EXHIBIT 2.25
MALLESONS STEPHEN JAQUES
Form of James Hardie - Guarantee Deed
Dated #1#
James Hardie Industries N.V. ("GUARANTOR")
#2# ("FINANCIER")
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
FORM OF JAMES HARDIE - GUARANTEE DEED
Contents
DETAILS 1
GENERAL TERMS 2
1 INTERPRETATION 2
1.1 Definitions 2
1.2 References to certain general terms 7
1.3 Number 7
1.4 Headings 8
2 CONSIDERATION 8
3 TERMINATION 8
4 GUARANTEE AND INDEMNITY 8
4.1 Guarantee 8
4.2 Indemnity 8
5 INTEREST 9
5.1 Obligation to pay interest 9
5.2 Compounding 9
5.3 Interest following judgment 9
6 EXTENT OF GUARANTEE AND INDEMNITY 10
7 RIGHTS OF THE FINANCIER ARE PROTECTED 10
8 GUARANTOR'S RIGHTS 11
8.1 Guarantor's rights are suspended 11
8.2 Guarantor's right of proof limited 12
9 POWER OF ATTORNEY 12
9.1 Appointment 12
9.2 Powers 12
9.3 Application of insolvency dividends 12
10 PAYMENTS 13
10.1 Manner of payment 13
10.2 Currency of payment 13
11 APPLICATION OF PAYMENTS 13
11.1 Application of money 13
11.2 Order of payment 13
11.3 Suspense account 13
11.4 Remaining money 14
11.5 Credit from date of receipt 14
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12 WITHHOLDING TAX 14
12.1 Payments by Guarantor 14
12.2 Tax credit 14
13 INDIRECT TAXES 15
14 COSTS 15
14.1 What the Guarantor agrees to pay 15
14.2 Currency conversion on judgment debt 16
15 REINSTATEMENT OF RIGHTS 16
16 NO MERGER 16
17 DEALINGS 17
17.1 Dealings by the Guarantor 17
17.2 Dealings by Financier 17
18 NOTICES 17
18.1 Form 17
18.2 Demand under guarantee 17
18.3 Delivery 17
18.4 When effective 18
18.5 Receipt - postal 18
18.6 Receipt - fax 18
19 GENERAL 18
19.1 Consents 18
19.2 Prompt performance 18
19.3 Certificates 18
19.4 Set-off 18
19.5 Discretion in exercising rights 19
19.6 Partial exercising of rights 19
19.7 Indemnities 19
19.8 Inconsistent law 19
19.9 Supervening legislation 19
19.10 Remedies cumulative 19
19.11 Time of the essence 19
19.12 Variation and waiver 19
19.13 Confidentiality 19
19.14 Further steps 20
19.15 Counterparts 20
19.16 Governing law 20
19.17 Serving documents 20
19.18 Process Agent 21
SCHEDULE 1 - FORM OF FINANCE DOCUMENT NOMINATION LETTER 22
SIGNING PAGE 23
ii
FORM OF JAMES HARDIE - GUARANTEE DEED
Details
INTERPRETATION - definitions are in clause 1.
PARTIES GUARANTOR AND FINANCIER
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
FINANCIER Name #2
ABN #3#
Address #4#
Fax #5#
Attention #6#
DATE OF DEED See Signing page
1
FORM OF JAMES HARDIE - GUARANTEE DEED
General terms
1 INTERPRETATION
1.1 DEFINITIONS
These meanings apply unless the contrary intention appears:
AUTHORISED OFFICER means:
(a) in the case of the Financier, a director or secretary, or an officer
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
nominated by the Financier as an Authorised Officer for the purposes
of this deed; and
(b) in the case of the Guarantor, a person appointed by the Guarantor
and notified to the Financier as an Authorised Officer for the
purposes of this deed, and whose specimen signature is provided with
such notification to the Financier.
BORROWER means James Hardie International Finance B.V.
BUSINESS DAY has the meaning given to that term in the Common Terms Deed
Poll.
COMMON TERMS DEED POLL means the deed poll entitled James Hardie - Common
Terms Deed Poll dated on or about the date of this deed by the Guarantor
and the Borrower in favour of the Creditors (as therein defined).
COSTS means costs, fees, disbursements, charges and expenses, including,
without limitation, where the Guarantor is liable to pay or reimburse the
Costs, those incurred in connection with advisers and, unless such Costs
are incurred in connection with the enforcement of this deed against the
Guarantor, only for an amount and on a basis previously agreed to in
writing by the Guarantor.
DEBTOR means the person or persons primarily liable to the Financier under
the Finance Documents.
DEFAULT RATE means LIBOR plus 2% per annum. For the purpose of this
definition, the interest is calculated as if the overdue amount is a cash
advance with interest periods beginning and ending on the first and last
days respectively of each calendar month (and including both days),
provided that the first interest period begins on and includes the due
date.
DETAILS means the section of this deed headed "Details".
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EXCLUDED TAX means:
(a) a Tax imposed by any jurisdiction on or assessed against the
Financier as a consequence of the Financier 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 this deed or another document referred
to in this deed (without the allowance of a deduction);
(ii) that is imposed as a result of the Financier being considered
a resident or organised or doing business in that jurisdiction
solely as a result of it having the benefit of this deed or
being a party to a transaction contemplated by this deed; or
(b) a Tax which would not be required to be deducted by the Guarantor
if, before the Guarantor makes a relevant payment, the Financier
provided the Guarantor with any of its name, address, registration
number or similar details or any relevant tax exemption or similar
details.
FINANCE DOCUMENT NOMINATION LETTER means a letter substantially in the
form set out in schedule 1 ("Finance Document Nomination Letter").
FINANCE DOCUMENTS means:
(a) the agreement entitled James Hardie - Term Facility Agreement dated
on or about the date of this deed between the Borrower and the
Financier;
(b) the agreement entitled James Hardie - 364-day Facility Agreement
dated on or about the date of this deed between the Borrower and the
Financier; and
(c) each agreement which is nominated as a "Finance Document" in a
Finance Document Nomination Letter.
FINANCE GUARANTEE has the meaning given to that term in the Common Terms
Deed Poll.
FINANCIER means the person so described in the Details and includes its
successors and assigns.
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 James Hardie 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.
GUARANTEED MONEY means all amounts that:
(a) at any time;
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(b) for any reason or circumstance in connection with any agreement,
transaction, instrument (whether or not negotiable), document,
event, act, omission, matter or thing whatsoever;
(c) whether at law or otherwise; and
(d) whether or not of a type within the contemplation of the Guarantor
or the Financier at the date of this deed,
are payable, are owing but not currently payable, are contingently owing,
or remain unpaid, by a Debtor to the Financier under or in connection with
the Finance Documents.
This definition applies:
(i) irrespective of the capacity in which the Debtor or the
Financier became entitled to the amount concerned;
(ii) irrespective of the capacity in which the Debtor or the
Financier became liable in respect of the amount concerned;
(iii) whether the Debtor or the Financier is liable as principal
debtor, as surety or otherwise;
(iv) whether the Debtor is liable alone, or together with another
person;
(v) even if the Debtor owes an amount or obligation to the
Financier because it was assigned to the Financier, whether or
not:
(A) the assignment was before, at the same time as, or after
the date of this deed; or
(B) the Debtor consented to or was aware of the assignment;
or
(C) the assigned obligation was secured;
(vi) even if this deed was assigned to the Financier, whether or
not:
(A) the Debtor or the Guarantor consented to or was aware of
the assignment; or
(B) any of the Guaranteed Money was previously unsecured; or
(vii) if the Guarantor is a trustee, whether or not it has a right
of indemnity from the trust fund.
GUARANTOR means the person so described in the Details.
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INDIRECT TAX means any goods and services tax, consumption tax, value
added tax or any tax of a similar nature.
INSOLVENCY EVENT means, in respect of a person, the occurrence in respect
of that person of any event referred to in paragraphs (a) to (h) of the
definition of "Insolvent" and, for the avoidance of doubt, includes a
Winding Up.
A company is INSOLVENT if it:
(a) is generally not paying, or admits in writing its inability to pay,
its debts as they become due;
(b) 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, without limitation, 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));
(c) makes an assignment for the benefit of its creditors;
(d) 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;
(e) consents to the appointment of an administrator;
(f) is adjudicated as insolvent or to be liquidated;
(g) is subject to Winding Up; or
(h) takes corporate action for the purpose of any of the foregoing,
and INSOLVENCY has a cognate meaning.
JAMES HARDIE GROUP means the Guarantor and its Subsidiaries and JAMES
HARDIE GROUP MEMBER means any of them.
LIBOR means, in relation to any overdue amount:
(a) the applicable British Bankers' Association Interest Settlement Rate
for the currency in which the overdue amount is payable ("DUE
CURRENCY") and the relevant period displayed on the appropriate page
of the Reuters screen (but if the agreed page is replaced or service
ceases to be available, the Financier may specify another page or
service displaying the appropriate rate after consultation with the
Guarantor) ("SCREEN RATE"); or
(b) (if no Screen Rate is available for the Due Currency and the
interest period of that overdue amount) the arithmetic mean of the
rates (rounded upwards to four decimal places) as supplied to the
Financier
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at its request quoted by the principal London offices of at least
three leading international banks chosen by the Financier in
consultation with the Guarantor to other leading international banks
in the London interbank market,
as of 11.00 am (London time) on the day two Business Days before the first
day of an interest period for which the interest rate is to be determined
for the offering of deposits in the Due Currency and for a period
comparable to the interest period for the overdue amount.
RELATED ENTITY has the meaning it has in the Corporations Act.
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.
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 the Financier) 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.
US$, USD or US DOLLARS means the lawful currency of the United States of
America.
WINDING UP means, in respect of a company, the occurrence of any of the
following:
(a) an order is made that it be wound up;
(b) appointment of a liquidator to it; or
(c) appointment of a provisional liquidator to it and the provisional
liquidator is required to admit all debts to proof or pay all debts
capable of being admitted to proof proportionately.
In respect of a person that is established under Dutch law, WINDING UP
includes, without limitation, its dissolution (ontbinding), the
declaration of its bankruptcy (faillissement) and the (provisional)
granting of suspension of payments ((voorlopige) surseance van betaling)
to it.
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1.2 REFERENCES TO CERTAIN GENERAL TERMS
Unless the contrary intention appears, a reference in this deed to:
(a) a group of persons is a reference to any two or more of them
collectively and to each of them individually;
(b) an agreement, representation or warranty in favour of two or more
persons is for the benefit of them collectively and each of them
individually;
(c) an agreement, representation or warranty by two or more persons
binds them collectively and each of them individually but an
agreement, representation or warranty by the Financier binds the
Financier 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 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) the word "person" includes an individual, a firm, a body corporate,
a partnership, a joint venture, an unincorporated association and
any Government Agency;
(h) a particular person includes a reference to the person's executors,
administrators, successors, substitutes (including persons taking by
novation) and assigns;
(i) 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;
(j) the Corporations Act is a reference to the Corporations Act 2001 of
Australia; and
(k) the words "to prove for", "prove" and "right of proof", when used in
connection with a Winding Up or another Insolvency proceeding under
Dutch law include, without limitation, "filing", "filing for
verification purposes" and "verification procedure", as the context
may require.
1.3 NUMBER
The singular includes the plural and vice versa.
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1.4 HEADINGS
Headings (including those in brackets at the beginning of paragraphs) are
for convenience only and do not affect the interpretation of this deed.
2 CONSIDERATION
The Guarantor acknowledges incurring obligations and giving rights under
this deed for valuable consideration received and to be received from the
Financier.
3 TERMINATION
(a) This deed terminates immediately and automatically upon the
Financier delivering to the Guarantor or its nominee a written
acknowledgment that the Financier accepts the benefit and
obligations of the Finance Guarantee and agrees to be bound by its
terms.
(b) The termination of this deed does not affect any right accrued prior
to the date of termination.
4 GUARANTEE AND INDEMNITY
4.1 GUARANTEE
(a) The Guarantor unconditionally and irrevocably guarantees payment to
the Financier of the Guaranteed Money. If the Debtor does not pay
the Guaranteed Money on time and in accordance with the Finance
Documents then, subject to clause 4.1(b), the Guarantor agrees to
pay the Guaranteed Money to the Financier on demand from the
Financier.
(b) A demand on the Guarantor under this guarantee:
(i) may be made only if the Financier has first made a demand on
the Debtor and the demand is not satisfied within 2 Business
Days;
(ii) may be made at any time and from time to time; and
(iii) must be made in writing in accordance with clause 18
("Notices").
4.2 INDEMNITY
The Guarantor indemnifies the Financier against any liability or loss
arising, and any Costs it suffers or incurs:
(a) if the Debtor does not, or is unable to, pay the Guaranteed Money in
accordance with the Finance Documents; or
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(b) if an obligation the Debtor would otherwise have to pay the
Guaranteed Money (or which would have been Guaranteed Money had it
not been irrecoverable) is found to be unenforceable, void or
voidable; or
(c) if an obligation the Guarantor would otherwise have under clause 4.1
("Guarantee") is found to be unenforceable; or
(d) if the Financier is obliged, or agrees, to pay an amount to a
trustee in bankruptcy or liquidator (of an Insolvent person) in
connection with a payment by the Guarantor or the Debtor. (For
example, the Financier may have to, or may agree to, pay interest on
the amount); or
(e) if the Guarantor defaults under the guarantee.
The Guarantor agrees to pay amounts due under this indemnity on demand
from the Financier.
5 INTEREST
5.1 OBLIGATION TO PAY INTEREST
The Guarantor agrees to pay interest at the Default Rate on:
(a) any part of the Guaranteed Money which is due for payment but which
is not otherwise incurring interest; and
(b) any amount payable by it under this deed (other than under clause
4.1 ("Guarantee")) which is not paid on the due date for payment.
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 Guarantor agrees to pay interest under this clause on demand from the
Financier.
5.2 COMPOUNDING
Interest payable under clause 5.1 ("Obligation to pay interest") which is
not paid when due for payment may be added to the overdue amount by the
Financier on the last Business Day of each calendar month. Interest is
payable on the increased overdue amount at the Default Rate in the manner
set out in clause 5.1 ("Obligation to pay interest").
5.3 INTEREST FOLLOWING JUDGMENT
If a liability becomes merged in a judgment, the Guarantor agrees to pay
interest on the amount of that liability as an independent obligation.
This interest:
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(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 Guarantor agrees to pay interest under this clause on demand from the
Financier.
6 EXTENT OF GUARANTEE AND INDEMNITY
(a) The guarantee in clause 4.1 ("Guarantee") is a continuing obligation
despite any intervening payment, settlement or other thing and
extends to all of the Guaranteed Money.
(b) Subject to compliance by the Financier with clauses 4.1(b)
("Guarantee") and 18 ("Notices"), the Guarantor waives any right it
has of first requiring the Financier to commence proceedings or
enforce any other right against the Debtor or any other person
before claiming from the Guarantor under this guarantee and
indemnity.
7 RIGHTS OF THE FINANCIER ARE PROTECTED
Rights given to the Financier under this guarantee and indemnity, and the
Guarantor's liabilities under it, are not affected by any act or omission
of the Financier or any other person or by any act, other matter or thing
whatsoever, whether negligent or not. For example, those rights and
liabilities are not affected by:
(a) any act or omission:
(i) varying or replacing any arrangement under which the
Guaranteed Money is expressed to be owing, such as by
increasing a facility limit or extending the term;
(ii) releasing or discharging the Debtor (including, without
limitation, discharge by operation of law) or giving the
Debtor a concession (such as more time to pay);
(iii) releasing any person who gives a guarantee or indemnity in
connection with any of the Debtor's obligations;
(iv) releasing, losing the benefit of, or not obtaining any
Security Interest or negotiable instrument;
(v) by which the obligations of any person who guarantees any of
the Debtor's obligations (including under this guarantee and
indemnity) may not be enforceable;
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(vi) by which any person who was intended to guarantee any of the
Debtor's obligations does not do so, or does not do so
effectively;
(vii) by which a person who is a co-surety or co-indemnifier for
payment of the Guaranteed Money is discharged under an
agreement or by operation of law;
(viii) by which any Security Interest which could be registered is
not registered,
or any other thing causing any prejudice (including, but not limited
to, material prejudice) to any person;
(b) a person dealing in any way with a Security Interest, guarantee,
indemnity, judgment or negotiable instrument;
(c) the death, mental or physical disability, incapacity, Insolvency or
any legal limitation of any person including the Guarantor or the
Debtor;
(d) changes in the membership, name or business of any person;
(e) the Debtor opening an account with the Financier;
(f) acquiescence or delay by the Financier or any other person;
(g) an assignment of rights or a novation in connection with the
Guaranteed Money;
(h) the acceptance of the repudiation of, or termination of, any Finance
Document or any other document or agreement;
(i) any payment to the Financier, including any payment which at the
payment date or at any time after the payment date is, in whole or
in part, illegal, void, voidable, avoided or unenforceable.
This clause 7 applies regardless of whether the Guarantor is aware of, has
consented to or is given notice of any act, omission, matter or thing
referred to in this clause 7. This clause 7 does not limit the obligation
of the Guarantor under this deed.
8 GUARANTOR'S RIGHTS
8.1 GUARANTOR'S RIGHTS ARE SUSPENDED
As long as there is any Guaranteed Money, the Guarantor may not, without
the Financier's consent:
(a) reduce its liability under this guarantee and indemnity by claiming
that it or the Debtor or any other person has a right of set-off or
counterclaim against the Financier; or
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(b) exercise any legal right to claim to be entitled to the benefit of
another guarantee, indemnity or Security Interest that secures
amounts including the Guaranteed Money or any other amount payable
under this guarantee and indemnity (for example, the Guarantor may
not try to enforce or require the enforcement of any Security
Interest the Financier has taken that secures amounts including the
Guaranteed Money); or
(c) claim an amount from the Debtor, or another guarantor of the
Guaranteed Money, under a right of indemnity; or
(d) claim an amount in the Insolvency of the Debtor or of another
guarantor of the Guaranteed Money.
8.2 GUARANTOR'S RIGHT OF PROOF LIMITED
The Guarantor agrees not to exercise in its capacity as a guarantor under
this deed a right of proof after an event occurs relating to the
Insolvency of the Debtor or another guarantor of the Guaranteed Money
independently of an attorney appointed under clause 9.1 ("Appointment").
9 POWER OF ATTORNEY
9.1 APPOINTMENT
The Guarantor irrevocably appoints the Financier and each of its
Authorised Officers individually as its attorney and agrees to formally
approve all action taken by an attorney under clause 9.2 ("Powers").
9.2 POWERS
Each attorney appointed under clause 9.1 ("Appointment") may:
(a) do anything which the Guarantor may lawfully do to exercise its
right of proof after an Insolvency Event occurs in respect of the
Debtor or any other guarantor of the Debtor's obligations. (These
things may be done in the Guarantor's name or the attorney's name
and they include signing and delivering documents, taking part in
legal proceedings and receiving any dividend arising out of the
right of proof); and
(b) delegate its powers (including this power) and revoke a delegation;
and
(c) exercise its powers even if this involves a conflict of duty and
even if it has a personal interest in doing so.
9.3 APPLICATION OF INSOLVENCY DIVIDENDS
The attorney need not account to the Guarantor for any dividend received
on exercising the right of proof under clause 9.2(a) ("Powers") except to
the extent that any dividend remains after the Financier has received all
of the Guaranteed Money and all other amounts payable under this guarantee
and indemnity.
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10 PAYMENTS
10.1 MANNER OF PAYMENT
The Guarantor agrees to make payments under this guarantee and indemnity:
(a) in full without set-off or counterclaim and without any deduction in
respect of Taxes unless prohibited by law; and
(b) if the payment relates to the Guaranteed Money, in the currency in
which the payment is due, and otherwise in US Dollars in immediately
available funds.
10.2 CURRENCY OF PAYMENT
The Guarantor waives any right it has in any jurisdiction to pay an amount
other than in the currency in which it is due. However, if the Financier
receives an amount in a currency other than that in which it is due:
(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 Guarantor 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.
11 APPLICATION OF PAYMENTS
11.1 APPLICATION OF MONEY
The Financier may apply money paid by the Debtor, the Debtor's estate, the
Guarantor or otherwise towards satisfaction of the Guaranteed Money and
other money payable under this deed in the manner it sees fit.
11.2 ORDER OF PAYMENT
The Financier may use money received under this deed towards paying any
part of the Guaranteed Money the Financier chooses. This applies even if
that part only falls due after the Financier gives a notice of demand.
11.3 SUSPENSE ACCOUNT
The Financier may place in an interest bearing suspense account any
payment it receives towards satisfaction of the Guaranteed Money (and any
net interest on that payment after tax) for as long as it thinks prudent
and need not apply the payment or net interest towards satisfying the
Guaranteed Money or other money payable under this deed.
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11.4 REMAINING MONEY
The Financier agrees to pay any money remaining after the Guaranteed Money
is paid either to the Guarantor (which the Financier may do by paying it
into an account in the Guarantor's name) or to another person entitled to
it. In doing so, it does not incur any liability to the Guarantor. The
Financier is not required to pay the Guarantor interest on any money
remaining after the Guaranteed Money is paid.
11.5 CREDIT FROM DATE OF RECEIPT
The Guarantor is only credited with money from the date the Financier
actually receives it.
12 WITHHOLDING TAX
12.1 PAYMENTS BY GUARANTOR
If a law requires the Guarantor to deduct or withhold an amount in respect
of Taxes (other than Indirect Taxes) in respect of a payment under this
deed such that the Financier would not actually receive on the due date
the full amount provided for under this deed, then:
(a) the Guarantor 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 Guarantor 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 paragraph (c), the Financier 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.
12.2 TAX CREDIT
If and to the extent that the Financier 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 the Guarantor to pay
any additional amount pursuant to clause 12.1 ("Payments by Guarantor"),
the Financier shall:
(a) give notice thereof to the Guarantor and take steps to obtain that
credit, rebate or benefit; and
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(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 Guarantor such amount of the credit,
rebate or benefit as the Financier shall, in its opinion (acting
reasonably), have determined to be attributable to the deduction or
withholding. In complying with this clause, the Financier is not
required to disclose to the Guarantor information about its tax
affairs or order them in a particular way.
13 INDIRECT TAXES
(a) All payments to be made by the Guarantor under or in connection with
this deed 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 Guarantor
makes the payment:
(i) it must pay to the Financier an additional amount equal to
that payment (or part) multiplied by the appropriate rate of
Indirect Tax; and
(ii) the Financier will promptly provide to the Guarantor a tax
invoice complying with the relevant law relating to that
Indirect Tax.
(b) Where this deed requires the Guarantor to reimburse the Financier
for any Costs or expenses, the Guarantor shall also at the same time
pay and indemnify the Financier against all Indirect Tax incurred by
the Financier in respect of the Costs or expenses save to the extent
that the Financier is entitled to repayment or credit in respect of
the Indirect Tax. The Financier will promptly provide to the
Guarantor a tax invoice complying with the relevant law relating to
that Indirect Tax.
14 COSTS
14.1 WHAT THE GUARANTOR AGREES TO PAY
The Guarantor agrees to pay or reimburse the Financier on demand for:
(a) the Financier's reasonable Costs in connection with:
(i) the registration of, and payment of Taxes on, this deed; and
(ii) giving and considering consents, waivers and releases
requested by the Guarantor in connection with this deed;
(b) the Financier's Costs in exercising, enforcing or preserving rights
against the Guarantor under this deed; and
(c) Taxes and fees (including registration fees) and fines and penalties
in respect of fees paid, or that the Financier reasonably believes
are
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payable, in connection with this deed or a payment or receipt or any
other transaction involving the Guarantor contemplated by this deed.
However, the Guarantor need not pay a fine or penalty in connection
with Taxes or fees to the extent that it has placed the Financier in
sufficient cleared funds for the Financier to be able to pay the
Taxes or fees by the due date.
14.2 CURRENCY CONVERSION ON JUDGMENT DEBT
If a judgment, order or proof of debt for an amount payable by the
Guarantor under this deed is expressed in a currency other than the
currency in which the amount is due under this deed, then the Guarantor
indemnifies the Financier against:
(a) any difference arising from converting the other currency if the
rate of exchange used by the Financier under clause 10.2 ("Currency
of payment") for converting currency when it receives a payment in
the other currency is less favourable to the Financier than the rate
of exchange used for the purpose of the judgment, order or
acceptance of proof of debt; and
(b) the Costs of conversion.
15 REINSTATEMENT OF RIGHTS
Under law relating to Insolvency Events, a person may claim that a
transaction (including a payment) in connection with this guarantee and
indemnity or the Guaranteed Money is void or voidable. If a claim is made
and upheld, conceded or compromised, then:
(a) the Financier is immediately entitled as against the Guarantor to
the rights in respect of the Guaranteed Money to which it was
entitled immediately before the transaction; and
(b) on request from the Financier, the Guarantor agrees to do anything
(including signing any document) reasonably required to restore to
the Financier the guarantee and indemnity and any Security Interest
held by it from the Guarantor immediately before the transaction.
This clause applies whether or not the Financier knew, or ought to have
known, that the transaction would be void or voidable.
16 NO MERGER
This deed does not merge with or adversely affect, and is not adversely
affected by, any of the following:
(a) any Security Interest, guarantee or other right or remedy to which
the Financier is entitled; or
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(b) a judgment which the Financier obtains against the Guarantor, the
Debtor or any other person in connection with the Guaranteed Money.
The Financier may still exercise its rights under this deed as well as
under the judgment, Security Interest or right or remedy.
17 DEALINGS
17.1 DEALINGS BY THE GUARANTOR
The Guarantor may not assign or otherwise deal with its rights under this
deed or allow any interest in it to arise or be varied, without the
consent of the Financier.
17.2 DEALINGS BY FINANCIER
The Financier may assign or otherwise deal with its rights under this deed
in any way it considers appropriate. If the Financier does this, the
Guarantor may not claim against any assignee (or any other person who has
an interest in this deed) any right of set-off or other rights it has
against the Financier.
18 NOTICES
18.1 FORM
Unless expressly stated otherwise in this deed, all demands, notices,
certificates, consents, approvals, waivers and other communications in
connection with this deed ("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 or, if the recipient has notified otherwise,
then marked for attention in the way last notified.
18.2 DEMAND UNDER GUARANTEE
Any demand made by the Financier under the guarantee and indemnity must
comply with the following requirements (in addition to those contained in
clause 18.1 ("Form")):
(a) clearly identify the Finance Document under which the Guaranteed
Money is payable by the Debtor;
(b) state the amount of the Guaranteed Money demanded and describe in
reasonably adequate detail the nature of the unpaid obligation; and
(c) state the date on which demand was made on the Debtor and certify
that the Guaranteed Money remains unpaid at the date of the demand.
18.3 DELIVERY
Notices must be:
(a) delivered to the address set out or referred to in the Details; or
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(b) sent by prepaid post (airmail if appropriate) to the address set out
or referred to in the Details; or
(c) sent by fax to the fax number set out or referred to in the Details.
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.
18.4 WHEN EFFECTIVE
Notices take effect from the time they are received unless a later time is
specified in them.
18.5 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).
18.6 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.
19 GENERAL
19.1 CONSENTS
The Guarantor agrees to comply with all conditions in any consents given
in connection with this deed if the Guarantor relies on that consent in
performing its obligations under this deed.
19.2 PROMPT PERFORMANCE
If this deed specifies when the Guarantor agrees to perform an obligation,
it agrees to perform it by the time specified. The Guarantor agrees to
perform all other obligations promptly.
19.3 CERTIFICATES
The Financier may give the Guarantor a certificate about an amount payable
or other matter in connection with this deed or a Finance Document. The
certificate is sufficient evidence of the amount or matter, unless it is
proved to be incorrect.
19.4 SET-OFF
The Financier may set off any amount due for payment by the Financier to
the Guarantor against any amount due for payment by the Guarantor to the
Financier under this deed. This does not restrict any right of insolvency
set-off which may arise under Dutch law.
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19.5 DISCRETION IN EXERCISING RIGHTS
The Financier may exercise a right or remedy or give or refuse its consent
in any way it considers appropriate (including by imposing conditions),
unless this deed expressly states otherwise.
19.6 PARTIAL EXERCISING OF RIGHTS
If the Financier does not exercise a right or remedy fully or at a given
time, the Financier may still exercise it later.
19.7 INDEMNITIES
The indemnities in this deed are continuing obligations, independent of
the Guarantor's other obligations under this deed and continue after this
deed ends. It is not necessary for the Financier to incur expense or make
payment before enforcing a right of indemnity under this deed.
19.8 INCONSISTENT LAW
To the extent permitted by law, this deed prevails to the extent it is
inconsistent with any law.
19.9 SUPERVENING LEGISLATION
Any present or future legislation which operates to vary the obligations
of the Guarantor in connection with this deed with the result that the
Financier'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.
19.10 REMEDIES CUMULATIVE
The rights and remedies of the Financier under this deed are in addition
to other rights and remedies given by law independently of this deed.
19.11 TIME OF THE ESSENCE
Time is of the essence in this agreement in respect of an obligation of
the Guarantor to pay money.
19.12 VARIATION AND WAIVER
Unless this deed expressly states otherwise, a provision of this deed, or
right created under it, may not be waived or varied except in writing
signed by the Guarantor and the Financier.
19.13 CONFIDENTIALITY
Neither the Guarantor nor the Financier may disclose information provided
by one of them to the other that is not publicly available (including the
existence of or contents of this deed or any Finance Document) except:
(a) to any person in connection with an exercise of rights or (subject
to compliance with clause 17 ("Dealings")) a dealing with rights or
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obligations under this deed (including when the Financier consults
other lenders to any member of the James Hardie Group 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 Financier in connection with a
Finance Document); or
(b) on a confidential basis, to officers, employees, legal and other
advisers and auditors of the Guarantor or the Financier; or
(c) on a confidential basis, to any party to a Finance Document or any
Related Entity of any party to a Finance 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 Government Agency.
The Guarantor and the Financier are taken to consent to disclosures made
in accordance with this clause 19.13.
19.14 FURTHER STEPS
The Guarantor agrees to do anything reasonably required by the Financier
(such as obtaining consents, signing and producing documents, producing
receipts and getting documents completed and signed):
(a) to enable the Financier to exercise its rights in connection with
this deed;
(b) to show whether the Guarantor is complying with this deed.
19.15 COUNTERPARTS
This deed may consist of a number of copies, each signed by one or more
parties to the deed. If so, the signed copies are treated as making up the
one document.
19.16 GOVERNING LAW
This deed is governed by the law in force in New South Wales. The
Guarantor and the Financier submit to the non-exclusive jurisdiction of
the courts of New South Wales.
19.17 SERVING DOCUMENTS
Without preventing any other method of service any document in a court
action may be served on the Guarantor or the Financier by being delivered
or left at that person's address for service of notices under clause 18.3
("Delivery").
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19.18 PROCESS AGENT
The Guarantor 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 this deed. 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 Guarantor, the Guarantor must promptly appoint another person in New
South Wales to act as its process agent and must promptly notify the
Financier of that appointment and the address and other contact details of
the new process agent.
EXECUTED as a deed
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FORM OF JAMES HARDIE - GUARANTEE DEED
Schedule 1 - Form of Finance Document
Nomination Letter
[DATE]
To: [FINANCIER]
JAMES HARDIE - GUARANTEE DEED - FINANCE DOCUMENT NOMINATION LETTER
We refer to the James Hardie - Guarantee Deed between James Hardie Industries
N.V. (with corporate seat in Amsterdam) and [FINANCIER] dated [ ] 2005
("GUARANTEE").
For the purposes of the Guarantee, on and from the date of this letter we
nominate the following document as a Finance Document for the purposes of the
Guarantee:
NAME: [-]
DATE: [-]
PARTIES: [-]
Please confirm your acceptance of the above nomination, and the benefit and
obligations of the Guarantee in respect of the nominated document(s), by signing
and returning the attached copy of this letter.
Clauses 1 ("Interpretation") and 19.16 ("Governing law") of the Guarantee apply
to this letter as they were fully set out in this letter.
For and on behalf of
JAMES HARDIE INDUSTRIES N.V.
Authorised Officer: [NAME]
We accept and agree to the above nomination. We accept the benefit and
obligations of the Guarantee in respect of the nominated document(s), and we
agree to be bound by the terms of that deed in respect of that (those)
document(s).
For and on behalf of
[INSERT NAME OF FINANCIER]
by its Authorised Officer
Name:
Title:
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FORM OF JAMES HARDIE - GUARANTEE DEED
Signing page
DATED: #1#
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
Name of witness (block letters) ) that the attorney has received no notice of
) revocation of the power of attorney
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