31 March, 30 June, 30 September and 31 December
in any year.
SECURITY INTEREST means any mortgage, pledge, lien or charge or any
security or preferential interest or arrangement of any kind or any other
right of, or arrangement with, any creditor to have its claims satisfied
in priority to other creditors with, or from the proceeds of, any asset.
This definition:
(a) includes any retention of title agreements arising other than in the
ordinary course of business; and
(b) excludes any right of set-off, right to combine accounts, or other
similar right or arrangement arising in the ordinary course of
business or by operation of law.
SINGLE SUBMISSION JHIF FINANCIAL REPORT means a non-public financial or
equivalent report prepared in respect of JHIF for the purpose of preparing
consolidated financial statements of the Group, the form and content of
which is at the discretion of the Obligors.
SUBORDINATED DEBT means any Financial Indebtedness of any Group Member
(other than an Excluded Entity) which is subordinated to the Facilities on
terms which each Creditor (or under a syndicated facility, an agent or
trustee acting on the instructions of the Majority Creditor) has confirmed
are acceptable to it (such confirmation not to be unreasonably withheld or
delayed).
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SUBSIDIARY in relation to a corporation means a subsidiary of the
corporation for the purposes of the Corporations Act.
TAX means any present or future tax (including Indirect Taxes), levy,
impost, duty, charge, fee, deduction, compulsory loan or withholding or
any income, stamp or transaction duty, tax or charge, in the nature of tax
whatsoever called (except if imposed on, or calculated having regard to,
the net income of a Creditor) and whether imposed, levied, collected,
withheld or assessed by any Government Agency and includes, but is not
limited to, any penalty, fine, charge, fee, interest or other amount
payable in connection with failure to pay or delay in paying the same.
TERMINATION DATE in respect to a Facility Agreement, means the termination
date, maturity date, final repayment date, final redemption date or other
final payment date (howsoever described) of a Facility as defined in the
relevant Facility Agreement.
TRANSACTION DOCUMENT means each of:
(a) this deed;
(b) each Facility Agreement;
(c) each Facility Nomination Letter;
(d) each New Borrower Deed Poll;
(e) each Deed of Release;
(f) each Interim Guarantee;
(g) the Guarantee and Subordination Documents;
(h) any other document agreed to be a Transaction Document by the
Guarantor and a Creditor; and
(i) any document entered into for the purpose of amending or novating
any of the above.
US$, USD or US DOLLARS means the lawful currency of the United States of
America.
WHOLLY OWNED SUBSIDIARY has the meaning given in section 9 of the
Corporations Act.
1.2 REFERENCES TO CERTAIN GENERAL TERMS
Unless the contrary intention appears, a reference in a Transaction
Document to:
(a) a group of persons is a reference to any two or more of them jointly
and to each of them individually;
17
(b) an agreement, representation or warranty in favour of two or more
persons is for the benefit of them jointly and each of them
individually;
(c) an agreement, representation or warranty by two or more persons
binds them jointly and each of them individually, but an agreement,
representation or warranty by a Creditor binds the Creditor
individually only;
(d) anything (including an amount) is a reference to the whole and each
part of it (but nothing in this clause 1.2(d) implies that
performance of part of an obligation constitutes performance of the
obligation);
(e) a document (including this deed) includes any variation, supplement
to, novation or replacement of it;
(f) law includes (without limitation) common law, principles of equity,
and laws made by any legislative body of any jurisdiction (and
references to any statute, regulation or by-law include any
modification or re-enactment of or any provision substituted for,
and all statutory and subordinate instruments issued under such
statute, regulation or by-law or such provision);
(g) an accounting term is a reference to that term as it is used in
GAAP;
(h) the word "person" includes an individual, a firm, a body corporate,
a partnership, a joint venture, an unincorporated association and
any Government Agency;
(i) a particular person includes a reference to the person's executors,
administrators, successors, substitutes (including persons taking by
novation) and assigns;
(j) the words "including", "for example" or "such as" when introducing
an example, do not limit the meaning of the words to which the
example relates to that example or examples of a similar kind;
(k) other parts of speech and grammatical forms of a word or phrase
defined in this deed have a corresponding meaning;
(l) an agreement includes an undertaking, deed, agreement or legally
enforceable arrangement or understanding whether or not in writing;
(m) a reference to a document includes any agreement in writing, or any
certificate, notice, instrument or other document of any kind;
(n) a reference to a body, other than a party to, or a beneficiary of, a
Transaction Document (including an institute, association or
authority) whether statutory or not:
(i) that ceases to exist; or
(ii) whose powers or functions are transferred to another body,
18
is a reference to the body that replaces it or any body that
substantially succeeds to its powers or functions;
(o) "continuing" or "subsisting", in relation to an Event of Default or
Potential Event of Default, means an Event of Default or Potential
Event of Default (as the case may be) that has not been waived in
writing or remedied.
1.3 NUMBERS
In a Transaction Document, the singular includes the plural and vice
versa.
1.4 HEADINGS
In a Transaction Document, headings (including those in brackets at the
beginning of paragraphs) are for convenience only and do not affect the
interpretation of the Transaction Document.
1.5 CONFLICT
(a) Subject to paragraph (b), even if any other Transaction Document is
not expressly made subject to this deed and despite the time and
date of its execution, where a conflict arises between the
provisions of this deed and any other Transaction Document, the
provisions of this deed shall prevail unless the relevant provision
in the other Transaction Document includes words substantially to
the effect of "Despite the terms of the Common Terms Deed Poll".
(b) Where a conflict arises between the provisions of this deed on the
one hand and the Interim Guarantee or the Guarantee and
Subordination Documents on the other hand,, the provisions of the
Interim Guarantee or the Guarantee and Subordination Documents (as
the case may be) shall prevail to the extent of the inconsistency.
1.6 SHAREHOLDER RATIFICATION
Each Obligor which is a shareholder of another company (a "RELEVANT
COMPANY") which is, or is to become, an Obligor, ratifies and approves in
its capacity as a shareholder of that Relevant Company, the execution and
performance by each such Relevant Company of each Transaction Document to
which it is a party.
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Part 1 Creditors and Facilities
2 CREDITORS AND FACILITIES
2.1 CREDITORS AND FACILITIES
This deed is for the benefit of, and is enforceable by, each Creditor from
time to time even though it is not a party to, or is not in existence at
the time of execution and delivery of this deed, in relation to the
Facility under which that Creditor is entitled and each Transaction
Document under which that Creditor has benefits or obligations.
The benefit and obligations of this deed may be extended to any other
person (and such person shall become a Creditor) in relation to any other
document (and such document shall become a Facility Agreement), by the
Obligors' Agent signing and delivering to that Creditor (or, in the case
of a syndicated facility, the facility agent) a Facility Nomination Letter
and the Creditor countersigning such Facility Nomination Letter.
Each Obligor irrevocably authorises the Obligors' Agent to sign and
deliver any Facility Nomination Letter and acknowledges and confirms that
the provisions of this deed which are for the benefit of the Creditors
will extend to the Facility Agreement so nominated in that Facility
Nomination Letter.
2.2 REMOVAL OF BENEFIT FOR PARTICULAR CREDITOR
This deed ceases to be for the benefit of, and enforceable by, a Creditor
if at any time:
(a) all Outstanding Moneys owing to that Creditor have been fully and
finally paid;
(b) that Creditor is not committed to providing further financial
accommodation to a Borrower pursuant to any Facility; and
(c) this is confirmed in writing by the Creditor. If requested by an
Obligor, a Creditor will promptly confirm in writing that this deed
has ceased to be for the benefit of, and enforceable by, that
Creditor.
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Part 2 Standard terms - all Facilities
3 CONDITIONS PRECEDENT
3.1 CONDITIONS TO FIRST DRAWDOWN
A Creditor's obligation to make available the first drawdown under a
Facility Agreement is subject to the following conditions precedent:
(a) the Creditor (or, in the case of a syndicated facility, the facility
agent) has received each of the following items in form and
substance satisfactory to the Creditor or the facility agent (as the
case may be):
(i) (VERIFICATION CERTIFICATE) a certificate in relation to each
Obligor given by a director of the relevant Obligor
substantially in the form of schedule 1 ("Verification
Certificate") with the attachments referred to therein;
(ii) (LEGAL OPINIONS) closing legal opinions in respect of this
deed, the Facility Agreement and the Interim Guarantee from:
(A) De Brauw Blackstone Westbroek, Netherlands legal
advisers to the Obligors;
(B) Mallesons Stephen Jaques, Australian legal advisers to
the Obligors; and
(C) if a relevant Borrower is incorporated in a jurisdiction
other than The Netherlands or Australia, legal advisers
to the Obligors of recognised standing and acceptable to
the Creditor;
(iii) (EXECUTED DOCUMENTS) to the extent not previously provided to
the Creditor under this deed, an original counterpart or
certified copy of this deed, and original counterparts of the
relevant Interim Guarantee and the Facility Agreement,
executed by all relevant Obligors; and
(iv) (FEES) evidence of instructions issued by the Obligors' Agent
to pay all fees and expenses which are due under the Facility
on or before the first drawdown; and
(b) (REPRESENTATIONS TRUE) the representations and warranties by each
Obligor in clause 8.1 of this deed are true as at the date of the
first drawdown notice and on the date of the first drawdown; and
(c) (NO DEFAULT) no Event of Default or Potential Event of Default
subsists at the date of the first drawdown notice or on the date of
the first drawdown or will result from the provision of the
requested financial accommodation.
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3.2 CONDITIONS TO SUBSEQUENT DRAWDOWNS
The Creditor need not provide any financial accommodation subsequent to
the first drawdown under a Facility Agreement unless:
(a) (REPRESENTATIONS TRUE) the representations and warranties by each
Obligor in clause 8.1 of this deed (other than clause 8.1(d)(ii))
are true as at the date of the drawdown notice and on the drawdown
date, as though they had been made at that date in respect of the
facts and circumstances then subsisting; and
(b) (NO DEFAULT) no Event of Default or Potential Event of Default
subsists at the date of the drawdown notice or on the drawdown date
or will result from the provision of the requested financial
accommodation.
4 PAYMENTS
4.1 MANNER OF PAYMENT
Each Obligor agrees to make payments (including by way of reimbursement)
under each Transaction Document:
(a) on the due date (or, if that is not a Business Day, on the next
Business Day unless that day falls in the following month or after
the Termination Date for the relevant Facility, in which case, on
the previous Business Day); and
(b) at the time which is customary at the time for settlement of
transactions in the relevant currency in the place for payment (if
any) specified in the relevant Facility Agreement; and
(c) in the Due Currency in immediately available funds; and
(d) in full without set-off or counterclaim, and without any deduction
in respect of Taxes unless prohibited by law; and
(e) to the applicable Creditor (or, in the case of a Creditor under a
syndicated facility, the facility agent on its behalf) by making
payment to the account nominated by the Creditor or by payment as
the Creditor otherwise directs.
If a Creditor directs an Obligor to pay a particular party or in a
particular manner, the Obligor is taken to have satisfied its obligation
to the Creditor by paying in accordance with the direction.
An Obligor satisfies a payment obligation only when the Creditor (or, in
the case of a Creditor under a syndicated facility, the facility agent on
its behalf) or the person to whom it has directed payment actually
receives the amount.
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4.2 CURRENCY OF PAYMENT
Each Obligor waives any right it has in any jurisdiction to pay an amount
other than in Due Currency. However, if a Creditor receives an amount in a
currency other than the Due Currency:
(a) it may convert the amount received into the Due Currency (even
though it may be necessary to convert through a third currency to do
so) on the day and at such rates (including spot rate, same day
value rate or value tomorrow rate) as it reasonably considers
appropriate. It may deduct its usual Costs in connection with the
conversion; and
(b) the Obligor satisfies its obligation to pay in the Due Currency only
to the extent of the amount of the Due Currency obtained from the
conversion after deducting the Costs of the conversion. Any surplus
amount will be paid promptly by that Creditor to the Borrower.
5 WITHHOLDING TAX
5.1 PAYMENTS BY OBLIGOR
If a law requires an Obligor to deduct or withhold an amount in respect of
Taxes (other than Indirect Taxes) in respect of a payment under any
Transaction Document such that a Creditor ("INDEMNIFIED PARTY") would not
actually receive on the due date the full amount provided for under the
Transaction Document, then:
(a) the Obligor agrees to deduct the amount for such Taxes and any
further deduction applicable to any further payment due under
paragraph (c) below; and
(b) the Obligor agrees to pay an amount equal to the amount deducted or
withheld to the relevant authority in accordance with applicable
law; and
(c) unless the Tax is an Excluded Tax, the amount payable is increased
so that, after making the deduction or withholding and further
deductions or withholdings applicable to additional amounts payable
under this clause 5.1(c), the Indemnified Party is entitled to
receive (at the time the payment is due) the amount it would have
received if no deductions or withholdings had been required.
5.2 PAYMENTS BY A FACILITY AGENT TO CREDITORS
If a law requires a facility agent under a syndicated facility to deduct
or withhold an amount in respect of Taxes (other than Indirect Taxes) in
respect of a payment by the facility agent to a Creditor under a
syndicated facility such that the Creditor would not actually receive on
the due date the full amount provided for under the syndicated facility,
then:
(a) the facility agent must deduct or withhold the amount for such Taxes
and any further deduction or withholding applicable to any further
payment due under paragraph (c) below; and
23
(b) the facility agent must pay an amount equal to the amount deducted
or withheld to the relevant authority in accordance with applicable
law and promptly give the original receipts to the Borrower; and
(c) unless the Tax is an Excluded Tax, the amount payable is increased
so that, after making the deduction or withholding and further
deductions or withholdings applicable to additional amounts payable
under this clause 5.2(c), the Creditor is entitled to receive (at
the time the payment is due) the amount it would have received if no
deductions or withholdings had been required; and
(d) unless the Tax is an Excluded Tax, the Borrower must pay to the
facility agent an amount equal to any deduction or withholding which
the facility agent is required to make under this clause 5.2.
5.3 TAX CREDIT
If and to the extent that any Creditor is able in its opinion to apply for
or otherwise take advantage of any offsetting tax credit, tax rebate or
other similar tax benefit out of or in conjunction with any deduction or
withholding which gives rise to an obligation on any Obligor to pay any
additional amount pursuant to clause 5.1 or 5.2(d), that Creditor shall:
(a) give notice thereof to the Obligors' Agent and take steps to obtain
that credit, rebate or benefit; and
(b) to the extent that in its opinion it can do so without prejudice to
the retention of the credit, rebate or benefit, and upon receipt
thereof, reimburse to the Obligor such amount of the credit, rebate
or benefit as that Creditor shall, in its opinion (acting
reasonably), have determined to be attributable to the deduction or
withholding. In complying with this clause, no Creditor need
disclose to any Obligor information about their tax affairs or order
them in a particular way.
5.4 EARLY REPAYMENT OR REDEMPTION
Without limiting the other provisions of this clause 5, if a Borrower is
required to pay any amount to a Creditor or facility agent under a
syndicated facility under this clause 5, the Borrower may elect to repay
or redeem early all of that Creditor's outstandings under the applicable
Facility which is affected by the event or events referred to in clause
5.1 or 5.2.
6 INCREASED COSTS
6.1 COMPENSATION
The relevant Borrower agrees to compensate a Creditor on 30 days written
notice if the Creditor determines that:
(a) a Directive, or change in Directive, in either case applying for the
first time after the date of the relevant Facility Agreement; or
24
(b) a change in a Directive's interpretation or administration by an
authority after the date of the relevant Facility Agreement; or
(c) compliance by the Creditor or any of its Related Entities with any
such Directive, changed Directive or changed interpretation or
administration,
directly or indirectly:
(i) increases the effective cost to that Creditor of making,
funding or maintaining the relevant Facility or its proportion
of the Facility; or
(ii) reduces any amount paid or payable to, or received or
receivable by, that Creditor or the effective return to that
Creditor in connection with the relevant Facility.
In this clause 6.1, a reference to a Directive does not include a
Directive imposing or changing the basis of a Tax on the overall net
income of the Creditor.
Compensation need not be in the form of a lump sum and may be demanded as
a series of payments.
A notice under this clause may not claim compensation for an increase or
reduction suffered more than 180 days before the date of the notice,
except to the extent that the event or circumstance giving rise to the
increased cost or reduction is that a Directive is applied retrospectively
and the notice was given by the Creditor no later than 120 days after it
became aware of that event or circumstance and was able to quantify the
amount for which it is entitled to be compensated under this clause 6.1.
Any demand under this clause 6.1 is to be made to the Obligors' Agent by
the Creditor (except in the case of a Creditor under a syndicated
facility, in which case demand must be made by the facility agent).
6.2 SUBSTANTIATING COSTS
If a Creditor (or a facility agent on its behalf) makes a demand under
clause 6.1 ("Compensation"), it must provide the Borrower with reasonably
detailed calculations showing how the amount demanded has been
ascertained. However, nothing in this clause 6.2 obliges the Creditor to
provide details of its business or tax affairs which it considers in good
faith to be confidential.
6.3 PROCEDURE FOR CLAIM
(a) In the absence of manifest error, and subject to clause 6.2
("Substantiating costs"), a certificate by a Creditor is sufficient
evidence of the amount of the compensation payable by the Borrower
to the Creditor under clause 6.1 ("Compensation").
(b) In determining the amount of the compensation payable under clause
6.1 ("Compensation"), the Creditor may use averaging and
25
attribution methods commonly used by the Creditor or any other
method it reasonably considers appropriate to determine the amount.
6.4 POSSIBLE MINIMISATION
(a) The Creditor agrees:
(i) to use reasonable endeavours to mitigate the effects of those
events or circumstances giving rise to the increased cost or
reduction in any payment or return for which the Creditor (or
a facility agent on its behalf) claims compensation under
clause 6.1 ("Compensation"); and
(ii) at the request of the Obligors' Agent, to consider the
transfer or assignment of its rights and obligations under
this deed and the other relevant Transaction Documents to
which it is a party to another bank or financial institution
at par.
(b) Subject to clause 6.4(a)(i), the Borrower agrees to compensate the
Creditor whether or not the increase or the reduction could have
been avoided.
7 ILLEGALITY
7.1 CREDITOR'S RIGHT TO SUSPEND OR CANCEL
This clause 7 applies if a Creditor determines in good faith that:
(a) a change in a Directive; or
(b) a change in the interpretation or administration of a Directive by
an authority; or
(c) a Directive,
makes it (or will make it) illegal in practice for the Creditor to fund,
provide, or continue to fund or provide, financial accommodation under any
Transaction Document. In these circumstances, the Creditor by giving a
notice to the Obligors' Agent, may suspend or cancel some or all of the
Creditor's obligations under the relevant Transaction Document as
indicated in the notice.
7.2 EXTENT AND DURATION
The suspension or cancellation:
(a) must apply only to the extent necessary to avoid the illegality; and
(b) in the case of suspension, may continue only for so long as the
illegality continues.
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7.3 NOTICE REQUIRING EARLY REPAYMENT OR REDEMPTION
If the illegality relates to an amount outstanding to a Creditor, the
Creditor (or, in the case of a syndicated facility, the facility agent),
by giving a notice to the Obligors' Agent, may require early repayment or
redemption of all or part of the affected outstandings and interest
accrued on that part. The Borrower agrees to repay or redeem the amount
specified no later than the date the illegality arises.
7.4 CREDITOR TO SEEK ALTERNATIVE FUNDING METHOD
The affected Creditor (at no cost to an Obligor) during the period of 90
days after the notice pursuant to clause 7.1 agrees to use reasonable
endeavours to make that part of the facility affected by the illegality
available by alternative means (including changing its lending office to
another then existing lending office or making the financial accommodation
available through a Related Entity of the Creditor).
8 REPRESENTATIONS AND WARRANTIES
8.1 REPRESENTATIONS AND WARRANTIES
Each Obligor (but in the case of a Borrower only from the date that it
becomes a Borrower) represents and warrants (except in relation to matters
disclosed to the Creditors and accepted in writing by the Creditors) that:
(a) (STATUS) it is a corporation duly incorporated and validly existing
under the laws of its place of incorporation;
(b) (CORPORATE AUTHORISATION, DOCUMENTS BINDING) each Transaction
Document to which it is a party has been duly authorized by all
necessary corporate action on the part of the Obligor and
constitutes a legal, valid and binding obligation of the Obligor
enforceable against the Obligor 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 law (regardless of whether such
enforceability is considered in a proceeding in equity or at
law);
(c) (COMPLIANCE WITH LAWS) the execution, delivery and performance of
the Transaction Documents to which it is a party will not:
(i) contravene its constitution;
(ii) result in the creation of any Security Interest (other than
any Permitted Security Interest) in respect of any property of
the Obligor or any of its Subsidiaries (excluding the Excluded
Entities);
27
(iii) contravene in any material respect any law to which the
Obligor or any of its Subsidiaries (excluding the Excluded
Entities) is subject or by which the Obligor or any of its
Subsidiaries (excluding the Excluded Entities) or any of their
respective properties may be bound;
(iv) conflict with or result in a breach in any material respect of
any of the terms, conditions or provisions of any order,
judgment, decree, or ruling of any court, arbitrator or
Government Agency applicable to the Obligor or any of its
Subsidiaries (excluding the Excluded Entities);
(v) result in the acceleration or cancellation of any agreement or
obligation in respect of Financial Indebtedness of any Group
Member (excluding the Excluded Entities);
(d) (DISCLOSURE)
(i) all information given to the Creditors by it or with its
authority was, when given, true and correct in all material
respects;
(ii) the most recent Form 20-F filed by the Guarantor with the
United States Securities and Exchange Commission was prepared
and filed in accordance with the applicable requirements of US
securities laws;
(e) (GROUP FINANCIAL STATEMENTS)
(i) the most recent financial statements of the Group (including
in each case the related schedules and notes) fairly present
in all material respects the consolidated financial position
of the Group as at the end of the financial period to which
they relate and have been prepared in accordance with GAAP
consistently applied throughout the periods involved, except
as set forth in the notes thereto (subject, in the case of an
interim financial statements, to normal year-end adjustments);
(ii) since the date of delivery of those statements, there has been
no change in the financial condition, operations, business or
prospects of the Group (excluding the Excluded Entities),
except changes that individually or in the aggregate do not or
are not likely to have a Material Adverse Effect;
(f) (JHIF FINANCIAL STATEMENTS)
(i) the most recent financial statements of JHIF provided in
accordance with clause 9.6(c)(iii) (including in each case the
related schedules and notes) fairly present in all material
respects the consolidated financial position of JHIF as at the
end of the financial period to which they relate and have been
prepared in accordance with generally accepted accounting
28
principles as in effect from time to time in the Netherlands
consistently applied throughout the periods involved, except
as set forth in the notes thereto (subject, in the case of an
interim financial statements, to normal year-end adjustments);
(ii) since the date of delivery of those statements, there has been
no change in the financial condition, operations, business or
prospects of JHIF, except changes that individually or in the
aggregate do not or are not likely to have a Material Adverse
Effect;
(g) (AUTHORISATIONS) all Authorisations necessary in connection with the
execution, delivery or performance by the Obligor of the Transaction
Documents to which it is a party have been obtained and are in full
force and effect;
(h) (LITIGATION) except as disclosed in the most recent financial
statements of the Group, in an announcement by the Guarantor through
the Australian Stock Exchange or under clause 9.6(f) of this deed,
no litigation, arbitration, administrative proceeding or other
procedure for the resolution of disputes is currently taking place
or pending against any Group Member (excluding the Excluded
Entities) or any Group Member's assets (excluding the Excluded
Entities' assets) which has or is likely to have a Material Adverse
Effect;
(i) (SECURITY INTERESTS) no Security Interest exists over any Group
Member's assets (excluding the Excluded Entities' assets) which is
not permitted by clause 9.3;
(j) (ENVIRONMENTAL MATTERS) each Group Member (excluding the Excluded
Entities) has complied with all applicable Environmental Laws and
the terms and conditions of any Authorisation issued pursuant to an
Environmental Law, except where a failure to comply does not or is
not likely to have a Material Adverse Effect;
(k) (NO IMMUNITY) neither it nor any of its assets has any immunity from
jurisdiction, suit, execution, attachment or other legal process in
any jurisdiction in which its assets are located or it carries on
business;
(l) (NOT A TRUSTEE) it does not enter into any Transaction Document as
trustee;
(m) (RANKING) its obligations under the Transaction Documents rank at
least pari passu with all of its other unsecured and unsubordinated
obligations, other than those mandatorily preferred by law;
(n) (DEFAULT UNDER LAW) no member of the Group (excluding the Excluded
Entities) is in breach of any law, Authorisation, agreement or
obligation binding upon it or its assets which has or is likely to
have a Material Adverse Effect; and
29
(o) (HOLDING COMPANY) in the case of the Guarantor only, at the date of
this deed, the Guarantor has no material liabilities other than:
(i) creditors, provisions and indemnities incidental to its
activities as a holding company without a material operating
business, and
(ii) liabilities under this deed, the Interim Guarantees and (when
executed) the Guarantee and Subordination Documents;
(iii) liabilities to the Fund and the State of New South Wales under
the Principal Deed (and Related Agreements, as defined in the
Principal Deed), including the Fund Guarantee, when executed;
(iv) liabilities in relation to taxation; and
(v) liabilities to shareholders in their capacity as such not
prohibited under the Principal Deed.
8.2 WHEN REPRESENTATIONS AND WARRANTIES MADE
Each representation and warranty is made in favour of a Creditor on the
date of execution of its Facility Agreement and is not repeated unless
specified in that Facility Agreement or in clause 3.2(a).
8.3 RELIANCE ON REPRESENTATIONS AND WARRANTIES
Each Obligor acknowledges that the Creditors have entered into the
Transaction Documents in reliance on the representations and warranties in
this clause.
9 UNDERTAKINGS
9.1 APPLICATION
All undertakings set out in this clause 9 apply to a Facility Agreement
unless the Majority Creditor (or under a syndicated facility, an agent or
trustee acting on the instructions of the Majority Creditor) under that
Facility Agreement consents in writing.
9.2 GENERAL UNDERTAKINGS
Each Obligor undertakes to each Creditor as follows:
(a) (NATURE OF BUSINESS) it will not (and will not permit any of its
Subsidiaries (excluding the Excluded Entities) to) engage in any
business if, as a result, the general nature of the business, taken
on a consolidated basis, which would then be engaged in by the Group
would be substantially changed from the general nature of the
business engaged in by the Group on the date of the relevant
Facility Agreement;
30
(b) (COMPLIANCE WITH LAWS) it will comply (and will procure that its
Subsidiaries (excluding the Excluded Entities) comply) with all
applicable laws (including, without limitation, all Environmental
Laws and the terms and conditions of any Authorisation required
under an Environmental Law) in all material respects where
non-compliance has or is likely to have a Material Adverse Effect;
(c) (RANKING) it will ensure that its obligations to the Creditor under
the Transaction Documents rank and will continue to rank at least
pari passu with all of its other unsecured and unsubordinated
obligations, other than those mandatorily preferred by law;
(d) (FINANCIAL INDEBTEDNESS OF GROUP MEMBERS) in the case of the
Guarantor only, and without limiting clauses 9.4(d) or (e), it will
ensure that each Group Member (excluding the Excluded Entities) that
is not an Obligor does not incur any Financial Indebtedness owing to
any person outside the Group that is not Permitted External
Financial Indebtedness;
(e) (HOLDING COMPANY STATUS) in the case of the Guarantor only, it will
have no material liabilities other than those described in clause
8.1(o); and
(f) (PRINCIPAL DEED) in the case of the Guarantor only, it will not
(without the prior written consent of each relevant Creditor (or
under a syndicated facility, an agent or trustee acting on the
instructions of the Majority Creditor), such consent not to be
unreasonably withheld or delayed) vary, or agree to vary, in any
material adverse respect the Principal Deed after the same has been
executed in a form which has been approved by each relevant
Creditor.
9.3 NEGATIVE PLEDGE
Each Obligor undertakes to each Creditor that it will not, and will not
permit any of its Subsidiaries (excluding the Excluded Entities) to,
create or allow to exist a Security Interest over any of its assets, other
than a Permitted Security Interest.
9.4 FINANCIAL UNDERTAKINGS
(a) (CONSOLIDATED NET WORTH) The Guarantor must ensure that Consolidated
Net Worth is not less than US$320 million on each Reporting Date
and, where applicable, on each ASX CNW Announcement Date.
(b) (EBIT) The Guarantor will ensure that EBIT will not be less than 2.5
times Net Interest Charges for the 12 month period ending on each
Reporting Date.
(c) (COMPENSATION FUNDING) The Guarantor will ensure that, except for
the initial funding payments made under the Principal Deed following
the Principal Deed coming into effect, no more than 35% of its Free
Cash Flow in any given Financial Year (commencing with the
31
Financial Year ended 31 March 2006) is contributed to the Fund on
the payment dates under the Principal Deed in the next following
Financial Year.
(d) (FUNDED DEBT) The Guarantor will ensure that the ratio of
Consolidated Funded Debt to Consolidated Funded Capitalisation does
not exceed 65% at any time.
(e) (PERMITTED EXTERNAL FINANCIAL INDEBTEDNESS) The Guarantor will
ensure that the ratio of Consolidated Permitted External Financial
Indebtedness to Consolidated Funded Capitalisation does not exceed
15% at any time.
9.5 GAAP
The financial undertakings in clause 9.4 have been drafted such that
compliance with them is based on GAAP prevailing at the date of this deed
("ORIGINAL GAAP"). If:
(a) the Borrower's or Guarantor's accountants or auditors advise at any
time that any change to GAAP occurring after the date of this deed
materially and adversely alters the effect of any such provision (or
any related definition) and the Obligors' Agent so notifies the
Creditor; or
(b) the Creditor gives written notice to the Obligors' Agent referring
specifically to this clause 9.5 and giving details of a change to
GAAP occurring after the date of this deed which in the Creditor's
opinion (acting reasonably) materially and adversely alters the
effect of any such provision (or any related definition),
then:
(c) the Creditor and the Guarantor must negotiate in good faith to amend
such provision so that they have an effect comparable to that at the
date of this deed; and
(d) until such time as the amendments referred to in clause 9.5(c) are
agreed, compliance with the relevant provision (and related
definitions) will be determined by reference to Original GAAP.
9.6 REPORTING UNDERTAKINGS
The Guarantor shall deliver to each Creditor (or, in the case of a
syndicated facility, the facility agent) the following:
(a) (QUARTERLY GROUP STATEMENTS) within 60 days after the end of each
quarterly fiscal period in each fiscal year of the Guarantor (other
than the last quarterly fiscal period of each such fiscal year) a
copy of:
(i) a consolidated balance sheet of the Group as at the end of
such quarter; and
32
(ii) consolidated statements of income, changes in shareholders'
equity and cash flows of the Group, for such quarter and (in
the case of the second and third quarters) for the portion of
the fiscal year ending with such quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly
financial statements generally, and certified by the chief financial
officer, treasurer or principal accounting officer of the Group as
fairly presenting, in all material respects, the financial position
of the companies being reported on and their results of operations
and cash flows, subject to changes resulting from year-end
adjustments, provided that delivery within the time period specified
above of copies of the Guarantor's Quarterly Report on Form 10-Q
prepared in compliance with the requirements applicable thereto and
filed with the United States Securities and Exchange Commission
shall be deemed to satisfy the requirements of this clause 9.6(a);
(b) (ANNUAL GROUP STATEMENTS) within 105 days after the end of the
fiscal year of the Guarantor a copy of:
(i) a consolidated balance sheet of the Group, as at the end of
such year; and
(ii) consolidated statements of income, changes in shareholders'
equity and cash flows of the Group, for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in
accordance with GAAP, and accompanied by an opinion thereon of
independent certified public accountants of recognised national
standing, which opinion shall state that such financial statements
present fairly, in all material respects, the financial position of
the companies being reported upon and their results of operations
and cash flows and have been prepared in conformity with GAAP, and
that the examination of such accountants in connection with such
financial statements has been made in accordance with generally
accepted auditing standards, and that such audit provides a
reasonable basis for such opinion in the circumstances, provided
that the delivery within the time period specified above of the
Guarantor's Annual Report on Form 10-K for such fiscal year
(together with the Guarantor's annual report to shareholders, if
any, prepared pursuant to Rule 14a-3 under the Exchange Act)
prepared in accordance with the requirements applicable thereto and
filed with the United States Securities and Exchange Commission
shall be deemed to satisfy the requirements of this clause 9.6(b);
(c) (JHIF STATEMENTS AND REPORTS)
(i) at the same time at which each financial statement or report
is delivered pursuant to clause 9.6(a) ("CONSOLIDATED
QUARTERLY STATEMENT") and for as long as a Single
33
Submission JHIF Financial Report is prepared as a matter of
general internal accounting practice of the Obligors, a copy
of the Single Submission JHIF Financial Report for the year to
date as at the end of the quarterly fiscal period to which the
Consolidated Quarterly Statement relates
(ii) at the same time at which each financial statement or report
is delivered pursuant to clause 9.6(b) ("CONSOLIDATED ANNUAL
Statement") and for as long as a Single Submission JHIF
Financial Report is prepared as a matter of general internal
accounting practice of the Obligors, a copy of the Single
Submission JHIF Financial Report for the fiscal year to which
the Consolidated Annual Statement relates;
(iii) within 180 days after the end of the fiscal year of JHIF a
copy of:
(A) the balance sheet of JHIF, as at the end of such year;
and
(B) a statement of income, changes in shareholders' equity
and cash flows of JHIF, for such year,
setting forth in each case in comparative form the figures for
the previous fiscal year, all in reasonable detail, prepared
in accordance with generally accepted accounting principles as
in effect from time to time in the Netherlands, and
accompanied by an opinion thereon of independent certified
public accountants of recognised national standing in the
Netherlands, which opinion shall state that such financial
statements present fairly, in all material respects, the
financial position of JHIF and its results of operations and
cash flows and have been prepared in conformity with generally
accepted accounting principles as in effect from time to time
in the Netherlands, and that the examination of such
accountants in connection with such financial statements has
been made in accordance with generally accepted auditing
standards in the Netherlands, and that such audit provides a
reasonable basis for such opinion in the circumstances;
(d) (SEC AND OTHER REPORTS) promptly upon their becoming available, one
copy of:
(i) to the extent not already provided under clauses 9.6(a), (b)
or (c), each financial statement, report, notice or proxy
statement sent by a Group Member (other than an Excluded
Entity) to public securities holders generally; and
(ii) each regular or periodic report, each registration statement
(without exhibits, except as expressly requested by the
Creditor or facility agent as the case may be), and each
prospectus and all amendments thereto filed by a Group Member
(other than an Excluded Entity) with the United
34
States Securities and Exchange Commission and all
announcements made by the Guarantor through the Australian
Stock Exchange and press releases and other statements made
available generally by any Group Member (other than an
Excluded Entity) to the public concerning developments that
are material;
(e) (NOTICE OF EVENT OF DEFAULT OR POTENTIAL EVENT OF DEFAULT) promptly
upon becoming aware of it, written notice to each Creditor (or, in
the case of a syndicated facility, the facility agent) of:
(i) the existence of any Event of Default or Potential Event of
Default; and
(ii) the occurrence of any event which has or is likely to have a
Material Adverse Effect;
(f) (LITIGATION) to the extent not disclosed in a document provided
under clauses 9.6(a), (b), (c), (d) or (e), notice in writing and in
reasonable detail of any litigation, arbitration, administrative
proceeding or other procedure for the resolution of disputes
commenced, taking place, pending or to its knowledge, threatened
against any Group Member (other than an Excluded Entity) or any
Group Member's assets (other than an Excluded Entity's assets) which
has or is likely to have a Material Adverse Effect;
(g) (REQUESTED INFORMATION) such other information relating to the
business, operations and condition (financial or otherwise) of the
Group (excluding the Excluded Entities) as from time to time may be
reasonably requested by a Creditor (but excluding any information
which the Guarantor is bound by an obligation of confidentiality not
to disclose).
9.7 OFFICER'S CERTIFICATE
Each set of consolidated financial statements delivered pursuant to clause
9.6(a) or 9.6(b) shall be accompanied by:
(a) a supplementary set of financial statements for the Group (excluding
the Excluded Entities), showing adjustments made to the consolidated
financial statements to eliminate the impact of the Excluded
Entities; and
(b) a certificate of the chief financial officer, treasurer or principal
accounting officer of the Group setting forth the information
(including reasonably detailed calculations) required in order to
establish whether the Guarantor was in compliance with the relevant
requirements of clause 9.4.
35
10 EVENTS OF DEFAULT
10.1 EVENTS OF DEFAULT
Each of the following is an Event of Default:
(a) (NON-PAYMENT OF PRINCIPAL) the Borrower fails to pay an amount of
principal payable by it under a Facility Agreement when due and does
not remedy that failure within 2 Business Days after that amount
becomes due and payable;
(b) (NON-PAYMENT OF OTHER AMOUNTS) the Borrower fails to pay any amount,
other than an amount described in paragraph (a), payable by it under
a Facility Agreement and does not remedy that failure within 3
Business Days after that amount becomes due and payable;
(c) (FINANCIAL UNDERTAKINGS)
(i) there is at any time a breach of any financial undertaking in
clause 9.4 and, in the case of a breach of clause 9.4(d) or
(e), the breach is not cured within 10 Business Days of the
Guarantor receiving written notice from a Creditor (or, in the
case of a syndicated facility, the facility agent) requiring
such remedy; or
(ii) the Guarantor fails to deliver a certificate as required by
clause 9.7(b) within 7 days of receipt of written notice from
a Creditor of failure to provide such certificate;
(d) (OTHER DEFAULT)
(i) any Obligor defaults in the performance of or compliance with
any material obligation contained in a Transaction Document
(other than those referred to in clause 10.1(a), (b) or (c));
and
(ii) the default is not waived or, if capable of remedy, the
default is not remedied within 21 days of the Obligor
receiving written notice from a Creditor (or, in the case of a
syndicated facility, the facility agent) referring
specifically to this clause 10.1(d) and requiring such remedy;
(e) (PRINCIPAL DEED) the Group Member primarily liable to make funding
payments to the Fund under the Principal Deed defaults in the
performance of, or compliance with, its obligation to make any such
payment when due or within any applicable grace period and such
default is not cured by that Group Member or the Guarantor within 3
Business Days;
(f) (MISREPRESENTATION)
(i) any representation or warranty made or deemed to be made by an
Obligor in a Transaction Document proves to have
36
been inaccurate in any material respect when made or deemed to
be repeated; and
(ii) the misrepresentation or breach of warranty is not waived or,
if capable of remedy, the matter giving rise to the
misrepresentation or breach of warranty is not remedied within
21 days of the Obligor becoming aware that the representation
or warranty was inaccurate when made or deemed to have been
repeated;
(g) (CROSS-DEFAULT)
(i) an Obligor is in default in the payment of any Financial
Indebtedness that is outstanding in an aggregate principal
amount of at least US$20,000,000 (or its equivalent in another
currency) beyond any period of grace provided with respect
thereto and such Financial Indebtedness is not paid within 3
Business Days; or
(ii) any Financial Indebtedness of an Obligor exceeding
US$20,000,000 (or its equivalent in another currency) has
become, or has been declared, due and payable before its
stated maturity and such Financial Indebtedness is not paid
within 3 Business Days.
(h) (INSOLVENCY) a Relevant Entity:
(i) is generally not paying, or admits in writing its inability to
pay, its debts as they become due;
(ii) files, or consents by answer or otherwise to the filing
against it of, a petition for relief or reorganisation or
arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any bankruptcy,
insolvency, reorganization, moratorium or other similar law of
any jurisdiction (for the avoidance of doubt, this includes,
in respect of a person established under Dutch law, a filing
of a petition by it with any court in the Netherlands in
relation to its bankruptcy (faillissement) or suspension of
payments (surseance van betaling));
(iii) makes an assignment for the benefit of its creditors;
(iv) consents to the appointment of a custodian, receiver, receiver
and manager, trustee or other officer with similar powers with
respect to it or with respect to any substantial part of its
property;
(v) consents to the appointment of an administrator;
(vi) is adjudicated as insolvent or to be liquidated; or
(vii) takes corporate action for the purpose of any of the
foregoing.
37
(i) (RECEIVER)
(i) A court or Government Agency of competent jurisdiction enters
an order appointing, without consent by a Relevant Entity, a
custodian, receiver, receiver and manager, trustee or other
officer with similar powers with respect to the Relevant
Entity or with respect to any substantial part of its
property, or constituting an order for relief or approving a
petition for relief or reorganisation or any other petition in
bankruptcy or for liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction, or ordering
the dissolution, winding-up or liquidation of the Relevant
Entity, or any such petition shall be filed against the
Relevant Entity (other than a frivolous or vexatious petition)
and such petition is not dismissed or cancelled within 30 days
(and for the avoidance of doubt, this includes, in respect of
a person established under Dutch law, appointment by a court
of a trustee (curator) in relation to its bankruptcy or
appointment by a court of a receiver (bewindvoerder) in
relation to its provisional suspension of payments); or
(ii) an administrator of the Relevant Entity is appointed; or
(iii) a receiver, receiver and manager, administrative receiver or
similar officer is appointed to all or any substantial part of
the assets of a Relevant Entity in respect of Financial
Indebtedness that has been due and payable for at least 5
Business Days in an aggregate principal amount of at least
US$20,000,000 (or its equivalent in another currency) and that
officer is not removed within 7 days of his appointment;
(j) (JUDGMENT) a final judgment or judgments for the payment of money
aggregating in excess of US$20,000,000 (or its equivalent in another
currency) are rendered against a Relevant Entity and such judgments
are not, within 45 days after entry thereof, bonded, discharged or
stayed pending appeal, or are not discharged within 45 days after
the expiration of such stay;
(k) (VITIATION OF DOCUMENTS)
(i) any material provision of a Transaction Document ceases for
any reason to be in full force and effect or becomes void,
voidable or unenforceable;
(ii) any law suspends, varies, terminates or excuses performance by
an Obligor of any of its material obligations under a
Transaction Document or purports to do any of the same;
(iii) it becomes impossible or unlawful for an Obligor to perform
any of its material obligations under a Transaction Document
or for the Creditors to exercise all or any of their rights,
powers and remedies under a Transaction Document; or
38
(iv) an Obligor alleges that a Transaction Document has been
affected as described in this paragraph;
(l) (OWNERSHIP OF BORROWER) any Borrower ceases to be directly or
indirectly fully owned and controlled by the Guarantor;
(m) (AUTHORISATION) any Authorisation necessary in connection with the
execution, delivery or performance by an Obligor of the Transaction
Documents, or the validity or enforceability of the Transaction
Documents, is not granted or ceases to be in full force and effect
for any reason or is modified or amended in a manner which, in the
reasonable opinion of all Creditors, would have a Material Adverse
Effect; or
(n) (MATERIAL CHANGE) a change occurs in the financial condition of the
Group (as a whole, but excluding the Excluded Entities) which has a
Material Adverse Effect.
10.2 CONSEQUENCES OF DEFAULT
If an Event of Default is continuing, a Creditor (or, in the case of a
syndicated facility, an agent or trustee acting on the instructions of the
Majority Creditor) may declare at any time by notice to the Obligors'
Agent that:
(a) an amount equal to all or any part of the Outstanding Moneys payable
to the Creditor (or, in the case of a syndicated facility, the
facility agent) is:
(i) payable on demand; or
(ii) immediately due for payment;
(b) the obligations of the Creditor specified in the notice are
terminated and cancelled.
A Creditor (or, in the case of a syndicated facility, the facility agent)
may make either or both of these declarations. The making of either of
them gives immediate effect to its provisions.
11 REVIEW EVENTS
If, at any time after the date of a Facility Agreement and for any reason,
whether or not within the control of the Obligors:
(a) a Change of Control occurs;
(b) the securities of the Guarantor are suspended from quotation by the
Australian Stock Exchange for more than 10 Business Days or the
Guarantor is removed from the Official List of the Australian Stock
Exchange; or
(c) provisions made by the Group in accordance with GAAP for asbestos
related liabilities (if any) not arising in connection with the
Principal
39
Deed exceed 15% of Consolidated Net Worth at that time (with
Consolidated Net Worth for this purpose calculated by adding back
all such asbestos related liabilities under this paragraph (c),
ignoring the 15% cap),
then the Guarantor must notify each Creditor (or, in the case of a
syndicated facility, the facility agent) in writing of the occurrence of
the event as soon as reasonably practicable. A Creditor may, by notice to
the Borrower (with a reasonably detailed explanation of the reasons for
its election to discontinue funding the Borrower) within 60 days of the
date of receipt of notice from the Guarantor:
(d) cancel its commitment to provide financial accommodation under the
relevant Facility Agreement with immediate effect; and/or
(e) declare the moneys borrowed under the relevant Facility Agreement to
be, and the borrowed moneys will be, due and payable on a date no
earlier than 90 days from the date of the Creditor's notice.
12 COSTS AND INDEMNITIES
12.1 WHAT THE BORROWER AGREES TO PAY
Each relevant Borrower agrees to pay a Creditor promptly on demand to the
Obligors' Agent from that Creditor (except in the case of a Creditor under
a syndicated facility, in which case demand must be made by the facility
agent):
(a) the reasonable Costs of each Creditor in connection with:
(i) the registration of any Transaction Document; and
(ii) giving and considering consents, waivers, variations,
discharges and releases requested by the Borrower, the
Guarantor or the Obligors' Agent;
(b) the Costs of each Creditor in exercising, enforcing or preserving
rights in connection with a Transaction Document;
(c) Taxes and fees (including registration fees) (other than Excluded
Taxes) and fines and penalties in respect of fees paid in connection
with any Transaction Document or a payment or receipt or any other
transaction contemplated by any Transaction Document. However, the
Borrower need not pay a fine or penalty in connection with Taxes or
fees to the extent that it has lodged with the relevant Creditor
sufficient cleared funds for the relevant Creditor to be able to pay
the Taxes or fees by the due date.
This clause 12.1 shall not apply to any amounts, which have otherwise been
paid or compensated for under a Transaction Document.
40
12.2 INDEMNITY
Each relevant Borrower indemnifies each Creditor against any claim,
action, damage, loss, liability, cost, charge, expense, outgoing and
payment of Break Costs which that Creditor pays, suffers, incurs or is
liable for in connection with:
(a) any failure by the Borrower to draw down financial accommodation
requested by it under a Transaction Document for any reason except
default of a Creditor; or
(b) financial accommodation under a Transaction Document being repaid,
discharged or made payable other than at its maturity, an interest
payment date or other due date applicable to it; or
(c) any failure to prepay any part of the amount outstanding to a
Creditor in accordance with a prepayment notice given under a
Facility; or
(d) a Creditor acting in connection with a Transaction Document in good
faith on fax or telephone instructions which have no apparent
irregularity on their face, purport to originate from the offices of
an Obligor or to be given by an Authorised Officer of an Obligor
which, in the case of fax instructions, are signed and such
signature accords with a current specimen signature of an Authorised
Officer in the possession of the Creditor; or
(e) an Event of Default or Potential Event of Default; or
(f) a Creditor exercising or attempting to exercise a right or remedy in
connection with a Transaction Document after an Event of Default; or
(g) any indemnity a Creditor gives a Controller or administrator of the
Obligor.
Each Borrower agrees to pay amounts due under this indemnity on demand to
the Obligors' Agent from the applicable Creditor (except in the case of a
Creditor under a syndicated facility, in which case demand must be made
by, and payment must be made to the facility agent).
12.3 CURRENCY CONVERSION ON JUDGMENT DEBT
If a judgment, order or proof of debt for an amount in connection with a
Transaction Document is expressed in a currency other than that in which
the amount is due under the Transaction Document, then the relevant
Borrower indemnifies each Creditor against:
(a) any difference arising from converting the other currency if the
rate of exchange used by the Creditor under clause 4.2 ("Currency of
payment") for converting currency when it receives a payment in the
other currency is less favourable to the Creditor than the rate of
exchange used for the purpose of the judgment, order or acceptance
of proof of debt; and
41
(b) the Costs of conversion.
Each Borrower agrees to pay amounts due under this indemnity to a Creditor
on demand from that Creditor (except in the case of a Creditor under the
syndicated facility, in which case demand must be made by the facility
agent).
12.4 INDIRECT TAXES
(a) All payments to be made by an Obligor under or in connection with
any Transaction Document have been calculated without regard to
Indirect Tax. If all or part of any such payment is the
consideration for a taxable supply or chargeable with Indirect Tax
then, when the Obligor makes the payment:
(i) it must pay to the Creditor an additional amount equal to that
payment (or part) multiplied by the appropriate rate of
Indirect Tax; and
(ii) the Creditor will promptly provide to the Obligor a tax
invoice complying with the relevant law relating to that
Indirect Tax.
(b) Where a Transaction Document requires an Obligor to reimburse a
Creditor for any costs or expenses, that Obligor shall also at the
same time pay and indemnify that Creditor against all Indirect Tax
incurred by that Creditor in respect of the costs or expenses save
to the extent that that Creditor is entitled to repayment or credit
in respect of the Indirect Tax. The Creditor will promptly provide
to the Obligor a tax invoice complying with the relevant law
relating to that Indirect Tax.
13 INTEREST ON OVERDUE AMOUNTS
13.1 OBLIGATION TO PAY
If an Obligor does not pay any amount under any Transaction Document
(including an amount of interest payable under this clause 13.1) on the
due date for payment, the Borrower must pay interest on that amount at the
Default Rate. The interest accrues daily from (and including) the due date
to (but excluding) the date of actual payment and is calculated on actual
days elapsed and either a 360 or 365 day year, whichever is the length of
time customarily adopted for such calculations for the currency in which
the relevant amount is denominated.
The Borrower must pay interest under this clause to the relevant Creditor.
13.2 COMPOUNDING
Interest payable under clause 13.1 ("Obligation to pay"), which is not
paid when due for payment, may be added to the overdue amounts by the
relevant Creditor on the last Business Day of each calendar month.
Interest is payable
42
on the increased overdue amount at the Default Rate in the manner set out
in clause 13.1 ("Obligation to pay").
13.3 INTEREST FOLLOWING JUDGMENT
If a liability becomes merged in a judgment, the Borrower must pay
interest on the amount of that liability as an independent obligation.
This interest:
(a) accrues daily from (and including) the date the liability becomes
due for payment both before and after the judgment up to (but
excluding) the date the liability is paid; and
(b) is calculated at the judgment rate or the Default Rate (whichever is
higher).
The Borrower must pay interest under this clause 13 to the relevant
Creditor on demand from the relevant Creditor.
43
Part 3 General
14 CHANGE OF BORROWERS
14.1 NEW BORROWERS
A Wholly Owned Subsidiary of the Guarantor may, with the consent of each
relevant Creditor, become a party to this deed as a Borrower (after the
date of this deed) by:
(a) signing and delivering to each relevant Creditor (or, in the case of
a syndicated facility, the facility agent) a deed poll substantially
in the form of schedule 3 ("Form of New Borrower Deed Poll"); and
(b) doing any other thing the relevant Creditors reasonably request to
ensure the enforceability of that company's obligations as a
Borrower and, if requested, agrees to provide an opinion in form and
substance satisfactory to the relevant Creditors from legal advisers
of recognised standing acceptable to the relevant Creditors in that
company's place of incorporation confirming such enforceability.
The Guarantor will confirm in writing to each relevant Creditor that the
Interim Guarantee or the Finance Guarantee (as the case may be) applies to
the borrowings of the new Borrower under the relevant Facility Agreements.
14.2 RELEASE OF BORROWERS
(a) The Guarantor may request that a Borrower cease to be a Borrower by
giving to each relevant Creditor (or, in the case of a syndicated
facility, the facility agent) a duly completed Release Request
executed by an Authorised Officer of the Guarantor and the Borrower
that is, subject to the remaining provisions of this clause, to
cease being a Borrower.
(b) On giving a Release Request to the Creditor (or, in the case of a
syndicated facility, the facility agent) pursuant to clause 14.2(a),
the Guarantor and the Borrower identified in that Release Request
represent and warrant to the Creditor that no Event of Default or
Potential Event of Default is outstanding or would result from the
release of that Borrower from its obligations under this deed.
(c) The Creditor (or, in the case of a syndicated facility, the facility
agent) must, as soon as reasonably practicable after receiving a
Release Request, execute a Deed of Release releasing the Borrower
identified in the Release Request from its obligations under this
deed if, and only if:
(i) no amount due and payable to that Creditor by that Borrower
under this deed remains outstanding and unpaid; and
(ii) that Creditor is not committed to providing further financial
accommodation to that Borrower pursuant to any Facility.
44
(d) The Borrower identified in the Release Request will cease to be a
Borrower when the Creditor (or, in the case of a syndicated
facility, the facility agent) executes a Deed of Release in respect
of that Borrower.
15 DEALING WITH INTERESTS
15.1 DEALINGS BY OBLIGORS
An Obligor may only assign or otherwise deal with its rights or
obligations under any Transaction Document with the consent of each
Creditor.
15.2 DEALINGS BY CREDITORS
A Creditor may assign, transfer, sub-participate or otherwise deal with
all or any of its rights or obligations under a Transaction Document at
any time if:
(a) the Obligors' Agent has given its prior consent, which consent shall
not be unreasonably withheld;
(b) in respect of any Dutch Borrower, the assignment, transfer,
sub-participation or other dealing is to or with a PMP; and
(c) in the case of a transfer of obligations, the transfer is effected
by a novation in form and substance reasonably satisfactory to the
relevant Borrower.
15.3 CHANGE IN LENDING OFFICE
A Creditor may change its lending office if it first notifies and consults
with the Obligors' Agent. If this occurs, clause 15.5 will apply.
15.4 SECURITISATION PERMITTED
(a) Subject to clause 15.4(b), a Creditor may, without having to obtain
the consent of or notify any Obligor, assign, transfer,
sub-participate or otherwise deal with all or any part of its rights
and benefits under any Transaction Document to a trustee of a trust,
company or other entity which in each case is established for the
purposes of securitisation and, to the extent required for the Dutch
Borrower to comply with the Dutch 1992 Banking Act on the
Supervision of the Credit System (Wet toezicht kredietwezen 1992),
is a PMP.
(b) Notwithstanding any assignment, transfer, sub-participation or other
dealing by that Creditor under clause 15.4(a):
(i) that Creditor remains bound by, and must continue to perform
all its obligations under the Transaction Documents;
(ii) that Creditor is the only person entitled to exercise any
power, and no assignee, transferee, sub-participant or other
person who obtains an interest in any of the rights or
benefits of that
45
Creditor under the Transaction Documents pursuant to clause
15.4(a) may do so; and
(iii) any amount payable by the Obligors to that Creditor under any
Transaction Document will, if paid by an Obligor to that
Creditor, operate as an effective discharge of the Obligor's
obligation to make that payment.
(c) Nothing done by a Creditor under this clause 15.4 will affect any
Obligor's rights under any Transaction Documents.
15.5 NO INCREASED COSTS
Despite anything to the contrary in this deed or the Transaction
Documents, if a Creditor changes its lending office or transfers, assigns,
novates or otherwise deals with its rights or obligations under the
Transaction Documents, then no Obligor will be required to pay:
(a) any net increase in the total amount of fees, Taxes, costs, expenses
or charges which arises as a consequence of the change in lending
office, transfer, assignment, novation or other dealing; or
(b) any fees, Taxes, costs, expenses or charges in respect of the change
in lending office, transfer, assignment, novation or other dealing.
A substitution will be regarded as a transfer for the purposes of this
clause 15.5.
15.6 PROFESSIONAL MARKET PARTY (PMP)
The Obligors acknowledge that unless the Creditors are notified in writing
by the Obligors' Agent of a change in the meaning of "PMP" as defined in
the Dutch Banking Act Exemption Regulation, the Creditors will rely on,
and will not independently investigate, the definition of PMP set out in
this deed for the purpose of complying with the requirements of clause
15.2(b) and 15.4(a).
16 OBLIGORS' AGENT
16.1 OBLIGORS' AGENT AS AGENT OF THE OBLIGORS
Each Obligor (other than the Obligors' Agent):
(a) irrevocably authorises the Obligors' Agent to act on its behalf as
its agent in relation to the Transaction Documents, including:
(i) to give and receive as agent on its behalf all notices and
instructions (including drawdown notices);
(ii) to sign on its behalf all documents in connection with the
Transaction Documents (including amendments and variations of
any Transaction Documents, and to execute any new Transaction
Documents); and
46
(iii) to take such other action as may be necessary or desirable
under or in connection with the Transaction Documents; and
(b) confirms that it will be bound by any action taken by the Obligors'
Agent under or in connection with the Transaction Documents.
16.2 ACTS OF OBLIGORS' AGENT
(a) The respective liabilities of each of the Obligors under the
Transaction Documents shall not be in any way affected by:
(i) any actual or purported irregularity in any act done or
failure to act by the Obligors' Agent;
(ii) the Obligors' Agent acting (or purporting to act) in any
respect outside any authority conferred upon it by any
Obligor; or
(iii) any actual or purported failure by or inability of the
Obligors' Agent to inform any Obligor of receipt by it of any
notification under the Transaction Documents.
(b) In the event of any conflict between any notices or other
communications of the Obligors' Agent and any other Obligor, those
of the Obligors' Agent shall prevail.
17 NOTICES
17.1 FORM
Unless expressly stated otherwise in a Transaction Document, all notices,
certificates, consents, approvals, waivers and other communications in
connection with that Transaction Document ("NOTICES") must be in writing,
signed by an Authorised Officer of the sender and marked for attention as
set out or referred to in the Details of this deed or another Transaction
Document or, if the recipient has notified otherwise, marked for attention
in the way last notified.
17.2 DELIVERY
Notices must be:
(a) delivered to the address set out or referred to in this deed or as
set out as the recipient's relevant address in another Transaction
Document; or
(b) sent by prepaid post (airmail, if appropriate) to the address set
out or referred to in the Details or as set out as the recipient's
address in another Transaction Document; or
(c) sent by fax to the fax number set out or referred to in the Details
or as set out as the recipient's relevant fax number in another
Transaction Document.
47
However, if the intended recipient has notified a changed postal address
or changed fax number, then the communication must be to that address or
number.
17.3 WHEN EFFECTIVE
Notices take effect from the time they are received unless a later time is
specified in them.
17.4 RECEIPT - POSTAL
If sent by post, Notices are taken to be received three Business Days
after posting (or five Business Days after posting if sent across national
boundaries).
17.5 RECEIPT - FAX
If sent by fax, Notices are taken to be received at the time shown in the
transmission report as the time that the whole fax was sent.
17.6 RECEIPT - GENERAL
Despite clauses 17.4 ("Receipt - postal") and 17.5 ("Receipt - fax"), if
Notices are received after 5:00pm in the place of receipt or on a
non-Business Day, they are taken to be received at 9:00am on the next
Business Day.
17.7 NOTICES TO OR FROM FACILITY AGENT
A Notice to or from a facility agent appointed under a syndicated facility
constitutes sufficient notice to or from the Creditors under that Facility
Agreement for the purposes of this deed.
17.8 WAIVER OF NOTICE PERIOD
The Majority Creditor may waive a period of notice required to be given by
an Obligor under any Transaction Document.
18 GENERAL
18.1 CONSENTS
Each Obligor agrees to comply with all conditions in any consent a
Creditor gives in connection with a Transaction Document if the Obligor
relies on that consent in performing its obligations under the Transaction
Documents.
18.2 CERTIFICATES
A Creditor may give an Obligor a certificate about an amount payable or
other matter in connection with a Transaction Document. Subject to any
applicable provision of the Transaction Documents specifying the form or
content of the certificate (including clause 6.2 of this deed), the
certificate is sufficient evidence of the amount or matter, unless it is
proved to be incorrect.
48
18.3 SET-OFF
At any time after a declaration is made under clause 10.2 of this deed,
the Creditor making the declaration (or on whose behalf a declaration was
made by a facility agent for a syndicate of financiers) may set off any
amount due for payment by the Creditor to an Obligor against any amount
due for payment by the Obligor to the Creditor under the Transaction
Document.
18.4 DISCRETION IN EXERCISING RIGHTS
A Creditor may exercise a right or remedy or give or refuse its consent
under a Transaction Document in any way it considers appropriate
(including by imposing conditions).
18.5 PARTIAL EXERCISING OF RIGHTS
If a Creditor does not exercise a right or remedy under a Transaction
Document fully or at a given time, the Creditor may still exercise it
later.
18.6 NO LIABILITY FOR LOSS
No Creditor is liable for loss caused by the exercise or attempted
exercise of, failure to exercise, or delay in exercising, a right or
remedy under a Transaction Document.
18.7 CONFLICT OF INTEREST
A Creditor's rights and remedies under any Transaction Document may be
exercised even if this involves a conflict of duty or the Creditor has a
personal interest in their exercise.
18.8 REMEDIES CUMULATIVE
The rights and remedies of a Creditor under any Transaction Document are
in addition to other rights and remedies given by law independently of the
Transaction Document.
18.9 INDEMNITIES
Any indemnity in a Transaction Document is a continuing obligation,
independent of each Obligor's other obligations under that Transaction
Document and continues after the Transaction Document ends. It is not
necessary for a Creditor to incur expense or make payment before enforcing
a right of indemnity under a Transaction Document.
18.10 RIGHTS AND OBLIGATIONS ARE UNAFFECTED
Rights given to a Creditor under a Transaction Document and each Obligor's
liabilities under it are not affected by anything which might otherwise
affect them at law.
18.11 INCONSISTENT LAW
To the extent permitted by law, each Transaction Document prevails to the
extent it is inconsistent with any law.
49
18.12 SUPERVENING LEGISLATION
Any present or future legislation which operates to vary the obligations
of any Obligor in connection with a Transaction Document with the result
that a Creditor's rights, powers or remedies are adversely affected
(including by way of delay or postponement) is excluded except to the
extent that its exclusion is prohibited or rendered ineffective by law.
18.13 VARIATION
A provision of a Transaction Document, or right created under it, may not
be varied except in writing signed by the party or parties to be bound
(whether directly or through a properly authorised agent or attorney). A
provision of this deed may only be amended by agreement between the
Obligors and each relevant Creditor.
18.14 WAIVER
A provision of this deed or right created under it may not be waived
except in writing by the party granting the waiver.
18.15 CONFIDENTIALITY
No Obligor or Creditor may disclose information provided by any party to a
Transaction Document that is not publicly available (including the
existence of or contents of any Transaction Document) except:
(a) to any person in connection with an exercise of rights or (subject
to compliance with clause 15) a dealing with rights or obligations
under a Transaction Document (including when a Creditor consults
other Creditors after an Event of Default or in connection with
preparatory steps such as negotiating with any potential assignee or
potential sub-participant or other person who is considering
contracting with the Creditor in connection with a Transaction
Document); or
(b) on a confidential basis, to officers, employees, legal and other
advisers and auditors of any Obligor or Creditor; or
(c) on a confidential basis, to any party to a Transaction Document or
any Related Entity of any party to a Transaction Document; or
(d) with the consent of the party who provided the information (such
consent not to be unreasonably withheld); or
(e) as required by any law or stock exchange or any Governmental Agency
(including for US and Dutch tax authorities).
Each Obligor and Creditor is taken to consent to disclosures made in
accordance with this clause 18.15.
18.16 NO RESPONSIBILITY FOR OTHER'S OBLIGATIONS
If a Creditor does not comply with its obligations under a Transaction
Document, this does not relieve any other Creditor or an Obligor of any of
50
their respective obligations. No party is responsible for the obligations
of another party.
18.17 FURTHER STEPS
Each Obligor agrees to do anything a Creditor reasonably asks (such as
obtaining consents, signing and producing documents and getting documents
completed and signed):
(a) to bind the Obligor and any other person intended to be bound under
a Transaction Document;
(b) to enable a Creditor to register any power of attorney or any
Transaction Document; or
(c) to show whether the Obligor is complying with this deed.
18.18 COUNTERPARTS
A Transaction Document may consist of a number of copies, each signed by
one or more parties to the document. If so, the signed copies are treated
as making up the one document.
18.19 GOVERNING LAW
Each Transaction Document is governed by the law in force in New South
Wales. Each Obligor submits to the non-exclusive jurisdiction of the
courts of that place.
18.20 SERVING DOCUMENTS
Subject to clause 18.21 ("Process Agent") and without preventing any other
method of service, any document in a court action may be served on a party
by being delivered to or left at that party's address for service of
notices under clause 17 ("Notices").
18.21 PROCESS AGENT
Each Non-Australian Obligor appoints James Hardie Australia Pty Limited
(ABN 12 084 635 558) of Level 3, 22 Pitt Street, Sydney NSW 2000
(Attention: The Company Secretary) as its agent for service of process to
receive any document in connection with the Transaction Documents. If for
any reason James Hardie Australia Pty Limited (ABN 12 084 635 558) ceases
to be able to act as process agent for the Non-Australian Obligor, the
Non-Australian Obligor must promptly appoint another person in New South
Wales to act as its process agent and must promptly notify each Creditor
(or, in the case of a syndicated facility, the facility agent) of that
appointment.
EXECUTED as a deed poll
51
JAMES HARIDE - COMMON TERMS DEED POLL
Schedule 1 - Verification Certificate (clause 3.1)
To: [NAME OF FINANCIER]
US$[-] BILATERAL FACILITY AGREEMENT DATED [-] BETWEEN JAMES HARDIE INTERNATIONAL
FINANCE B.V. AND [NAME OF FINANCIER] ("FACILITY AGREEMENT")
I [NAME] am a director of [James Hardie International Finance B.V. (with
corporate seat in Amsterdam) / James Hardie Industries N.V. (with corporate seat
in Amsterdam)] ("COMPANY"). I refer to the Facility Agreement. Definitions in
the Facility Agreement apply in this Certificate.
I CERTIFY as follows:
1 Attached to this Certificate is a complete and up to date copy of:
(a) the constituent documents of the Company; and
(b) a written resolution of the Managing Board and power of attorney in
the name of the Company, evidencing resolutions of the Managing
Board approving execution of those of the following documents to
which the Company is expressed to be a party, appointing attorneys
for that purpose and appointing Authorised Officers of the Company
for the purposes of those documents:
(i) the Facility Agreement;
(ii) the Common Terms Deed Poll; and
(iii) the Interim Guarantee.
Those resolutions and that power of attorney have not been amended,
modified or revoked and are in full force and effect.
2 Set out below are specimen signatures of the Authorised Officers of the
Company.
AUTHORISED OFFICERS(#)
Name Position Signature
* * ____________________
* * ____________________
* * ____________________
# One of the Authorised Officers must be the chief financial officer, treasurer
or principal accounting officer of the Group (see clause 9.7 of the Common Terms
Deed Poll).
DATED 2005
_________________________________
Name:
52
JAMES HARIDE - COMMON TERMS DEED POLL
Schedule 2 - Facility Nomination Letter
(clause 2.1)
To: [CREDITOR] [DATE]
JAMES HARDIE - COMMON TERMS DEED POLL - FACILITY NOMINATION LETTER
We refer to the James Hardie - Common Terms Deed Poll granted by ourselves (as
Borrower and Obligors' Agent) and the Guarantor (as defined therein) dated [ ]
2005 ("CTDP").
For the purposes of the CTDP, on and from the date of this letter:
1. we nominate the following agreement as a Facility Agreement:
NAME: [-]
DATE: [-]
PARTIES: [-]
2. the agreement, and each document named or referred to as a ["FINANCING
DOCUMENT"] in the agreement, is a Transaction Document for the purposes of
the CTDP; and
3. we nominate you as a "Creditor" pursuant to that Facility Agreement.
Please confirm your acceptance of the above nomination, and the benefit and
obligations of the CTDP, by signing and returning the attached copy of this
letter.
Clauses 1 ("Interpretation") and 18.19 ("Governing law") of the CTDP described
above apply to this letter as they were fully set out in this letter.
For and on behalf of
JAMES HARDIE INTERNATIONAL FINANCE B.V. AS OBLIGORS' AGENT (with corporate seat
in Amsterdam)
Authorised Officer: [NAME]
We accept and agree to the above nomination. We accept the benefit and
obligations of the CTDP, and we agree to be bound by the terms of that deed. We
confirm that we are [insert relevant category of PMP, eg a duly supervised bank
in the European Union, United States or Australia] and accordingly we are a PMP
within the meaning of the CTDP. In making this representation, we rely on, and
have not independently investigated, the definition of PMP set out in the CTDP.
For and on behalf of [INSERT NAME OF CREDITOR]
by its Authorised Officer
Name: Title:
53
JAMES HARIDE - COMMON TERMS DEED POLL
Schedule 3 - Form of New Borrower Deed Poll (clause 14.1)
DEED POLL
NEW BORROWER [INSERT NAME AND ABN/ACN OR OTHER REGISTRATION
NUMBER]
of: [INSERT ADDRESS]
Fax no:
Attention:
CTDP James Hardie - Common Terms Deed Poll by James Hardie
International Finance B.V. and others dated [##] 2005.
BY THIS DEED POLL the New Borrower described above, for the benefit of each
Creditor under the CTDP described above:
(a) irrevocably agrees that from the date of this deed poll it is a Borrower
under the CTDP;
(b) irrevocably agrees to comply with and be bound by all current and future
obligations of a Borrower or an Obligor under the CTDP or any other
Transaction Document to which it is a party;
(c) acknowledges having read a copy of the CTDP before signing this deed poll;
(d) gives, as at the date of this deed poll, all representations and
warranties on the part of a Borrower or an Obligor contained in the CTDP;
and
(e) acknowledges receiving valuable consideration for this deed poll.
Clauses 1 ("Interpretation") and 18.19 ("Governing law") of the CTDP described
above apply to this deed poll as if they were fully set out in this deed poll.
DATED [INSERT DATE]
EXECUTED as a deed poll
[INSERT EXECUTION CLAUSE FOR NEW BORROWER AND, IF IT IS A DUTCH COMPANY, ITS
CORPORATE SEAT]
54
JAMES HARIDE - COMMON TERMS DEED POLL
Schedule 4 - Form of Release Request
(clause 14.2)
[DATE]
To: [EACH RELEVANT CREDITOR]
JAMES HARDIE - COMMON TERMS DEED POLL - RELEASE REQUEST
We refer to the deed entitled James Hardie - Common Terms Deed Poll granted by
ourselves and certain of our subsidiaries dated [ ] 2005 ("CTDP").
(a) RELEASE REQUEST
We request each of you release [INSERT NAME OF RETIRING BORROWER]
("Retiring Borrower") from all liability under the CTDP pursuant to the
attached Deed of Release.
(b) REPRESENTATION AND WARRANTY
We represent and warrant that no Event of Default or Potential Event of
Default is continuing or will result from the release of the Retiring
Borrower.
Clause 1 of the CTDP applies to this Release Request as if it was fully set out
in this Release Request.
For and on behalf of For and on behalf of
JAMES HARDIE INDUSTRIES N.V. [INSERT THE NAME OF THE RETIRING BORROWER
(with corporate seat in Amsterdam) AND, IF IT IS A DUTCH COMPANY, ITS
CORPORATE SEAT]
Authorised Officer: [Name] Authorised Officer: [Name]
55
JAMES HARIDE - COMMON TERMS DEED POLL
Schedule 5 - Form of Deed of Release
(clause 14.2)
DEED OF RELEASE
PARTIES THE CREDITOR, the RETIRING BORROWER and the OBLIGORS' AGENT,
as described below.
CREDITOR [INSERT NAME AND ABN/ACN OR OTHER REGISTRATION NUMBER OF A
RELEVANT CREDITOR]
RETIRING BORROWER [INSERT NAME AND ABN/ACN OR OTHER REGISTRATION
NUMBER]
Obligors' [ ] on behalf of each Obligor other than the Retiring
Agent Borrower.
CTDP James Hardie - Common Terms Deed Poll by James Hardie
International Finance B.V. and others dated [ ] 2005.
The Creditor releases the Retiring Borrower described above from all liability
under the CTDP described above, with effect from [INSERT DATE OR "THE DATE OF
THIS DEED"].
Nothing in this deed affects the obligations of the Retiring Borrower described
above other than under the CTDP.
Each Obligor (other than the Retiring Borrower) consents to this release and
agrees that nothing in this deed affects its obligations to the Creditor or the
Creditor's rights in respect of the Obligors (other than the Retiring Borrower)
under a Transaction Document.
Clauses 1 ("Interpretation") and 18.19 ("Governing law") of the CTDP described
above apply to this deed as if they were fully set out in this deed.
DATED [INSERT DATE]
EXECUTED as a deed
[INSERT EXECUTION CLAUSES FOR (1) EACH CREDITOR, (2) THE OBLIGORS' AGENT (AND
ITS CORPORATE SEAT) ON BEHALF OF EACH OBLIGOR OTHER THAN THE RETIRING BORROWER,
AND (3) THE RETIRING BORROWER AND, IF IT IS A DUTCH COMPANY, ITS CORPORATE SEAT]
56
JAMES HARIDE - COMMON TERMS DEED POLL
Signing page
DATED: June 2005
SIGNED, SEALED AND )
DELIVERED by )
)
and )
)
as attorneys for JAMES HARDIE )
INTERNATIONAL FINANCE )
B.V. under power of attorney dated ) ....................................
)
in the presence of: )
)
)
....................................... ) ....................................
Signature of witness ) By executing this deed each attorney
) states that the attorney has
....................................... ) received no notice of revocation of
Name of witness (block letters) ) the power of attorney
SIGNED, SEALED AND )
DELIVERED by )
)
and )
)
as attorneys for JAMES HARDIE )
INDUSTRIES N.V. under power of ) ....................................
attorney dated )
)
in the presence of: )
)
)
....................................... ) ....................................
Signature of witness ) By executing this deed each attorney
) states that the attorney has
....................................... ) received no notice of revocation of
Name of witness (block letters) ) the power of attorney
57