.
.
.
EXHIBIT 2.5
II. SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT, DATED OCTOBER 22, 2001
Second Amendment to Note Purchase Agreement by and among ▇▇▇▇▇
▇▇▇▇▇▇ U.S. Funding, Inc. (the "Issuer"), ▇▇▇▇▇ ▇▇▇▇▇▇ N.V. (the
"Guarantor"), ▇▇▇▇▇ ▇▇▇▇▇▇ Aust. Investco Pty. Limited (the "First
Subsidiary Guarantor"), ▇▇▇▇▇ ▇▇▇▇▇▇ Australia Finance Pty. Limited (the
"Second Subsidiary Guarantor"), ▇▇▇▇▇ ▇▇▇▇▇▇ International Finance
B.V. (the "Third Subsidiary Guarantor") and the Noteholders....................... 15
Guaranty, by ▇▇▇▇▇ ▇▇▇▇▇▇ International Finance B.V., in favor of the
Noteholders....................................................................... 16
Secretary's Certificate of ▇▇▇▇▇ ▇▇▇▇▇▇ U.S. Funding, Inc......................... 17
(a) Resolutions of the Board of Directors (attached as Exhibit A)
Officer's Certificate of ▇▇▇▇▇ ▇▇▇▇▇▇ U.S. Funding, Inc........................... 18
Opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP to the Noteholders......................... 19
Opinion of ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ to the Noteholders............................... 20
Opinion of DeBrauw Blackstone Westbroek P.C. to the Noteholders................... 21
Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ to the Noteholders............................ 22
Good Standing Certificate of ▇▇▇▇▇ ▇▇▇▇▇▇ U.S. Funding, Inc....................... 23
Evidence of Consent to Receive Service of Process pursuant to
Section 4.12 of the Note Purchase Agreement....................................... 24
-2-
SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT
This Second Amendment to Note Purchase Agreement (the "Agreement") is made
and entered into as of this 22nd day of October, 2001, by and among ▇▇▇▇▇ ▇▇▇▇▇▇
U.S. FUNDING, INC., a Nevada corporation ("Issuer"), ▇▇▇▇▇ ▇▇▇▇▇▇ N.V., a
company incorporated under the laws of the Netherlands with its corporate seat
in Amsterdam, the Netherlands (the "Guarantor"), ▇▇▇▇▇ ▇▇▇▇▇▇ AUST. INVESTCO
PTY. LIMITED, a company organized under the laws of Australia (the "First
Subsidiary Guarantor"), ▇▇▇▇▇ ▇▇▇▇▇▇ AUSTRALIA FINANCE PTY. LIMITED, a company
organized under the laws of Australia (the "Second Subsidiary Guarantor"), ▇▇▇▇▇
▇▇▇▇▇▇ INTERNATIONAL FINANCE B.V., a company incorporated under the laws of the
Netherlands with its corporate seat in Amsterdam, the Netherlands (the "Third
Subsidiary Guarantor"), and the holders of notes listed on the signature pages
hereof under the heading "Noteholders" (each a "Noteholder" and, collectively,
the "Noteholders") with reference to the following facts. Capitalized terms used
herein which are not otherwise defined shall have the meaning ascribed to them
in the Purchase Agreement (defined below).
A. Issuer presently has obligations under Guaranteed Senior Notes (the
"Notes") in the aggregate principal amount of $225,000,000 issued to the
purchasers under those certain Note Purchase Agreements with Issuer and the
Guarantor, each dated as of November 5, 1998, as amended by that certain
Assignment and Assumption Agreement and First Amendment to Note Purchase
Agreement dated as of January 24, 2000 (collectively, the "Purchase Agreement").
B. In connection with the establishment of a Dutch finance scheme (the
"Finance Scheme"), the Second Subsidiary Guarantor is being replaced as the
principal borrowing entity of the ▇▇▇▇▇ ▇▇▇▇▇▇ family of companies by the Third
Subsidiary Guarantor. The Issuer wishes to cause the Third Subsidiary Guarantor
to become a guarantor of the Notes and to amend the Note Purchase Agreement (i)
to add borrowings by the Third Subsidiary Guarantor as exclusions under the
definition of "Priority Debt" in the Note Purchase Agreement and (ii) to clarify
the applicability of certain other sections to the Third Subsidiary Guarantor.
C. This Agreement is required under Section 19 of the Purchase Agreement
as a form of written consent to the amendment of certain provisions of the
Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, Issuer, Guarantor, the First Subsidiary Guarantor, the
Second Subsidiary Guarantor, the Third Subsidiary Guarantor and the undersigned
Noteholders agree as follows:
1. EFFECTIVE DATE The effective date of this Agreement shall be the date
of satisfaction of the conditions set forth in Section 15 below (the "Effective
Date").
2. AMENDMENT TO SECTION 7.2(a). Section 7.2(a) of the Purchase Agreement
shall be completely replaced by a new Section 7.2(a), which shall read in full
as follows:
(a) Covenant Compliance - (i) the information (including detailed
calculations) required in order to establish whether the Obligors were in
compliance with the requirements of Sections 10.2, 10.3, 10.4, 10.5, 10.6
and 10.7, during the quarterly or annual period covered by the statements
then being furnished (including with respect to each such Section, where
applicable, the calculations of the maximum or minimum amount, ratio or
percentage, as the case may be, permissible under the terms of such
Sections, and the calculation of the amount, ratio or percentage then in
existence) and (ii) with respect only to financial statements delivered
pursuant to Section 7.1(b), the information (including detailed
calculations) required in order to establish whether the Obligors were in
compliance with the requirements of Section 10.9 during the annual period
covered by the statements then being furnished; and
3. AMENDMENT TO SECTION 9.8. Section 9.8 of the Purchase Agreement shall
be completely replaced by a new Section 9.8, which shall read in full as
follows:
9.8. OWNERSHIP OF ISSUER AND SUBSIDIARY GUARANTORS; ACTIVITIES.
Subject only to the provisions of Section 10.2(i), the Guarantor
will at all times maintain the Issuer, the First Subsidiary Guarantor, the
Second Subsidiary Guarantor and the Third Subsidiary Guarantor as
Wholly-Owned Subsidiaries of the Guarantor, and the capital stock of, and
any other ownership interests in, the Issuer, the First Subsidiary
Guarantor, the Second Subsidiary Guarantor and the Third Subsidiary
Guarantor will at all times remain free of any Lien.
4. AMENDMENT TO SECTION 10.3. Section 10.3 of the Purchase Agreement shall
be amended to delete existing subsection (f) and to replace it with a new
subsection (f), which shall read in full as follows:
(f) Liens on property or assets of the Guarantor or any of its
Subsidiaries securing Debt owing to the Guarantor or to any of its
Wholly-Owned Subsidiaries (other than the First Subsidiary Guarantor, the
Second Subsidiary Guarantor or the Third Subsidiary Guarantor);
5. ADDITION OF SECTION 10.9. A new Section 10.9 is hereby added to the
Purchase Agreement as follows:
10.9 INTEREST COVERAGE
EBIT will not be less than twice Net Interest Charges in any year
ending 31 March.
2
6. AMENDMENT TO SECTION 13. Section 13 of the Purchase Agreement shall be
amended to delete existing subsection (1) and to replace it with a new
subsection (1), which shall read in full as follows:
(1) any Subsidiary Guarantee shall at any time, for any reason,
cease to be in full force and effect or shall be declared to be null and void in
whole or in any material part by the final judgment (which is non-appealable or
has not been stayed pending appeal or as to which all rights to appeal have
expired or been exhausted) of any Governmental Authority having jurisdiction, or
the validity or enforceability of any Subsidiary Guarantee shall be contested by
or on behalf of the Guarantor or any of its Subsidiaries, or the Guarantor or
any such Subsidiary shall renounce a Subsidiary Guarantee or deny that the First
Subsidiary Guarantor, the Second Subsidiary Guarantor or the Third Subsidiary
Guarantor, as the case may be, is bound thereby or has any further liability
thereunder.
7. AMENDMENT TO SCHEDULE B. Schedule B of the Purchase Agreement is
amended to add new definitions of the terms set forth below, which shall read in
full as follows (and shall replace the definitions of any of the same terms in
the Purchase Agreement):
"BANK CREDIT AGREEMENTS" means (i) the four separate Revolving Loan
Agreements, three of which are dated on or about November 3, 1998 and one
of which (BankOne, N.A.) is dated on or about April 20, 2000 (together
with any related agreements and instruments, the "Australian Bank Loan
Agreements"), between the Third Subsidiary Guarantor as successor to the
Second Subsidiary Guarantor (as borrower), the Issuer, the First
Subsidiary Guarantor and the Guarantor (as guarantors) and, respectively,
Australia and New Zealand Banking Group, BNP Paribas, Westdeutsche
Landesbank Girozentrale and BankOne N.A. (the "Bank Lenders") under which
the Third Subsidiary Guarantor may borrow up to an aggregate of
A$200,000,000 (A$ referring to Australian dollars) as such agreements may
be amended, modified, refinanced or replaced with the same or different
lenders, and (ii) the six separate Standby Loan Agreements, two of which
are dated on or about November 4, 1998, one of which (Westdeutsche
Landesbank Girozentrale) is dated on or about January 24, 2000, two of
which (Bank One N.A. and BBL Australia Limited are dated on or about
December 10, 1998 and one of which (▇▇▇▇▇ Fargo HSBC Trade Bank, N.A.) is
dated on or about July 20, 2000 (together with any related agreements and
instruments, the "Standby Facilities"), between the Third Subsidiary
Guarantor as successor to the Second Subsidiary Guarantor (as borrower),
the Guarantor, the Issuer and the First Subsidiary Guarantor (as
guarantors) and, respectively, each of the Bank Lenders, BBL Australia
Limited and ▇▇▇▇▇ Fargo HSBC Trade Bank, N.A., under which the Third
Subsidiary Guarantor may borrow up to an aggregate of $117,500,000 (or the
equivalent in Australian currency) as such agreements may be amended,
modified, refinanced or replaced with the same or different lenders.
"EBIT" means the operating profit of the Guarantor and its
Subsidiaries before adjustments for abnormal or exceptional items and
income tax but after adding
3
back Net Interest Charges, determined in each case by reference to the
latest audited consolidated financial statements of the Guarantor and its
Subsidiaries delivered to the Noteholders under Section 7.1(b) of this
Agreement.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties
of the Guarantor and its Subsidiaries taken as a whole, or (b) the ability
of the Issuer or the Guarantor to perform its obligations under this
Agreement and the Notes, or (c) the validity or enforceability of this
Agreement or the Notes, or (d) the ability of the First Subsidiary
Guarantor, the Second Subsidiary Guarantor or the Third Subsidiary
Guarantor to perform its obligations under its Subsidiary Guarantee, or
(e) the validity or enforceability of any Subsidiary Guarantee.
"NET INTEREST CHARGES" means all continuing, regular or periodic
costs, charges and expenses (including interest, discount costs, charges
and expenses (including but not limited to interest, discount costs and
any and all fees associated with or incurred under any Debt)) incurred by
the Guarantor and any of its Subsidiaries in effecting, servicing or
maintaining at any time its Debt, less interest income received by or
arising to the Guarantor or such Subsidiaries 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 Section 7.1(b) of this
Agreement.
"PRIORITY DEBT" means (a) all Debt of the Guarantor and the
Subsidiaries secured by any Lien with respect to any property owned by the
Guarantor or any of its Subsidiaries and (b) all unsecured Debt of
Subsidiaries, except Debt owed to the Guarantor or a Wholly-Owned
Subsidiary, Debt of the First Subsidiary Guarantor, the Second Subsidiary
Guarantor or the Third Subsidiary Guarantor and Debt of the Issuer, the
First Subsidiary Guarantor, the Second Subsidiary Guarantor or the Third
Subsidiary Guarantor under this Agreement, the Notes, the Subsidiary
Guarantees, the Australian Bank Loan Agreements (and Guaranties thereof)
and the first $100,000,000 of the Standby Facilities (and Guaranties
thereof).
"THIRD SUBSIDIARY GUARANTOR" means ▇▇▇▇▇ ▇▇▇▇▇▇ International
Finance B.V., a company organized under the laws of the Netherlands with
its corporate seat in Amsterdam, the Netherlands, and its permitted
successors under the Subsidiary Guarantee.
"SUBSIDIARY GUARANTEE" means each of the Subsidiary Guarantees
executed and delivered by the First Subsidiary Guarantor, the Subsidiary
Guarantee executed and delivered by the Second Subsidiary Guarantor and
the Subsidiary Guarantee executed and delivered by the Third Subsidiary
Guarantor, each substantially in the form of Exhibit 4.10 hereto.
8. STATUS OF PURCHASE AGREEMENT. The provisions of the Purchase Agreement
are in full force and effect and shall remain unchanged, except as provided by
this Agreement.
4
9. INCONSISTENCIES. In the event of any inconsistency between the
provisions of this Agreement and any provision in the Purchase Agreement, the
terms and provisions of this Agreement shall govern.
10. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the law of
the State of New York excluding choice-of-law principles of the law of such
State that would require the application of the laws of a jurisdiction other
than such State.
11. SEVERABILITY. If any paragraph, clause or provision of this Agreement
is construed or interpreted by a court of competent jurisdiction to be void,
invalid or unenforceable, such decision shall not affect the remaining
paragraphs, clauses or provisions of this Agreement.
12. BINDING ON SUCCESSORS AND ASSIGNS. This Agreement applies to, inures
to the benefit of, and binds the Issuer, the Guarantor, the First Subsidiary
Guarantor, the Second Subsidiary Guarantor, the Third Subsidiary Guarantor and
the Noteholders and their respective heirs, legatees, devisees, administrators,
executors, successors and assigns.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one instrument. Each counterpart may consist of a number of copies
hereof, each signed by less than all, but together signed by all, of the parties
hereto. Any party hereto may execute and deliver a counterpart of this Agreement
by delivering by facsimile transmission a signature page of this Agreement
signed by such party and such facsimile signature shall be treated in all
respects as having the same effect as an original signature.
14. REPRESENTATIONS AND WARRANTIES OF THE ISSUER AND THE GUARANTOR. The
Issuer and the Guarantor jointly and severally represent and warrant to the
Noteholders that:
14.1. ORGANIZATION; POWER AND AUTHORITY. The Third Subsidiary
Guarantor is a corporation duly incorporated and validly existing under the laws
of the Netherlands and has all corporate power and authority to own or hold
under lease the properties it purports to own or hold under lease, to transact
the business it transacts and proposes to transact, to execute and deliver its
Subsidiary Guarantee and to perform the provisions thereof.
14.2. AUTHORIZATION, ETC. This Agreement has been duly authorized by
all necessary corporate action on the part of the Issuer, and this Agreement
constitutes a legal, valid and binding obligation of the Issuer enforceable
against the Issuer in accordance with its terms, except as such enforceability
may be limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). The
Subsidiary Guarantee has been duly authorized by all necessary corporate action
on the part of the Third Subsidiary Guarantor, and such Subsidiary Guarantee
constitutes a legal, valid and binding obligation of
5
the Third Subsidiary Guarantor enforceable against the Third Subsidiary
Guarantor in accordance with its terms, except as such enforceability may be
limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally and
(ii) general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
14.3. ORGANIZATION AND OWNERSHIP OF SHARES OF SUBSIDIARIES;
AFFILIATES
(a) Schedule 14.3 contains complete and correct lists of the
Guarantor's Subsidiaries, showing, as to each Subsidiary, the correct name
thereof, the jurisdiction of its organization or incorporation, and the
percentage of shares of each class of its capital stock or similar equity
interests outstanding owned by the Guarantor and each other Subsidiary.
(b) All of the outstanding shares of capital stock or similar
equity interests of each Subsidiary shown in Schedule 14.3 as being owned by the
Guarantor and its Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by the Guarantor or another Subsidiary free and
clear of any Lien (except as otherwise disclosed in Schedule 14.3).
(c) Each of the Issuer, the Guarantor, the First Subsidiary
Guarantor, the Second Subsidiary Guarantor and the Third Subsidiary Guarantor is
a corporation or other legal entity duly organized or incorporated, validly
existing and in good standing under the laws of its jurisdiction of organization
or incorporation, and is duly qualified as a foreign corporation or other legal
entity and, where such concept is relevant, is in good standing in each
jurisdiction in which such qualification is required by law, other than those
jurisdictions as to which the failure to be so qualified or in good standing
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. Each of the Issuer, the Guarantor, the First Subsidiary
Guarantor, the Second Subsidiary Guarantor and the Third Subsidiary Guarantor
has the corporate or other power and authority to own or hold under lease the
properties it purports to own or hold under lease and to transact the business
it transacts and proposes to transact.
(d) No Subsidiary is a party to, or otherwise subject to any
legal restriction or any agreement (other than restrictions permitted by Section
10.8 of the Purchase Agreement and customary limitations imposed by corporate
law statutes) restricting the ability of such Subsidiary to pay dividends out of
profits or make any other similar distributions of profits to the Guarantor or
any of its Subsidiaries that owns outstanding shares of capital stock or similar
equity interests of such Subsidiary.
14.4. COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC. The execution,
delivery and performance by the Issuer of this Agreement, the performance by the
Issuer of the Purchase Agreement and the Notes and the execution, delivery and
performance by the Third Subsidiary Guarantor of the Subsidiary Guarantee will
not (i) contravene, result in any breach of, or constitute a default under, or
result in the creation of any Lien in respect of any property of the Guarantor,
the Issuer or any Subsidiary under, any indenture, mortgage, deed
6
of trust, loan, purchase or credit agreement, lease, corporate charter or
by-laws, or any other agreement or instrument to which the Guarantor, the Issuer
or any Subsidiary is bound or by which the Guarantor, the Issuer or any
Subsidiary or any of their respective properties may be bound or affected, (ii)
conflict with or result in a breach of any of the terms, conditions or
provisions of any order, judgment, decree, or ruling of any court, arbitrator or
Governmental Authority applicable to the Guarantor, the Issuer or any Subsidiary
or (iii) violate any provision of any statute or other rule or regulation of any
Governmental Authority applicable to the Guarantor, the Issuer or any
Subsidiary.
14.5. GOVERNMENTAL AUTHORIZATIONS, ETC. No consent, approval or
authorization of, or registration, filing or declaration with, any Governmental
Authority is required in connection with the execution, delivery or performance
by Issuer, the Guarantor, the First Subsidiary Guarantor, the Second Subsidiary
Guarantor or the Third Subsidiary Guarantor of this Agreement or by the Third
Subsidiary Guarantor of its Subsidiary Guarantee.
14.6. LITIGATION. Schedule 14.6 sets forth a reasonably detailed
description of all material litigation and other proceedings involving or
affecting the Guarantor and its Subsidiaries.
14.7. EXISTING DEBT. Except as described therein, Schedule 14.7 sets
forth a complete and correct list of all outstanding Debt of the Obligors and
the Subsidiaries as of September 30, 2001, since which date there has been no
Material change in the amounts, interest rates, sinking funds, installment
payments or maturities of the Debt of the Obligors or the Subsidiaries. Neither
the Obligors nor any Subsidiary are in default and no waiver of default is
currently in effect, in the payment of any principal or interest on any Debt of
any Obligor or any such Subsidiary and no event or condition exists with respect
to any Debt of any Obligor or any Subsidiary that would permit (or that with
notice or the lapse of time, or both, would permit) one or more Persons to cause
such Debt to become due and payable before its stated maturity or before its
regularly scheduled dates of payment.
15 CONDITIONS TO EFFECTIVENESS. The effectiveness of this Agreement shall
be subject to the satisfaction of each of the following conditions precedent:
15.1 EXECUTED AGREEMENT. Issuer shall have received one or more
counterparts of this Agreement executed on behalf of the Required Holders.
15.2 THIRD SUBSIDIARY GUARANTY. The Third Subsidiary Guarantor shall
have executed and delivered a Subsidiary Guarantee substantially in the form as
heretofore delivered to the Noteholders and containing the provisions set forth
in Section 11 of the Purchase Agreement.
15.3 OPINIONS OF COUNSEL. Noteholders shall have received opinions
of Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Australian counsel), De Brauw Blackstone Westbroek
N.V. (Netherlands counsel) and ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (U.S. counsel), in
customary form
7
and subject only to customary qualifications, addressed to each Noteholder,
covering such matters as may be reasonably required by counsel to the
Noteholders.
15.4 REPRESENTATIONS AND WARRANTIES; NO DEFAULT. On the Effective
Date, after giving effect to the amendment of the Purchase Agreement
contemplated hereby:
(a) the representations and warranties contained in Section 14
hereof and the representations and warranties contained in Section 5.8(a),
5.8(b), 5.9, 5.10, 5.11, 5.12, 5.17 and 5.18 of the Purchase Agreement shall be
true and correct on and as of the Effective Date as though made on and as of
such date; and
(b) no Default or Event of Default shall have occurred and be
continuing.
15.5 COMPLIANCE CERTIFICATES.
(a) OFFICER'S CERTIFICATE. Issuer shall deliver to each
Noteholder an Officer's Certificate, dated as of the Effective Date, certifying
that the condition specified in Section 15.4 of this Section have been
fulfilled.
(b) SECRETARY'S CERTIFICATE. Issuer shall have delivered to
each Noteholder a certificate certifying as to the resolutions attached thereto
and other corporate proceedings relating to the authorization, execution and
delivery of this Agreement and the Subsidiary Guarantee and the incumbency and
authority of persons executing such documents.
15.6 EVIDENCE OF CONSENT TO RECEIVE SERVICE OF PROCESS. Each
Noteholder shall have received, in form and substance reasonably satisfactory to
such Noteholder, evidence of the consent of CT Corporation System in New York,
New York to the appointment and designation provided for by Section 24.6 of the
Purchase Agreement (and the payment of all fees related thereto).
15.7 PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings
in connection with the transactions contemplated by this Agreement and all the
documents and instruments incident to such transactions shall be satisfactory to
each Noteholder and its special counsel, and such Noteholder and its special
counsel shall have received all such counterpart originals or certified or other
copies of such documents as it or they may reasonably request.
15.8 NOTICE OF EFFECTIVENESS OF FINANCE SCHEME. Each Noteholder
shall have received notice that the Finance Scheme has been implemented and the
Third Subsidiary Guarantor shall have become the borrower under the Bank Credit
Agreements.
15.9 PAYMENT OF AMENDMENT FEE. Each Noteholder shall have received
its pro rata share of an amendment fee in the aggregate amount of $225,000.
8
16. LEGAL FEES. The Obligors jointly and severally will pay all legal
costs and expenses (including reasonable attorneys' fees of ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇▇) incurred by the Noteholders in connection with this Agreement.
17. CONSENT AND CONFIRMATION BY GUARANTORS. The Guarantor, the First
Subsidiary Guarantor and the Second Subsidiary Guarantor expressly consent to
this Agreement and confirm that their respective Guaranties of the Notes and the
Purchase Agreement, as amended, remain in full force and effect.
[NEXT PAGE IS SIGNATURE PAGE -- REST OF THIS PAGE INTENTIONALLY BLANK]
9
IN WITNESS WHEREOF, the Issuer, the Guarantor, the First Subsidiary
Guarantor, the Second Subsidiary Guarantor, the Third Subsidiary Guarantor and
the respective Noteholders listed on the attached signature pages hereof have
executed this Agreement effective as of the day and year first above written.
ISSUER: GUARANTOR:
▇▇▇▇▇ ▇▇▇▇▇▇ U.S. FUNDING, INC., ▇▇▇▇▇ ▇▇▇▇▇▇ N.V.,
a Nevada corporation a company incorporated under the
laws of the Netherlands
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------- By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: CFO -------------------------
Its: CFO/DIRECTOR
FIRST SUBSIDIARY GUARANTOR:
SECOND SUBSIDIARY GUARANTOR:
▇▇▇▇▇ ▇▇▇▇▇▇ AUST.
INVESTCO PTY. LIMITED, ▇▇▇▇▇ ▇▇▇▇▇▇ AUSTRALIA
a company organized under the FINANCE PTY. LIMITED,
laws of Australia a company organized under the
laws of Australia
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------- By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: CFO/ DIRECTOR -------------------------
Its: CFO/DIRECTOR
THIRD SUBSIDIARY GUARANTOR:
▇▇▇▇▇ ▇▇▇▇▇▇ INTERNATIONAL
FINANCE B.V.,
a company incorporated under the
laws of the Netherlands
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Its: CFO/ DIRECTOR
NOTEHOLDERS: [SEE ATTACHED PAGES]
10
SIGNATURE PAGE TO SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT DATED AS OF
OCTOBER 22, 2001
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Its: Vice President
SIGNATURE PAGE TO SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT DATED AS OF
OCTOBER 22, 2001
CONNECTICUT GENERAL LIFE INSURANCE COMPANY (CIG & CO.)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: PARTNER
SIGNATURE PAGE TO SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT DATED AS OF
OCTOBER 22, 2001
CONNECTICUT GENERAL LIFE INSURANCE COMPANY ON BEHALF OF ONE OR MORE SEPARATE
ACCOUNTS (CIG & CO.)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: PARTNER
SIGNATURE PAGE TO SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT DATED AS OF
OCTOBER 22, 2001
LIFE INSURANCE COMPANY OF NORTH AMERICA (CIG & CO.)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: PARTNER
SIGNATURE PAGE TO SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT DATED AS OF
OCTOBER 22, 2001
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Capital Management, LLC,
a Delaware limited liability company,
its authorized signatory
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
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Its: ▇▇▇ ▇. ▇▇▇▇▇, Counsel
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Counsel
SIGNATURE PAGE TO SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT DATED AS OF
OCTOBER 22, 2001
USAA LIFE INSURANCE COMPANY (▇▇▇▇▇▇▇ & CO.)
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Its: Vice President
SIGNATURE PAGE TO SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT DATED AS OF
OCTOBER 22, 2001
THE ▇▇▇▇ ▇▇▇▇▇▇ LIFE INSURANCE COMPANY (▇▇▇▇ & CO.)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Its: SENIOR VICE PRESIDENT
SIGNATURE PAGE TO SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT DATED AS OF
OCTOBER 22, 2001
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ AND COMPANY, INCORPORATED
Its: INVESTMENT ADVISOR
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Managing Director
SIGNATURE PAGE TO SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT DATED AS OF
OCTOBER 22, 2001
CM LIFE INSURANCE COMPANY C/O MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ AND COMPANY, INCORPORATED
Its: INVESTMENT ADVISOR
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Managing Director
SIGNATURE PAGE TO SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT DATED AS OF
OCTOBER 22, 2001
THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA (▇▇▇▇ & CO.)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: MANAGING DIRECTOR
SCHEDULE 14.3 LIST OF SUBSIDIARIES OF ▇▇▇▇▇ ▇▇▇▇▇▇ N.V. AT 22 OCTOBER 2001
COUNTRY OF
INCORPORATION
▇▇▇▇▇ ▇▇▇▇▇▇ NV Netherlands
▇▇▇▇▇ ▇▇▇▇▇▇ Finance BV Netherlands
▇▇▇▇▇ ▇▇▇▇▇▇ International Finance BV Netherlands
▇▇▇▇▇ ▇▇▇▇▇▇ Australia Finance Pty Ltd Australia
▇▇▇▇▇ ▇▇▇▇▇▇ NSW Investments Pty Ltd Australia
▇▇▇▇▇ ▇▇▇▇▇▇ FCTA Pty Ltd Australia
▇▇▇▇▇ ▇▇▇▇▇▇ Philippines Inc Philippines
PT ▇▇▇▇▇ ▇▇▇▇▇▇ Indonesia Indonesia
▇▇▇▇▇ ▇▇▇▇▇▇ International Holdings BV Netherlands
▇▇▇▇▇ ▇▇▇▇▇▇ Fibrocementos Limitada Chile
▇▇▇▇▇ ▇▇▇▇▇▇ Research (Holdings) Pty Ltd Australia
▇▇▇▇▇ ▇▇▇▇▇▇ Research Pty Ltd Australia
▇▇▇▇▇ ▇▇▇▇▇▇ Tech Pty Ltd Australia
▇▇▇▇▇ ▇▇▇▇▇▇ USA Investments BV (in liquidation) Netherlands
▇▇▇▇▇ ▇▇▇▇▇▇ (Holdings) Inc USA
▇▇▇▇▇ ▇▇▇▇▇▇ Building Products Inc USA
▇▇▇▇▇ ▇▇▇▇▇▇ Inc USA
▇▇▇▇▇ ▇▇▇▇▇▇ Building Products Canada Inc Canada
▇▇▇▇▇ ▇▇▇▇▇▇ Gypsum Inc USA
▇▇▇▇▇ ▇▇▇▇▇▇ US Funding Inc USA
▇▇▇▇▇ ▇▇▇▇▇▇ US Investments Sierra Inc USA
▇▇▇▇▇ ▇▇▇▇▇▇ NZ Trustee Ltd NZ
▇▇▇▇▇ ▇▇▇▇▇▇ NZ Holdings Trust NZ Trust
▇▇▇▇▇ ▇▇▇▇▇▇ NZ Investco Trust NZ Trust
▇▇▇▇▇ ▇▇▇▇▇▇ New Zealand Ltd NZ
▇▇▇▇▇ ▇▇▇▇▇▇ Aust Holdings Pty Ltd Australia
▇▇▇▇▇ ▇▇▇▇▇▇ Aust Investco Pty Ltd Australia
▇▇▇▇▇ ▇▇▇▇▇▇ Aust Investco Services Pty Ltd Australia
▇▇▇▇▇ ▇▇▇▇▇▇ Aust Investments No 1 Pty Ltd Australia
▇▇▇▇▇ ▇▇▇▇▇▇ Australia Management Pty Ltd Australia
▇▇▇▇▇ ▇▇▇▇▇▇ Australia Pty Ltd Australia
▇▇▇▇▇ ▇▇▇▇▇▇ Fibre Cement Pty Ltd Australia
▇▇▇▇▇ ▇▇▇▇▇▇ FC Pty Ltd Australia
▇▇▇▇▇ ▇▇▇▇▇▇ Windows (Holdings) Pty Ltd Australia
▇▇▇▇▇ ▇▇▇▇▇▇ Windows Pty Ltd Australia
Louvre Properties Pty Ltd Australia
▇▇▇▇▇ ▇▇▇▇▇▇ US Investments Washoe Inc USA
Western Mining & Minerals Inc USA
▇▇▇▇▇ ▇▇▇▇▇▇ US Investments Inc USA
SCHEDULE 14.6 LEGAL PROCEEDINGS
The Guarantor and its subsidiaries (collectively the "Group") are involved from
time to time in various legal proceedings and administrative actions incident to
the normal conduct of the Group's business. Although it is impossible to predict
the outcome of any pending legal proceeding, management believes that such
proceedings and actions should not, individually or in the aggregate, have a
Material Adverse Effect.
SCHEDULE 14.7 OUTSTANDING DEBT OF THE OBLIGORS AND THE SUBSIDIARIES
1. Guaranteed Senior Notes USD 225 million
2. Revolving Loan Facility
DRAWN AMOUNT AT 30
LENDER COMMITTED AMOUNT SEPTEMBER 2001
----------------------- ---------------- ------------------
AUD MILLION AUD MILLION
---------------- ------------------
Australia & New Zealand
Banking Group Limited 80.0 80.0
BNP Paribas 40.0 40.0
Westdeutsche Landesbank
Girozentrale 40.0 40.0
BankOne NA 40.0 40.0
----- -----
TOTAL 200.0 200.0
----- -----
3. Standby Facility
LENDER COMMITTED AMOUNT DRAWN AMOUNT
------------------------------- ---------------- ------------
USD MILLION USD MILLION
---------------- ------------
Australia & New Zealand Banking
Group Limited 25.0 22.0
BNP Paribas 15.0 0
Westdeutsche Landesbank
Girozentrale 12.5 0
BankOne NA 30.0 17.1
BBL Australia. Ltd 20.0 17.1
▇▇▇▇▇ Fargo HSBC Trade Bank NA 15.0
----- ----
TOTAL 117.5 56.2
----- ----
GUARANTY
THIS GUARANTY ("Guaranty"), is entered into effective as of October 22,
2001, by ▇▇▇▇▇ ▇▇▇▇▇▇ International Finance B.V. a company incorporated under
the laws of the Netherlands with its corporate seat in Amsterdam, the
Netherlands ("Additional Guarantor"), in favor of the Noteholders (as defined in
the Purchase Agreement described below).
RECITALS:
A. ▇▇▇▇▇ ▇▇▇▇▇▇ U.S. Funding, Inc. (the "Issuer"), ▇▇▇▇▇ ▇▇▇▇▇▇ N.V. (the
"Guarantor"), ▇▇▇▇▇ ▇▇▇▇▇▇ Aust. Investco Pty. Limited, ▇▇▇▇▇ ▇▇▇▇▇▇ Australia
Finance Pty. Limited, the Additional Guarantor and certain of the Noteholders
have entered into that certain Second Amendment to Note Purchase Agreement dated
as of the date hereof (the "Second Amendment"). The Second Amendment amends
those certain Note Purchase Agreements with Issuer and the Guarantor, each dated
as of November 5, 1998, as amended by that certain Assignment and Assumption
Agreement and First Amendment to Note Purchase Agreement dated as of January 24,
2000 (collectively with the Second Amendment, the "Purchase Agreement").
Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed thereto in the Purchase Agreement.
B. It is a condition to the effectiveness of the Second Amendment that
Additional Guarantor execute and deliver this Guaranty.
C. Additional Guarantor will receive substantial direct and indirect
benefit from the effectiveness of the Second Amendment.
AGREEMENT:
NOW, THEREFORE, as a material inducement to the Noteholders to execute and
deliver the Second Amendment, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Additional Guarantor
hereby does irrevocably and unconditionally warrant and represent unto and
covenant with the Noteholders as follows:
1. GUARANTY. Additional Guarantor hereby absolutely unconditionally and
irrevocably guarantees to each and every holder of any of the Notes from time to
time
(a) the due and punctual payment of
(i) the principal of and Make-Whole Amount (if any) and
interest on all outstanding Notes (including interest on such
principal and Make-Whole Amount and, to the extent permitted by
applicable law, on any overdue interest), whether at the stated
maturity, by acceleration, pursuant to any prepayment or otherwise,
in accordance with the Notes and the Purchase Agreement, and
(ii) all other sums that may become due from the Issuer to any
Noteholder under the Notes or the Purchase Agreement, including
costs, expenses and taxes; and
(b) the due and punctual performance and observance by the Issuer of
all covenants, agreements and conditions on its part to be performed
and observed under the Purchase Agreement.
Such payment and other obligations so guaranteed are collectively called the
"Guaranteed Obligations". If default shall be made in the performance of any of
the Guaranteed Obligations, Additional Guarantor will also pay to the holder of
any Note such amounts, to the extent lawful, as shall be sufficient to pay the
costs and expenses of collection or of otherwise enforcing any of such holder's
rights under the Purchase Agreement, including reasonable counsel fees.
The obligations of Additional Guarantor under this Section 1 shall survive
the transfer or payment of the Notes.
2. ADDITIONAL GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Additional
Guarantor hereby warrants and represents to the Noteholders as follows:
(a) This Guaranty constitutes the legal, valid and binding
obligation of Additional Guarantor and is fully enforceable against Additional
Guarantor in accordance with its terms.
(b) Additional Guarantor is solvent and the execution of this
Guaranty does not render Additional Guarantor insolvent.
(c) There are no legal proceedings or material claims or demands
pending against or, to the best of Additional Guarantor's knowledge threatened
against, Additional Guarantor or any of its assets.
(d) The execution and delivery of this Guaranty and the assumption
of liability hereunder have been in all respects authorized and approved by
Additional Guarantor and its shareholders. Additional Guarantor has full
authority and power to execute this Guaranty and to perform its obligations
hereunder.
(e) Neither the execution nor the delivery of this Guaranty nor the
fulfillment and compliance with the provisions hereof will conflict with, result
in a breach of, constitute a default under or result in the creation of any
lien, charge, or encumbrance upon any property or assets of Additional Guarantor
under any agreement or instrument to which Additional Guarantor is now a party
or by which it may be bound.
3. WAIVER.
(a) The obligations of Additional Guarantor under this Guaranty
constitute a present and continuing guaranty of payment and not of
collectibility and shall be absolute and unconditional and, to the extent
permitted by applicable law, the Guaranteed Obligations shall not be subject to
any counterclaim, setoff, deduction or defense based upon any claim Additional
Guarantor may have against the Issuer or any other Person, and shall remain in
full force and effect without regard to, and shall not be released, discharged
or in any way affected or impaired by any thing, event, happening, matter,
circumstance or condition whatsoever (whether or not
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Additional Guarantor shall have any knowledge or notice thereof or consent
thereto), including without limitation:
(i) any amendment or modification of any provision of the
Purchase Agreement or any of the Notes or any assignment or transfer
thereof, including without limitation the renewal or extension of the time
of payment of any of the Notes or the granting of time in respect of such
payment thereof, or of any furnishing or acceptance of security or any
additional guarantee or any release or any security or guarantee so
furnished or accepted for any of the Notes;
(ii) any waiver, consent, extension, granting of time,
forbearance, indulgence or other action or inaction under or in respect of
the Purchase Agreement or the Notes, or any exercise or nonexercise of any
right, remedy or power in respect thereof,
(iii) any bankruptcy, receivership, insolvency,
reorganization, arrangement, readjustment, composition, liquidation or
similar proceedings with respect to the Issuer or any other Person or the
properties or creditors of any of them;
(iv) the occurrence of any Default or Event of Default under,
or any invalidity or any unenforceability of, or any misrepresentation,
irregularity or other defect in, the Purchase Agreement;
(v) any transfer of any assets to or from the Issuer,
including without limitation any transfer or purported transfer to the
Issuer from any Person, any invalidity, illegality of, or inability to
enforce, any such transfer or purported transfer, any consolidation or
merger of the Issuer with or into any Person, or any change whatsoever in
the objects, capital structure, constitution or business of the Issuer;
(vi) any failure on the part of the Issuer or any other
guarantor to perform or comply with any term of the Purchase Agreement,
the Notes or any other agreement;
(vii) any suit or other action brought by any beneficiaries or
creditors of, or by, the Issuer or any other person for any reason
whatsoever, including without limitation any suit or action in any way
attacking or involving any issue, matter or thing in respect of the
Purchase Agreement, the Notes or any other agreement;
(viii) any lack or limitation of status or of power,
incapacity or disability of the Issuer or any trustee or agent thereof; or
(ix) any other thing, event, happening, matter, circumstance
or condition whatsoever, not in any way limited to the foregoing.
(b) Additional Guarantor hereby unconditionally waives diligence,
presentment, demand of payment, protest and all notices whatsoever and any
requirement that any holder of a Note exhaust any right, power or remedy against
the Issuer under the Purchase Agreement or the Notes or any other agreement or
instrument referred to herein or therein, or
3
against any other guarantor or any other Person under any other guarantee of, or
security for, any of the Guaranteed Obligations.
(c) In the event that Additional Guarantor shall at any time pay any
amount on account of the Guaranteed Obligations or take any other action in
performance of its obligations hereunder, Additional Guarantor shall have no
subrogation or other rights hereunder, under the Purchase Agreement or under the
Notes and Additional Guarantor hereby waives all rights it may have to be
subrogated to the rights of any holder of a Note, and all other remedies that it
may have against the Issuer, in respect of any payment made hereunder unless and
until the Guaranteed Obligations shall have been indefeasibly paid in full. If
any amount shall be paid to Additional Guarantor on account of any such
subrogation rights or other remedy, notwithstanding the waiver thereof, such
amount shall be received in trust for the benefit of the holders of the Notes
and shall forthwith be paid to such holders to be credited and applied upon the
Guaranteed Obligations, whether matured or unmatured, in accordance with the
terms hereof. Additional Guarantor agrees that its obligations under this
Guaranty shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of the Issuer is rescinded or must be
otherwise restored by any holder of any Note, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, all as though such
amount had not been paid.
Each default in the payment or performance of any of the Guaranteed
Obligations shall give rise to a separate claim and cause of action hereunder,
and separate claims or suits may be made and brought, as the case may be,
hereunder as each such default occurs. Additional Guarantor will from time to
time deliver, upon the reasonable request of any holder of a Note, a
satisfactory acknowledgment of its continued liability hereunder.
4. REMEDIES CUMULATIVE. Additional Guarantor hereby agrees with the
Noteholders that all rights, remedies and recourses afforded to the Noteholders
by reason of this Guaranty or otherwise are (a) separate and cumulative and may
be pursued separately, successively or concurrently, as occasion therefor shall
arise, and (b) non-exclusive and shall in no way limit or prejudice any other
legal or equitable right, remedy or recourse which the Noteholders may have.
5. LAW GOVERNING AND SEVERABILITY; JURISDICTION.
(a) This Guaranty shall be governed by and construed in accordance
with the laws of the State of New York and is intended to be performed in
accordance with, and only to the extent permitted by, such laws. If any
provision of this Guaranty or the application thereof to any person or
circumstance, for any reason and to any extent, shall be invalid or
unenforceable, neither the remainder of this Guaranty nor the application of
such provision to any other persons or circumstances shall be affected thereby,
but rather the same shall be enforced to the greatest extent permitted by law.
(b) Additional Guarantor hereby expressly waives all rights to
object to jurisdiction or execution in any legal action or proceeding relating
to this Guaranty, the Purchase Agreement or the Notes that it may now or
hereafter have by reason of its domicile or by reason of any subsequent or other
domicile. Additional Guarantor agrees that any legal action or
4
proceeding with respect to this Guaranty, the Purchase Agreement or any Note, or
any instrument, agreement or document mentioned or contemplated herein, or to
enforce any judgment obtained against Additional Guarantor in any such legal
action or proceeding against it or any of their respective properties or
revenues may be brought by the holder of any Note in the courts of the State of
New York or of the United States of America located in New York, New York, as
the holder of any Note may elect, and by execution and delivery of this
Guaranty, Additional Guarantor irrevocably submits to each such personal
jurisdiction.
In addition, Additional Guarantor hereby irrevocably and
unconditionally waives, to the fullest extent permitted by law, any objection
that it may now or hereafter have to the laying of venue of any of the actions,
suits or proceedings described above arising out of or in connection with this
Guaranty, the Purchase Agreement or the Notes brought in any of such courts, and
waives and agrees not to plead or claim that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
Additional Guarantor hereby irrevocably designates, appoints and
empowers CT Corporation System with offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, and its successors, as the designee, appointee and agent of Additional
Guarantor to receive, accept and acknowledge, for and on behalf of Additional
Guarantor and its respective properties, service of any and all legal process,
summons, notices and documents which may be served in any such action, suit or
proceeding in the case of the courts of the State of New York or of the United
States of America located in New York, New York, which service may be made on
any such designee, appointee and agent in accordance with legal procedures
prescribed for such courts. Additional Guarantor shall take any and all actions
necessary to continue such designation in full force and effect and should such
designee, appointee and agent become unavailable for this purpose for any
reason, Additional Guarantor will forthwith irrevocably designate a new
designee, appointee and agent with offices in New York, New York, which shall
irrevocably agree to act as such, with the powers and for the purposes specified
in this Section 5(b). Additional Guarantor further irrevocably consents and
agrees to service of any and all legal process, summons, notices and documents
out of any of such courts in any such action, suit or proceeding delivered to
Additional Guarantor in accordance with this Section 5(b) or to its then
designee, appointee or agent for service. Service upon Additional Guarantor or
any such designee, appointee and agent as provided for herein shall constitute
valid and effective personal service upon Additional Guarantor and the failure
of any such designee, appointee and agent to give any notice of such service to
Additional Guarantor shall not impair or affect in any way the validity of such
service or any judgment rendered in any action or proceeding based thereon.
Nothing herein shall, or shall be construed so as to, limit the right of any
holder of Notes to bring actions, suits or proceedings with respect to the
obligations and liabilities of Additional Guarantor under, or any other matter
arising out of or in connection with, this Guaranty, the Purchase Agreement or
the Notes, or for recognition or enforcement of any judgment rendered in any
such action, suit or proceeding, in the courts of whatever jurisdiction in which
the respective offices of the holders of the Notes may be located or assets of
Additional Guarantor may be found or as otherwise shall to any holder of Notes
seem appropriate, or to affect the right to service of process in any
jurisdiction in any other manner permitted by law.
6. PAYMENTS IN DOLLARS; CURRENCY INDEMNITY.
5
(a) Additional Guarantor shall make payments under this Guaranty in
United States currency ("Dollars") and the obligation of Additional Guarantor to
make such payments shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment, which is expressed in or converted into any
currency other than Dollars, except to the extent such tender or recovery shall
result in the actual receipt by the holder of any Note of the full amount of
Dollars expressed to be payable in respect of any such obligations. The
obligation of Additional Guarantor to make payment in Dollars as aforesaid shall
be enforceable as an alternative or additional cause of action for the purpose
of recovery in Dollars of the amount, if any, by which such actual receipt shall
fall short of the full amount of Dollars expressed to be payable in respect of
any such obligations, and shall not be affected by judgment being obtained for
any other sums due under this Guaranty, the Purchase Agreement or the Notes.
(b) The Additional Guarantor shall indemnify the Noteholders against
any deficiency which arises whenever for any reason (including as a result of a
judgment or order or any official management, receivership, compromise,
arrangement, amalgamation, administration, reconstruction, winding up,
dissolution, assignment for the benefit of creditors, arrangement or compromise
with creditors, bankruptcy or death) any Noteholder receives or recovers an
amount in a currency (the "Payment Currency") other than Dollars and the amount
actually received or recovered by such Noteholder in accordance with its normal
practice when it converts the Payment Currency into Dollars is less than the
relevant amount that would otherwise have been due in Dollars.
7. ADDITIONAL PAYMENTS. For the purposes of this Section 7: the term
"Government Agency" shall mean any government or governmental, semi-governmental
or judicial entity or authority or any self regulatory organization established
under statute; the term "Tax" includes any tax, levy, impost, deduction, charge,
rate, duty, compulsory loan or withholding which is levied or imposed by a
Government Agency, and any related interest, penalty, charge, fee or other
amount; and the term "Excluded Tax" means a Tax imposed by a jurisdiction on the
net income of a Noteholder because a Noteholder has a connection with that
jurisdiction, but not a Tax which is calculated by reference to the gross amount
of a payment derived by a Noteholder under this Guaranty or another document
referred to in this Guaranty (without the allowance of a deduction) or which is
imposed as a result of a Noteholder being considered to have a connection with
that jurisdiction solely as a result of it being a party to this Guaranty or a
transaction contemplated by this Guaranty. Whenever Additional Guarantor is
obliged to make a deduction in respect of Tax from any payment under this
Guaranty, (a) it shall promptly pay the amount deducted to the appropriate
Government Agency and (b) unless the Tax is an Excluded Tax, it shall pay the
relevant Noteholder on the due date of the payment any additional amounts
necessary (as determined by that Noteholder) to ensure that that Noteholder
receives when due a net amount (after payment of any Taxes in respect of those
additional amounts) in the relevant currency equal to the full amount that it
would have received had a deduction not been made. Additional Guarantor shall
indemnify the relevant Noteholder on demand against the Tax and any amounts
recoverable from that Noteholder in respect of the Tax. Additional Guarantor
waives any statutory right to recover from a Noteholder any amount paid under
this Section 7.
8. NOTICES. All notices, requests, demands, consents, approvals,
agreements or other communications to or by a party to this Guaranty must be in
writing and must be signed by a
6
duly authorized officer of the sender. Any such communication will be taken to
be duly given or made:
(a) (in the case of delivery in person or by post, facsimile
transmission or cable) when delivered, received or left at the address of the
recipient shown in this Guaranty or to any other address of which it may have
notified the sender; or
(b) (in the case of a telex) on receipt by the sender of the
answerback code of the recipient at the end of transmission,
but if delivery or receipt is on a day on which business is not generally
carried on in the place to which the communication is sent or is later than 4:00
pm (local time), it will be taken to have been duly given or made at the
commencement of business on the next day on which business is generally carried
on in that place.
9. TRANSACTION EXPENSES. Whether or not the transactions contemplated
hereby are consummated, the Additional Guarantor agrees that it will pay all
costs and expenses (including reasonable attorneys' fees of a special counsel
and, if reasonably required, local or other counsel) incurred by any Noteholder
in connection with such transactions and in connection with any amendments,
waivers or consents under or in respect of this Guaranty, the Purchase Agreement
or the Notes (whether or not such amendment, waiver or consent becomes
effective), including, without limitation: (a) the costs and expenses incurred
in enforcing or defending (or determining whether or how to enforce or defend)
any rights under this Guaranty, the Purchase Agreement or the Notes or in
responding to any subpoena or other legal process or informal investigative
demand issued in connection with this Guaranty, the Purchase Agreement or the
Notes, or by reason of being a holder of any Note, and (b) the costs and
expenses, including financial advisors' fees, incurred in connection with the
insolvency or bankruptcy of Additional Guarantor or any Subsidiary or in
connection with any work-out or restructuring of the transactions contemplated
hereby and by the Notes. Additional Guarantor will pay, and will save each
holder of a Note harmless from, all claims in respect of any fees, costs or
expenses if any, of brokers and finders (other than those retained by any such
holder). The obligations of Additional Guarantor under this Section 9 will
survive the payment or transfer of any Note, the enforcement, amendment or
waiver of any provision of this Guaranty, the Purchase Agreement or the Notes,
and the termination of this Guaranty.
10. FURTHER ASSURANCES. Additional Guarantor will at its own expense and
when requested by any Noteholder from time to time to do so, promptly do,
execute and deliver all such other and further acts and instruments as are
necessary or, in the reasonable opinion of such Noteholder, desirable for more
satisfactorily giving effect to this Guaranty and for more fully vesting in such
Noteholder all rights, remedies and powers conferred or intended to be conferred
by this Guaranty and must cause any relevant third parties to do, execute and
deliver the same.
11. SUCCESSORS AND ASSIGNS. This Guaranty and all the terms, provisions
and conditions hereof shall be binding upon Additional Guarantor and Additional
Guarantor's heirs, legal representatives, successors and assigns and shall inure
to the benefit of each Noteholder, its successors and assigns and all subsequent
holders of the Notes. Additional Guarantor may not
7
assign or transfer any of its rights or obligations under this Guaranty without
the prior written consent of each Noteholder.
12. AMENDMENTS. No amendment or waiver of any provision of this Guaranty
and no consent to any departure by Additional Guarantor therefrom shall in any
event be effective unless the same shall be in writing and signed by the
Required Holders, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all of the Noteholders (a) reduce or limit the obligations of
Additional Guarantor hereunder or otherwise limit Additional Guarantor's
liability with respect to the Guaranteed Obligations owing to the Noteholders
under or in respect of this Guaranty, the Notes or the Purchase Agreement, (b)
postpone any date fixed for payment hereunder or (c) change the number of
Noteholders or the percentage of the aggregate unpaid principal amount of the
Notes that, in each case, shall be required for the Noteholders or any of them
to take any action hereunder.
13. PARAGRAPH HEADINGS. The paragraph headings inserted in this Guaranty
have been included for convenience only and are not intended, and shall not be
construed, to limit or define in any way the substance of any paragraph
contained herein.
14. BENEFIT. Additional Guarantor warrants and represents that Additional
Guarantor has received, or will receive, direct or indirect benefit from the
execution and delivery of this Guaranty.
15. NO REPRESENTATIONS BY NOTEHOLDERS. No Noteholder or anyone acting on
behalf of any Noteholder has made any representation, warranty or statement to
Additional Guarantor to induce Additional Guarantor to execute and deliver this
Guaranty.
EXECUTED effective as of the date first above written.
▇▇▇▇▇ ▇▇▇▇▇▇ INTERNATIONAL
FINANCE B.V., a Netherlands corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: CFO/ Director
Address for Notices: Copy to:
World Trade Center 26300 La Alameda
Strawinskylaan 1725 Suite 100
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
The Netherlands 92691
Attn: ▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
8
SECRETARY'S CERTIFICATE OF
▇▇▇▇▇ ▇▇▇▇▇▇ U.S. FUNDING, INC.
Reference is made to the Second Amendment to Note Purchase Agreement (the
"Amendment") dated as of October 22, 2001 by and among ▇▇▇▇▇ ▇▇▇▇▇▇ U.S.
Funding, Inc., a Nevada corporation (the "Company"), ▇▇▇▇▇ ▇▇▇▇▇▇ N.V., ▇▇▇▇▇
▇▇▇▇▇▇ Aust. Investco Pty. Limited, ▇▇▇▇▇ ▇▇▇▇▇▇ Australia Finance Pry. Limited,
▇▇▇▇▇ ▇▇▇▇▇▇ International Finance B.V., and certain institutional investors as
listed on the signature pages thereto.
I, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, do hereby certify that I am a duly elected, qualified and
acting Secretary of the Company, and, as such, I am authorized to execute and
deliver this certificate on behalf of the Company. I further certify on behalf
of the Company that:
(a) Attached hereto as Exhibit A are true, correct and complete copies of
resolutions duly adopted by the Company's board of directors relating to
the authorization, execution and delivery of the documents to which the
Company is a party in connection with the transactions contemplated by the
Amendment. Such resolutions have not been modified or rescinded and remain
in full force and effect as of the date hereof; and
(b) The following are the names of, the offices held by, and the genuine
signatures of, certain officers of the Company authorized to sign the
documents to which the Company is a party in connection with the
transactions contemplated by the Amendment on behalf of the Company:
Name Office Signature
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Chief Financial Officer /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
IN WITNESS WHEREOF, I have signed this certificate on behalf of the Company as
of the 22nd day of October, 2001.
▇▇▇▇▇ ▇▇▇▇▇▇ U.S. FUNDING, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
The undersigned certifies that he is the duly appointed, qualified and acting
Chief Financial Officer of the Company and further certifies that ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ is the duly appointed, qualified and acting Secretary of the Company and
that the signature set forth above is his genuine signature.
October 22, 2001
▇▇▇▇▇ ▇▇▇▇▇▇ U.S. FUNDING, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
EXHIBIT A
ACTION BY UNANIMOUS WRITTEN CONSENT
OF THE BOARD OF DIRECTORS
OF
▇▇▇▇▇ ▇▇▇▇▇▇ U.S. FUNDING INC.,
A NEVADA CORPORATION
The undersigned, being all of the directors of ▇▇▇▇▇ ▇▇▇▇▇▇ U.S. Funding
Inc., a Nevada corporation (the "Corporation"), in accordance with the authority
contained in Nevada General Corporation Law Section 78.315, do hereby consent
to, adopt and approve the following resolutions without a meeting with the
intention that such actions will have the same force and effect as if taken by a
vote of the board of directors at a meeting duly called and held:
SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT
WHEREAS, in connection with the establishment of a Dutch finance scheme
the board of directors of the Corporation deems it to be in the best interests
of the Corporation to enter into a Second Amendment to Note Purchase Agreement
in the form attached hereto as Attachment 1 (the "Amendment").
WHEREAS, the board of directors of the Corporation has reviewed the terms
and conditions of the Amendment and finds them to be in the best interests of
the Corporation and its shareholders.
NOW, THEREFORE, BE IT RESOLVED, that the Corporation be, and it hereby is,
authorized to approve, execute, deliver and perform its obligations under the
Amendment, the form, terms and provisions of which are hereby ratified, affirmed
and approved; and
RESOLVED FURTHER, that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ or any other officer of the
Corporation, acting together or alone, be, and each of them hereby is, in the
name of the Corporation and on its behalf, authorized to approve, execute and
deliver the Amendment, with such changes thereto as may be approved by the
officer or officers executing the same, such approval to be conclusively
evidenced by his or their execution thereof.
GENERAL AUTHORIZATION
RESOLVED, that each of the officers of the Corporation be, and they are
hereby are, authorized, directed and empowered to prepare, execute and deliver
all such documents and instruments and to take all such actions as such officer
or officers may deem necessary or advisable in order to carry out and perform
the purposes of the foregoing resolutions; and
RESOLVED FURTHER, that any actions heretofore taken by any officer of the
Corporation in connection with the foregoing resolutions be, and they hereby
are, approved, affirmed, adopted and ratified.
IN WITNESS WHEREOF, the undersigned have caused the foregoing actions to
be executed as of the 22nd day of October, 2001.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
2
ATTACHMENT 1
FORM OF AMENDMENT
See attached.
Attachment 1
SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT
This Second Amendment to Note Purchase Agreement (the "Agreement") is made
and entered into as of this 22nd day of October, 2001, by and among ▇▇▇▇▇ ▇▇▇▇▇▇
U.S. FUNDING, INC., a Nevada corporation ("Issuer"), ▇▇▇▇▇ ▇▇▇▇▇▇ N.V., a
company incorporated under the laws of the Netherlands with its corporate seat
in Amsterdam, the Netherlands (the "Guarantor"), ▇▇▇▇▇ ▇▇▇▇▇▇ AUST. INVESTCO
PTY. LIMITED, a company organized under the laws of Australia (the "First
Subsidiary Guarantor"), ▇▇▇▇▇ ▇▇▇▇▇▇ AUSTRALIA FINANCE PTY. LIMITED, a company
organized under the laws of Australia (the "Second Subsidiary Guarantor"), ▇▇▇▇▇
▇▇▇▇▇▇ INTERNATIONAL FINANCE B.V., a company incorporated under the laws of the
Netherlands with its corporate seat in Amsterdam, the Netherlands (the "Third
Subsidiary Guarantor"), and the holders of notes listed on the signature pages
hereof under the heading "Noteholders" (each a "Noteholder" and, collectively,
the "Noteholders") with reference to the following facts. Capitalized terms used
herein which are not otherwise defined shall have the meaning ascribed to them
in the Purchase Agreement (defined below).
A. Issuer presently has obligations under Guaranteed Senior Notes (the
"Notes") in the aggregate principal amount of $225,000,000 issued to the
purchasers under those certain Note Purchase Agreements with Issuer and the
Guarantor, each dated as of November 5, 1998, as amended by that certain
Assignment and Assumption Agreement and First Amendment to Note Purchase
Agreement dated as of January 24, 2000 (collectively, the "Purchase Agreement").
B. In connection with the establishment of a Dutch finance scheme (the
"Finance Scheme"), the Second Subsidiary Guarantor is being replaced as the
principal borrowing entity of the ▇▇▇▇▇ ▇▇▇▇▇▇ family of companies by the Third
Subsidiary Guarantor. The Issuer wishes to cause the Third Subsidiary Guarantor
to become a guarantor of the Notes and to amend the Note Purchase Agreement (i)
to add borrowings by the Third Subsidiary Guarantor as exclusions under the
definition of "Priority Debt" in the Note Purchase Agreement and (ii) to clarify
the applicability of certain other sections to the Third Subsidiary Guarantor.
C. This Agreement is required under Section 19 of the Purchase Agreement
as a form of written consent to the amendment of certain provisions of the
Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, Issuer, Guarantor, the First Subsidiary Guarantor, the
Second Subsidiary Guarantor, the Third Subsidiary Guarantor and the undersigned
Noteholders agree as follows:
1. EFFECTIVE DATE The effective date of this Agreement shall be the date
of satisfaction of the conditions set forth in Section 15 below (the "Effective
Date").
2. AMENDMENT TO SECTION 7.2(a). Section 7.2(a) of the Purchase Agreement
shall be completely replaced by a new Section 7.2(a), which shall read in full
as follows:
(a) Covenant Compliance - (i) the information (including detailed
calculations) required in order to establish whether the Obligors were in
compliance with the requirements of Sections 10.2, 10.3, 10.4. 10.5, 10.6
and 10.7, during the quarterly or annual period covered by the statements
then being furnished (including with respect to each such Section, where
applicable, the calculations of the maximum or minimum amount, ratio or
percentage, as the case may be, permissible under the terms of such
Sections, and the calculation of the amount, ratio or percentage then in
existence) and (ii) with respect only to financial statements delivered
pursuant to Section 7.1(b), the information (including detailed
calculations) required in order to establish whether the Obligors were in
compliance with the requirements of Section 10.9 during the annual period
covered by the statements then being furnished; and
3. AMENDMENT TO SECTION 9.8. Section 9.8 of the Purchase Agreement shall
be completely replaced by a new Section 9.8, which shall read in full as
follows:
9.8. OWNERSHIP OF ISSUER AND SUBSIDIARY GUARANTORS; ACTIVITIES.
Subject only to the provisions of Section 10.2(i), the Guarantor
will at all times maintain the Issuer, the First Subsidiary Guarantor, the
Second Subsidiary Guarantor and the Third Subsidiary Guarantor as
Wholly-Owned Subsidiaries of the Guarantor, and the capital stock of, and
any other ownership interests in, the Issuer, the First Subsidiary
Guarantor, the Second Subsidiary Guarantor and the Third Subsidiary
Guarantor will at all times remain free of any Lien.
4. AMENDMENT TO SECTION 10.3. Section 10.3 of the Purchase Agreement shall
be amended to delete existing subsection (f) and to replace it with a new
subsection (f), which shall read in full as follows:
(f) Liens on property or assets of the Guarantor or any of its
Subsidiaries securing Debt owing to the Guarantor or to any of its
Wholly-Owned Subsidiaries (other than the First Subsidiary Guarantor, the
Second Subsidiary Guarantor or the Third Subsidiary Guarantor);
5. ADDITION OF SECTION 10.9. A new Section 10.9 is hereby added to the
Purchase Agreement as follows:
10.9 INTEREST COVERAGE
EBIT will not be less than twice Net Interest Charges in any year
ending 31 March.
2
6. AMENDMENT TO SECTION 13. Section 13 of the Purchase Agreement shall be
amended to delete existing subsection (1) and to replace it with a new
subsection (1), which shall read in full as follows:
(1) any Subsidiary Guarantee shall at any time, for any reason,
cease to be in full force and effect or shall be declared to be null and void in
whole or in any material part by the final judgment (which is non-appealable or
has not been stayed pending appeal or as to which all rights to appeal have
expired or been exhausted) of any Governmental Authority having jurisdiction, or
the validity or enforceability of any Subsidiary Guarantee shall be contested by
or on behalf of the Guarantor or any of its Subsidiaries, or the Guarantor or
any such Subsidiary shall renounce a Subsidiary Guarantee or deny that the First
Subsidiary Guarantor, the Second Subsidiary Guarantor or the Third Subsidiary
Guarantor, as the case may be, is bound thereby or has any further liability
thereunder.
7. AMENDMENT TO SCHEDULE B. Schedule B of the Purchase Agreement is
amended to add new definitions of the terms set forth below, which shall read in
full as follows (and shall replace the definitions of any of the same terms in
the Purchase Agreement):
"BANK CREDIT AGREEMENTS" means (i) the four separate Revolving Loan
Agreements, three of which are dated on or about November 3, 1998 and one
of which (BankOne, N.A.) is dated on or about April 20, 2000 (together
with any related agreements and instruments, the "Australian Bank Loan
Agreements"), between the Third Subsidiary Guarantor as successor to the
Second Subsidiary Guarantor (as borrower), the Issuer, the First
Subsidiary Guarantor and the Guarantor (as guarantors) and, respectively,
Australia and New Zealand Banking Group, BNP Paribas, Westdeutsche
Landesbank Girozentrale and BankOne N.A. (the "Bank Lenders") under which
the Third Subsidiary Guarantor may borrow up to an aggregate of
A$200,000,000 (A$ referring to Australian dollars) as such agreements
may be amended, modified, refinanced or replaced with the same or
different lenders, and (ii) the six separate Standby Loan Agreements, two
of which are dated on or about November 4, 1998, one of which
(Westdeutsche Landesbank Girozentrale) is dated on or about January 24,
2000, two of which (Bank One N.A. and BBL Australia Limited are dated on
or about December 10, 1998 and one of which (▇▇▇▇▇ Fargo HSBC Trade Bank,
N.A.) is dated on or about July 20, 2000 (together with any related
agreements and instruments, the "Standby Facilities"), between the Third
Subsidiary Guarantor as successor to the Second Subsidiary Guarantor (as
borrower), the Guarantor, the Issuer and the First Subsidiary Guarantor
(as guarantors) and, respectively, each of the Bank Lenders, BBL Australia
Limited and ▇▇▇▇▇ Fargo HSBC Trade Bank, N.A., under which the Third
Subsidiary Guarantor may borrow up to an aggregate of $117,500,000 (or the
equivalent in Australian currency) as such agreements may be amended,
modified, refinanced or replaced with the same or different lenders.
"EBIT" means the operating profit of the Guarantor and its
Subsidiaries before adjustments for abnormal or exceptional items and
income tax but after adding
3
back Net Interest Charges, determined in each case by reference to the
latest audited consolidated financial statements of the Guarantor and its
Subsidiaries delivered to the Noteholders under Section 7.1 (b) of this
Agreement.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties
of the Guarantor and its Subsidiaries taken as a whole, or (b) the ability
of the Issuer or the Guarantor to perform its obligations under this
Agreement and the Notes, or (c) the validity or enforceability of this
Agreement or the Notes, or (d) the ability of the First Subsidiary
Guarantor, the Second Subsidiary Guarantor or the Third Subsidiary
Guarantor to perform its obligations under its Subsidiary Guarantee, or
(e) the validity or enforceability of any Subsidiary Guarantee.
"NET INTEREST CHARGES" means all continuing, regular or periodic
costs, charges and expenses (including interest, discount costs, charges
and expenses (including but not limited to interest, discount costs and
any and all fees associated with or incurred under any Debt)) incurred by
the Guarantor and any of its Subsidiaries in effecting, servicing or
maintaining at any time its Debt, less interest income received by or
arising to the Guarantor or such Subsidiaries 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 Section 7.1(b) of this
Agreement.
"PRIORITY DEBT" means (a) all Debt of the Guarantor and the
Subsidiaries secured by any Lien with respect to any property owned by the
Guarantor or any of its Subsidiaries and (b) all unsecured Debt of
Subsidiaries, except Debt owed to the Guarantor or a Wholly-Owned
Subsidiary, Debt of the First Subsidiary Guarantor, the Second Subsidiary
Guarantor or the Third Subsidiary Guarantor and Debt of the Issuer, the
First Subsidiary Guarantor, the Second Subsidiary Guarantor or the Third
Subsidiary Guarantor under this Agreement, the Notes, the Subsidiary
Guarantees, the Australian Bank Loan Agreements (and Guaranties thereof)
and the first $100,000,000 of the Standby Facilities (and Guaranties
thereof).
"THIRD SUBSIDIARY GUARANTOR" means ▇▇▇▇▇ ▇▇▇▇▇▇ International
Finance B.V., a company organized under the laws of the Netherlands with
its corporate seat in Amsterdam, the Netherlands, and its permitted
successors under the Subsidiary Guarantee.
"SUBSIDIARY GUARANTEE" means each of the Subsidiary Guarantees
executed and delivered by the First Subsidiary Guarantor, the Subsidiary
Guarantee executed and delivered by the Second Subsidiary Guarantor and
the Subsidiary Guarantee executed and delivered by the Third Subsidiary
Guarantor, each substantially in the form of Exhibit 4.10 hereto.
8. STATUS OF PURCHASE AGREEMENT. The provisions of the Purchase Agreement
are in full force and effect and shall remain unchanged, except as provided by
this Agreement.
4
9. INCONSISTENCIES. In the event of any inconsistency between the
provisions of this Agreement and any provision in the Purchase Agreement, the
terms and provisions of this Agreement shall govern.
10. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the law of
the State of New York excluding choice-of-law principles of the law of such
State that would require the application of the laws of a jurisdiction other
than such State.
11. SEVERABILITY. If any paragraph, clause or provision of this Agreement
is construed or interpreted by a court of competent jurisdiction to be void,
invalid or unenforceable, such decision shall not affect the remaining
paragraphs, clauses or provisions of this Agreement.
12. BINDING ON SUCCESSORS AND ASSIGNS. This Agreement applies to, inures
to the benefit of, and binds the Issuer, the Guarantor, the First Subsidiary
Guarantor, the Second Subsidiary Guarantor the Third Subsidiary Guarantor and
the Noteholders and their respective heirs, legatees, devisees, administrators,
executors, successors and assigns.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one instrument. Each counterpart may consist of a number of copies
hereof, each signed by less than all, but together signed by all, of the parties
hereto. Any party hereto may execute and deliver a counterpart of this Agreement
by delivering by facsimile transmission a signature page of this Agreement
signed by such party and such facsimile signature shall be treated in all
respects as having the same effect as an original signature.
14. REPRESENTATIONS AND WARRANTIES OF THE ISSUER AND THE GUARANTOR. The
Issuer and the Guarantor jointly and severally represent and warrant to the
Noteholders that:
14.1. ORGANIZATION; POWER AND AUTHORITY. The Third Subsidiary
Guarantor is a corporation duly incorporated and validly existing under the laws
of the Netherlands and has all corporate power and authority to own or hold
under lease the properties it purports to own or hold under lease, to transact
the business it transacts and proposes to transact, to execute and deliver its
Subsidiary Guarantee and to perform the provisions thereof.
14.2. AUTHORIZATION, ETC. This Agreement has been duly authorized by
all necessary corporate action on the part of the Issuer, and this Agreement
constitutes a legal, valid and binding obligation of the Issuer enforceable
against the Issuer in accordance with its terms, except as such enforceability
may be limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). The
Subsidiary Guarantee has been duly authorized by all necessary corporate action
on the part of the Third Subsidiary Guarantor, and such Subsidiary Guarantee
constitutes a legal, valid and binding obligation of
5
the Third Subsidiary Guarantor enforceable against the Third Subsidiary
Guarantor in accordance with its terms, except as such enforceability may be
limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally and
(ii) general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
14.3. ORGANIZATION AND OWNERSHIP OF SHARES OF SUBSIDIARIES;
AFFILIATES
(a) Schedule 14.3 contains complete and correct lists of the
Guarantor's Subsidiaries, showing, as to each Subsidiary, the correct name
thereof, the jurisdiction of its organization or incorporation, and the
percentage of shares of each class of its capital stock or similar equity
interests outstanding owned by the Guarantor and each other Subsidiary.
(b) All of the outstanding shares of capital stock or similar
equity interests of each Subsidiary shown in Schedule 14.3 as being owned by the
Guarantor and its Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by the Guarantor or another Subsidiary free and
clear of any Lien (except as otherwise disclosed in Schedule 14.3).
(c) Each of the Issuer, the Guarantor, the First Subsidiary
Guarantor, the Second Subsidiary Guarantor and the Third Subsidiary Guarantor is
a corporation or other legal entity duly organized or incorporated, validly
existing and in good standing under the laws of its jurisdiction of organization
or incorporation, and is duly qualified as a foreign corporation or other legal
entity and, where such concept is relevant, is in good standing in each
jurisdiction in which such qualification is required by law, other than those
jurisdictions as to which the failure to be so qualified or in good standing
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. Each of the Issuer, the Guarantor, the First Subsidiary
Guarantor, the Second Subsidiary Guarantor and the Third Subsidiary Guarantor
has the corporate or other power and authority to own or hold under lease the
properties it purports to own or hold under lease and to transact the business
it transacts and proposes to transact.
(d) No Subsidiary is a party to, or otherwise subject to any
legal restriction or any agreement (other than restrictions permitted by Section
10.8 of the Purchase Agreement and customary limitations imposed by corporate
law statutes) restricting the ability of such Subsidiary to pay dividends out of
profits or make any other similar distributions of profits to the Guarantor or
any of its Subsidiaries that owns outstanding shares of capital stock or similar
equity interests of such Subsidiary.
14.4. COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC. The execution,
delivery and performance by the Issuer of this Agreement, the performance by the
Issuer of the Purchase Agreement and the Notes and the execution, delivery and
performance by the Third Subsidiary Guarantor of the Subsidiary Guarantee will
not (i) contravene, result in any breach of, or constitute a default under, or
result in the creation of any Lien in respect of any property of the Guarantor,
the Issuer or any Subsidiary under, any indenture, mortgage, deed
6
of trust, loan, purchase or credit agreement, lease, corporate charter or
by-laws, or any other agreement or instrument to which the Guarantor, the
Issuer or any Subsidiary is bound or by which the Guarantor, the Issuer or any
Subsidiary or any of their respective properties may be bound or affected, (ii)
conflict with or result in a breach of any of the terms, conditions or
provisions of any order, judgment, decree, or ruling of any court, arbitrator or
Governmental Authority applicable to the Guarantor, the Issuer or any Subsidiary
or (iii) violate any provision of any statute or other rule or regulation of any
Governmental Authority applicable to the Guarantor, the Issuer or any
Subsidiary.
14.5. GOVERNMENTAL AUTHORIZATIONS, ETC. No consent, approval or
authorization of, or registration, filing or declaration with, any Governmental
Authority is required in connection with the execution, delivery or performance
by Issuer, the Guarantor, the First Subsidiary Guarantor, the Second Subsidiary
Guarantor or the Third Subsidiary Guarantor of this Agreement or by the Third
Subsidiary Guarantor of its Subsidiary Guarantee.
14.6. LITIGATION. Schedule 14.6 sets forth a reasonably detailed
description of all material litigation and other proceedings involving or
affecting the Guarantor and its Subsidiaries.
14.7. EXISTING DEBT. Except as described therein. Schedule 14.7 sets
forth a complete and correct list of all outstanding Debt of the Obligors and
the Subsidiaries as of September 30, 2001, since which date there has been no
Material change in the amounts, interest rates, sinking funds, installment
payments or maturities of the Debt of the Obligors or the Subsidiaries. Neither
the Obligors nor any Subsidiary are in default and no waiver of default is
currently in effect, in the payment of any principal or interest on any Debt of
any Obligor or any such Subsidiary and no event or condition exists with respect
to any Debt of any Obligor or any Subsidiary that would permit (or that with
notice or the lapse of time, or both, would permit) one or more Persons to cause
such Debt to become due and payable before its stated maturity or before its
regularly scheduled dates of payment.
15 CONDITIONS TO EFFECTIVENESS. The effectiveness of this Agreement shall
be subject to the satisfaction of each of the following conditions precedent:
15.1 EXECUTED AGREEMENT. Issuer shall have received one or more
counterparts of this Agreement executed on behalf of the Required Holders.
15.2 THIRD SUBSIDIARY GUARANTY. The Third Subsidiary Guarantor shall
have executed and delivered a Subsidiary Guarantee substantially in the form as
heretofore delivered to the Noteholders and containing the provisions set forth
in Section 11 of the Purchase Agreement.
15.3 OPINIONS OF COUNSEL. Noteholders shall have received opinions
of Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Australian counsel), De Brauw Blackstone Westbroek
N.V. (Netherlands counsel) and ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (U.S. counsel), in
customary form
7
and subject only to customary qualifications, addressed to each Noteholder,
covering such matters as may be reasonably required by counsel to the
Noteholders.
15.4 REPRESENTATIONS AND WARRANTIES; NO DEFAULT. On the Effective
Date, after giving effect to the amendment of the Purchase Agreement
contemplated hereby:
(a) the representations and warranties contained in Section 14
hereof and the representations and warranties contained in Section 5.8(a),
5.8(b), 5.9, 5.10, 5.11, 5.12, 5.17 and 5.18 of the Purchase Agreement shall be
true and correct on and as of the Effective Date as though made on and as of
such date; and
(b) no Default or Event of Default shall have occurred and be
continuing.
15.5 COMPLIANCE CERTIFICATES.
(a) OFFICER'S CERTIFICATE. Issuer shall deliver to each
Noteholder an Officer's Certificate, dated as of the Effective Date, certifying
that the condition specified in Section 15.4 of this Section have been
fulfilled.
(b) SECRETARY'S CERTIFICATE. Issuer shall have delivered to
each Noteholder a certificate certifying as to the resolutions attached thereto
and other corporate proceedings relating to the authorization, execution and
delivery of this Agreement and the Subsidiary Guarantee and the incumbency and
authority of persons executing such documents.
15.6 EVIDENCE OF CONSENT TO RECEIVE SERVICE OF PROCESS. Each
Noteholder shall have received, in form and substance reasonably satisfactory to
such Noteholder, evidence of the consent of CT Corporation System in New York,
New York to the appointment and designation provided for by Section 24.6 of the
Purchase Agreement (and the payment of all fees related thereto).
15.7 PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings
in connection with the transactions contemplated by this Agreement and all the
documents and instruments incident to such transactions shall be satisfactory to
each Noteholder and its special counsel, and such Noteholder and its special
counsel shall have received all such counterpart originals or certified or other
copies of such documents as it or they may reasonably request.
15.8 NOTICE OF EFFECTIVENESS OF FINANCE SCHEME. Each Noteholder
shall have received notice that the Finance Scheme has been implemented and the
Third Subsidiary Guarantor shall have become the borrower under the Bank Credit
Agreements.
15.9 PAYMENT OF AMENDMENT FEE. Each Noteholder shall have received
its pro rata share of an amendment fee in the aggregate amount of $225,000.
8
16. LEGAL FEES. The Obligors jointly and severally will pay all legal
costs and expenses (including reasonable attorneys' fees of ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇▇) incurred by the Noteholders in connection with this Agreement.
17. CONSENT AND CONFIRMATION BY GUARANTORS. The Guarantor, the First
Subsidiary Guarantor and the Second Subsidiary Guarantor expressly consent to
this Agreement and confirm that their respective Guaranties of the Notes and the
Purchase Agreement, as amended, remain in full force and effect.
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9
OFFICER'S CERTIFICATE
Reference is made to the Second Amendment to Note Purchase Agreement (the
"Amendment") dated as of October 22, 2001 by and among ▇▇▇▇▇ ▇▇▇▇▇▇ U.S.
Funding, Inc., a Nevada corporation (the "Company"), ▇▇▇▇▇ ▇▇▇▇▇▇ N.V., ▇▇▇▇▇
▇▇▇▇▇▇ Aust. Investco Pty. Limited, ▇▇▇▇▇ ▇▇▇▇▇▇ Australia Finance Pty. Limited,
▇▇▇▇▇ ▇▇▇▇▇▇ International Finance B.V. and certain institutional investors as
listed on the signature pages thereto. Unless otherwise defined herein,
capitalized terms used herein have the respective meanings assigned to them in
the Purchase Agreement (as defined in the Amendment).
The undersigned hereby certifies as of the date hereof that he is the Chief
Financial Officer of the Company and that, as such, he is authorized to execute
and deliver this certificate to the Noteholders on behalf of the Company. The
undersigned further certifies that after giving effect to the amendment of the
Purchase Agreement contemplated by the Amendment:
1. The representations and warranties of the Company contained in Section 14
of the Amendment and Sections 5.8(a), 5.8(b), 5.9, 5.10, 5.11, 5.12, 5.17
and 5.18 of the Purchase Agreement are true and correct on and as of the
date hereof as though made on and as of the date hereof.
2. No Default or Event of Default has occurred or is continuing.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of October
22, 2001.
▇▇▇▇▇ ▇▇▇▇▇▇ U.S. FUNDING INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
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A REGISTERED LIMITED LIABILITY PARTNERSHIP
INCLUDING PROFESSIONAL CORPORATIONS
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ FAX
▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇
November 1, 2001
(▇▇▇) ▇▇▇-▇▇▇▇ C 46223-00004
The Noteholders listed on
Schedule A hereto
Re: Second Amendment to Note Purchase Agreement
dated as of October 22, 2001
Ladies and Gentlemen:
We have acted as special counsel to ▇▇▇▇▇ ▇▇▇▇▇▇ U.S. Funding, Inc.,
a Nevada corporation (the "Issuer"), ▇▇▇▇▇ ▇▇▇▇▇▇ N.V., a company incorporated
under the laws of The Netherlands (the "Guarantor"), ▇▇▇▇▇ ▇▇▇▇▇▇ Aust. Investco
Pty. Limited, a company organized under the laws of Australia (the "First
Subsidiary Guarantor"), ▇▇▇▇▇ ▇▇▇▇▇▇ Australia Finance Pty. Limited, a company
organized under the laws of Australia (the "Second Subsidiary Guarantor"), and
▇▇▇▇▇ ▇▇▇▇▇▇ International Finance B.V., a company incorporated under the laws
of The Netherlands (the "Third Subsidiary Guarantor"), in connection with the
preparation of:
(i) the Note Purchase Agreement dated as of November 5, 1998 (the
"Purchase Agreement") by and among the Issuer, the Guarantor and certain
purchasers as listed on Schedule A hereto (the "Noteholders");
(ii) the Second Amendment to Note Purchase Agreement dated as of
October 22, 2001 (the "Amendment") by and among the Issuer, the Guarantor,
the First Subsidiary Guarantor, Second Subsidiary Guarantor, the Third
Subsidiary Guarantor and the Required Holders; and
(iii) the Guaranty dated as of October 22, 2001 (the "Guaranty")
entered into by the Third Subsidiary Guarantor in favor of the
Noteholders.
LOS ANGELES NEW YORK WASHINGTON, D.C. SAN FRANCISCO PALO ALTO
LONDON PARIS ORANGE COUNTY CENTURY CITY DALLAS DENVER
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
November 1, 2001
Page 2
This opinion is being furnished to you pursuant to Section 15.3 of
the Amendment. The Purchase Agreement, as previously amended by that certain
Assignment and Assumption Agreement and First Amendment to Note Purchase
Agreement dated as of January 24, 2000 and as further amended by the Amendment,
is referred to herein as the "Amended Purchase Agreement." The Amended Purchase
Agreement, the Amendment and the Guaranty are collectively referred to herein as
the "Documents." The Issuer, the Guarantor, the First Subsidiary Guarantor, the
Second Subsidiary Guarantor and the Third Subsidiary Guarantor are collectively
referred to as the "Obligors." Each capitalized term used and not defined herein
has the meaning assigned to that term in the Amended Purchase Agreement.
We have assumed with your permission that:
a) The signatures on all documents examined by us are genuine,
all individuals executing such documents had all requisite
legal capacity and competency and were duly authorized, the
documents submitted to us as originals are authentic and the
documents submitted to us as certified or reproduction copies
conform to the originals;
b) Each of the Noteholders executing the Amendment has all
requisite power and authority to execute, deliver and perform
its obligations under the Amendment, the execution and
delivery of the Amendment by each such Noteholder and the
performance of its obligations thereunder have been duly
authorized by all necessary action of such Noteholder and do
not violate any law, regulation, order, judgment or decree
applicable to such Noteholder, and each of the Amendment and
the Amended Purchase Agreement is a legal, valid and binding
obligation of each such Noteholder, enforceable against such
Noteholder in accordance with its terms;
c) Each of the Obligors (other than the Issuer) has been duly
incorporated and is a validly existing corporation in good
standing under the laws of its jurisdiction of incorporation,
has the requisite corporate power and authority to execute and
deliver the Amendment and to perform its obligations under the
Documents, has taken all necessary corporate action to
authorize the execution and delivery of the Amendment and the
performance of its obligations under the Documents and has
duly executed and delivered the Amendment;
d) Except as reflected in the Documents, there are no agreements
or understandings between or among any Obligor, the
Noteholders or third parties that would expand, modify or
otherwise affect the terms of the Documents or the respective
rights or obligations of the parties thereunder; and
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
November 1, 2001
Page 3
e) The assumptions set forth in paragraphs a), b) and c) of our
opinion letter dated November 5, 1998 addressed to the
Noteholders remain true and correct as of the date hereof.
In rendering this opinion, we have made such inquiries and examined,
among other things, originals or copies, certified or otherwise identified to
our satisfaction, of such records, agreements, certificates, instruments and
other documents as we have considered necessary or appropriate for purposes of
this opinion. As to certain factual matters, we have relied upon the
representations and warranties of the Obligors in the Documents, certificates of
officers of the Obligors or certificates obtained from public officials. We have
also, with your permission and without independent investigation, relied upon,
and assumed the correctness of the conclusions expressed in, the opinions of
even date of De Brauw Blackstone Westbroek N.V. and ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ with
respect to all matters covered thereby.
Except as expressly stated otherwise herein, whenever an opinion
herein with respect to the existence or absence of facts is stated to be to our
knowledge, such statement is intended to signify that, during the course of our
representation of the Obligors, as herein described, no information has come to
the attention of the lawyers working on substantive matters for the Obligors
during the prior twelve (12) months (and who are still employed by this firm)
that would give us actual knowledge of facts contrary to the existence or
absence of the facts indicated. However, we have not undertaken any independent
investigation to determine the existence or absence of such facts, and no
inference as to our knowledge of the existence or absence of such facts should
be drawn from our representation of the Obligors or any affiliate thereof.
Based on the foregoing and in reliance thereon, and subject to the
assumptions, exceptions, qualifications and limitations set forth herein, we are
of the opinion that:
1. The Issuer is a validly existing corporation in good standing
under the laws of the State of Nevada and has all requisite corporate power and
authority to execute, deliver and perform its obligations under the Documents to
which it is a party.
2. The execution and delivery by the Issuer of the Documents to
which it is a party and the performance of its obligations thereunder have been
duly authorized by all necessary corporate action.
3. The Amended Purchase Agreement and the Amendment each constitutes
a legal, valid and binding obligation of each of the Issuer and the Guarantor,
enforceable against it in accordance with its terms.
4. The Amendment constitutes a legal, valid and binding obligation
of each of the First Subsidiary Guarantor, the Second Subsidiary Guarantor and
the Third Subsidiary Guarantor, enforceable against it in accordance with its
terms.
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
November 1, 2001
Page 4
5. The Guaranty constitutes a legal, valid and binding obligation of
the Third Subsidiary Guarantor, enforceable against it in accordance with its
terms.
6. The execution and delivery by each of the Obligors of the
Documents to which each is a party and the performance of its obligations under
the Documents do not result in a breach or violation of Regulations U or X of
the Board of Governors of the Federal Reserve System. Regulation T of the Board
of Governors of the Federal Reserve System does not apply to any Noteholder that
is not a broker or a dealer (as defined in sections 3(a)(4) and 3(a)(5) of the
Securities Exchange Act of 1934 (the "1934 Act"), any member of a national
securities exchange or any person associated with a broker or dealer (as defined
in section 3(a)(18) of the 1934 Act), except for business entities controlling
or under common control with a Noteholder.
7. No Obligor is an "investment company" or, to our knowledge, a
company" controlled by an investment company" within the meaning of the
Investment Company Act of 1940, as amended.
8. The execution, delivery and performance by each Obligor of the
Documents to which each is a party do not and will not (i) violate or result in
a breach or default under any order, judgment or decree of any court or other
agency of government of the State of New York or the United States of America
binding on such Obligor of which we have knowledge, (ii) violate any law or
regulation of the State of New York or the United States of America applicable
to any Obligor that, in our experience, is generally applicable to transactions
in the nature of those contemplated by the Documents, or (iii) require any
authorization, consent, waiver or approval of any governmental authority or
regulatory body of the State of New York or the United States of America, except
for filings and authorizations as may be required under any securities or Blue
Sky laws and such authorizations, consents, waivers or approvals that, if not
made or obtained, would not have a material adverse effect on any Obligor or on
the ability of each Obligor to perform its obligations under the Documents to
which it is a party and would not expose any Noteholder to liability.
9. To our knowledge, there is no action, suit or proceeding pending
or threatened in the United States against any Obligor of the nature described
in Section 5.8(a) of the Amended Purchase Agreement or in which an injunction or
order has been entered preventing or adversely affecting consummation of the
transactions that are contemplated by the Amendment to be consummated by the
Obligors on the Effective Date.
The foregoing opinions are subject to the following exceptions,
qualifications and limitations:
A. We render no opinion herein as to matters involving the laws of
any jurisdiction other than the State of New York and the United States of
America and, for the limited purposes of paragraphs 1 and 2 above, the Nevada
Corporation Law. We are not engaged in practice in the State of Nevada; however,
we are generally familiar with the Nevada
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
November 1, 2001
Page 5
Corporation Law as currently in effect and have made such inquiries as we
consider necessary to render the opinions contained in paragraphs 1 and 2. This
opinion is limited to the effect of the present state of the laws of the State
of New York and the United States of America and, to the limited extent set
forth above, the State of Nevada and the facts as they currently exist. We
assume no obligation to revise or supplement this opinion in the event of future
changes in such laws or the interpretations thereof or such facts.
B. Our opinions set forth in paragraphs 3, 4 and 5 are subject to
(i) the effect of any bankruptcy, insolvency, reorganization, moratorium,
arrangement or similar laws affecting the enforcement of creditors' rights
generally (including, without limitation, the effect of statutory or other laws
regarding fraudulent transfers or preferential transfers or distributions by
corporations to stockholders) and (ii) general principles of equity, including
without limitation concepts of materiality, reasonableness, good faith and fair
dealing and the possible unavailability of specific performance, injunctive
relief or other equitable remedies, regardless of whether enforceability is
considered in a proceeding in equity or at law.
C. We express no opinion regarding: (i) the effectiveness of any
waiver (whether or not stated as such) under the Documents of, or any consent
thereunder relating to, any unknown future rights or the rights of any party
thereto existing, or duties owing to it, as a matter of law; (ii) the
effectiveness of any waiver (whether or not stated as such) contained in the
Documents of rights of any party, or duties owing to it, that is broadly or
vaguely stated or does not describe the right or duty purportedly waived with
reasonable specificity; (iii) the effectiveness of provisions relating to
indemnification, exculpation or contribution, to the extent such provisions may
be held unenforceable as contrary to public policy or federal or state
securities laws; (iv) the effectiveness of any provision in any Document waiving
the right to object to venue in any court; (v) the effectiveness of any consent
or agreement to submit to the jurisdiction of any Federal Court; (vi) the
effectiveness of any waiver of the right to jury trial; (vii) the effect on the
enforceability of the Amended Purchase Agreement against the Guarantor or on the
enforceability of the Guaranty against the Third Subsidiary Guarantor of any
facts or circumstances occurring after the date of the Purchase Agreement that
would constitute a defense to the obligation of a surety, unless such defense
has been waived effectively by such Guarantor; (viii) the effectiveness of any
provision of the Documents requiring written amendments or waivers of such
documents insofar as it suggests that oral or other modifications, amendments or
waivers could not be effectively agreed upon by the parties or that the doctrine
of promissory estoppel might not apply; (ix) the effectiveness of any provision
purporting to establish evidentiary standards; or (x) the effectiveness of any
provision to the effect that every right or remedy is cumulative and may be
exercised in addition to any other right or remedy or that the election of some
particular remedy does not preclude recourse to one or more others.
D. In rendering our opinions expressed in paragraph 8, while we
advise you that (subject to the other assumptions, exceptions, qualifications
and limitations herein) the Documents may be performed in a manner that does not
result in a violation, breach or default described therein, we express no
opinion as to whether the actual performance of the terms and
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
November 1, 2001
Page 6
provisions of the Documents after the date hereof will not violate any law,
regulation, order, judgment or decree applicable to any Obligor.
E. Our opinions in paragraphs 8(i) and 9 are based solely upon
inquiry of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP lawyers who have billed time to any
Obligor during the last twelve (12) months (and who are still employed by this
firm) and factual certificates of the Obligors.
F. For the purposes of our opinion in paragraph 6, we have assumed
without independent investigation that the representation and warranty set forth
in Section 5.14 of the Amended Purchase Agreement is true, correct and complete
as of the date hereof. We express no opinion with respect to any requirement
applicable to any Noteholder to obtain in good faith a Form FR U-1 signed by the
Obligors. Except as expressly set forth in paragraph 6, we express no opinion
with respect to Regulation T of the Board of Governors of the Federal Reserve
System.
G. We express no opinion as to the applicability to, or the effect
of noncompliance by, any Noteholder with any state or federal laws applicable to
the transactions contemplated by the Documents because of the nature of the
business of such Noteholder.
This opinion is rendered to the Noteholders in connection with the
Documents and may not be relied upon by any person other than the Noteholders or
by the Noteholders in any other context, provided that the Noteholders may
provide this opinion (i) to regulatory authorities should they so request or in
connection with their normal examinations, (ii) to the independent auditors and
attorneys of the Noteholders, (iii) pursuant to order or legal process of any
court or governmental agency, (iv) in connection with any legal action to which
any Noteholder is a party arising out of the transactions contemplated by the
Documents, or (v) to proposed permitted transferees of the interests of any
Noteholder under the Documents (provided that such delivery shall not constitute
a re-issue or reaffirmation of this opinion as of any date after the date
hereof). This opinion may not be quoted without the prior written consent of
this firm.
Very truly yours,
/s/ ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
-------------------------------------
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
[ALLENS ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LOGO]
ABN 47 702 595 758
The Chifley Tower
1 November 2001 ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Tel ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Fax ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
TO: Each Noteholder (as
defined in the Second Correspondence
Amendment GPO Box 5O
Agreement referred to ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
below) DX ▇▇▇ ▇▇▇▇▇▇
▇▇▇.▇▇▇.▇▇▇.▇▇
Dear Sirs
SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT
We have acted as Australian lawyers for ▇▇▇▇▇ ▇▇▇▇▇▇ Aust. Investco Pty Limited
(JHAI) and ▇▇▇▇▇ ▇▇▇▇▇▇ Australia Finance Pty Limited (JHAF) in connection with
the Second Amendment to Note Purchase Agreement (the SECOND AMENDMENT AGREEMENT)
dated 22 October 2001 between ▇▇▇▇▇ ▇▇▇▇▇▇ U.S Funding Inc, JHAI, JHAF, ▇▇▇▇▇
▇▇▇▇▇▇ N.V., ▇▇▇▇▇ ▇▇▇▇▇▇ International Finance B.V. and the Noteholders.
Definitions in the Second Amendment Agreement apply in this opinion but RELEVANT
COMPANY means JHAI or JHAF and RELEVANT JURISDICTION means the Commonwealth of
Australia or New South Wales.
No assumption or qualification in this opinion limits any other assumption or
qualification in it.
1. DOCUMENTS
We have examined the following documents:
(a) a fax copy of the executed Second Amendment Agreement;
(b) a certified copy of the constitution of JHAI;
(c) a copy of circulating resolutions of the directors of each Relevant
Company; and
(d) executed powers of attorney from each Relevant Company in connection
with the execution of the Second Amendment Agreement.
2. ASSUMPTIONS
For the purposes of giving this opinion we have assumed the following.
(a) The authenticity of all seals and signatures and of any duty stamp
or marking.
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(b) The completeness, and the conformity to original instruments, of all
copies submitted to us, and that any document (other than the Second
Amendment Agreement) or authorisation submitted to us continues in
full force and effect.
(c) The Second Amendment Agreement is within the capacity and powers of,
and has been validly authorised, executed and delivered by and is
binding on, the parties to it other than each Relevant Company.
(d) Each Relevant Company enters the Second Amendment Agreement and
carries out the transactions contemplated in the Second Amendment
Agreement for its benefit and for the purposes of its business.
(e) No entity has engaged or will engage in misleading or unconscionable
conduct or is or will be involved in or a party to any relevant
transaction or any associated activity in a manner or for a purpose
not evident on the face of the Second Amendment Agreement which
might render the Second Amendment Agreement or any relevant
transaction or associated activity in breach of law, void or
voidable.
(f) The Second Amendment Agreement has been or will be executed outside
each Relevant Jurisdiction.
(g) Insofar as any obligation under the Second Amendment Agreement is to
be performed in any jurisdiction other than a Relevant Jurisdiction,
its performance will not be illegal or unenforceable under the law
of that jurisdiction.
(h) The Second Amendment Agreement constitutes or will on execution
constitute legal, valid and binding obligations of each Relevant
Company under the laws of New York enforceable in competent courts
of that jurisdiction.
(i) Where a document has been submitted to us in draft form it will be
executed in the form of that draft.
(j) Formalities for execution by each Relevant Company required by the
law of the place of execution (other than a Relevant Jurisdiction)
of the Second Amendment Agreement have been or will be complied
with.
(k) The Second Amendment Agreement will be duly stamped in each
jurisdiction where stamp duty is payable.
3. QUALIFICATIONS
Our opinion is subject to the following qualifications.
(a) We express no opinion as to any laws other than the laws of each
Relevant Jurisdiction as in force at the date of this opinion.
(b) Our opinion that an obligation or document is enforceable means that
the obligation or document is of a type and form which courts in the
Relevant Jurisdictions enforce. It does not mean that the obligation
or document can necessarily be enforced in accordance with its terms
in all circumstances. In particular:
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(i) equitable remedies, such as injunction and specific
performance, are discretionary; and
(ii) the enforceability of an obligation, document or security
interest may be affected by statutes of limitation, by
estoppel, waiver and similar principles, by the doctrine of
frustration, by laws concerning insolvency, bankruptcy,
liquidation, administration, enforcement of security interests
or reorganisation, or by other laws generally affecting
creditors' or counterparties' rights or duties.
(c) We have relied on a search of public records of the Australian
Securities and Investments Commission on 1 November 2001. We note
that records disclosed by such search may not be complete or up to
date.
(d) We have relied on the assumptions specified in s129 of the
Corporations Act 2001(Cth) and note that you may do so unless you
knew or suspected that the assumption was incorrect.
(e) Any provision of the Second Amendment Agreement that certain
calculations, determinations or certificates will be conclusive and
binding will not apply if those calculations, determinations or
certificates are fraudulent or manifestly inaccurate.
(f) Any clause providing for the severability of any provision of the
Second Amendment Agreement may not be enforceable in accordance with
its terms, as a court may reserve to itself a decision as to whether
any provision is severable.
(g) The obligation of a party under the Second Amendment Agreement to
pay interest on overdue amounts at a rate higher than the rate
applying before the amount fell due may be held to constitute a
penalty and be unenforceable.
(h) We express no opinion on any provision in the Second Amendment
Agreement requiring written amendments and waivers insofar as it
suggests that oral or other modifications, amendments or waivers
could not be effectively agreed on or granted between or by the
parties.
(i) The courts might not give full effect to an indemnity for legal
costs or for penalties on taxes.
(j) Insofar as our opinions in paragraph 4 relate to the performance of
the Second Amendment Agreement, those opinions are limited to the
principal transactions contemplated by the Second Amendment
Agreement. They do not extend to the performance of obligations
under other documents referred to in the Second Amendment Agreement.
(k) A judgment by a court may be given in some cases only in Australian
dollars.
(l) Purported waivers of statutory rights or agreements not to ▇▇▇ or
agreements to agree or negotiate or consult may not be enforceable.
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4. OPINION
Based on the assumptions and subject to the qualifications set out above
we are of the following opinion.
(a) Each Relevant Company is incorporated under the laws of the Relevant
Jurisdictions
(b) Each Relevant Company has the corporate power to enter into and
perform its obligations under the Second Amendment Agreement.
(c) The execution, delivery and performance by each Relevant Company of
the Second Amendment Agreement did not and will not violate in any
respect any existing provision of:
(i) any law of any Relevant Jurisdiction; or
(ii) its constitution.
(d) (i) The Second Amendment Agreement has been duly authorised by
each Relevant Company and is validly executed by each Relevant
Company in accordance with the law of each Relevant
Jurisdiction.
(ii) Under the law of each Relevant Jurisdiction, the law of the
State of New York will be applied to the Second Amendment
Agreement, and the Second Amendment Agreement will be
enforceable in competent courts of each Relevant Jurisdiction,
if the choice of that law was made in good faith, and except
to the extent that (without limiting the assumptions and
qualifications set out above):
(A) there are mandatory provisions of the law of the
Relevant Jurisdiction which must be applied to a
transaction covered by Second Amendment Agreement;
(B) any term of the Second Amendment Agreement or any
provision of the law of the State of New York applicable
to the Second Amendment Agreement, is contrary to the
public policy of the Relevant Jurisdiction;
(C) the availability or enforceability of certain rights and
remedies maybe governed or affected by the procedural
laws of the Relevant Jurisdiction in courts of the
Relevant Jurisdiction; and
(D) a court may determine that another court is a more
appropriate forum.
(iii) We are not aware of any mandatory provisions within the terms
of sub-paragraph (ii) above that affect enforceability save as
set out in the assumptions and qualifications above.
(e) All authorisations under the laws of any Relevant Jurisdiction now
obtainable and required in connection with the execution, delivery,
performance, validity or enforceability of the Second Amendment
Agreement have been obtained or effected and are in full force and
effect.
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[ALLENS ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LOGO]
(f) No stamp or registration or similar taxes or charges are payable
under the laws of any Relevant Jurisdiction in connection with the
execution, delivery, performance and enforcement of the Second
Amendment Agreement or any transaction contemplated by it other than
nominal duty and debits tax.
(g) Neither any Relevant Company nor any of its properties or assets has
any immunity from the jurisdiction of any court or from legal
process under the laws of any Relevant Jurisdiction.
(h) It is not necessary that any Noteholder should be licensed,
qualified or otherwise entitled to carry on business under the laws
of any Relevant Jurisdiction in order to enforce its rights under
the Second Amendment Agreement or by reason only of the execution,
delivery and performance of the Second Amendment Agreement.
(i) The courts of each Relevant Jurisdiction would give effect to the
irrevocable submission of the Relevant Companies to the jurisdiction
of the courts of the State of New York subject to an overriding
jurisdiction of the courts of each Relevant Jurisdiction to
determine that another court is a more appropriate forum.
(j) Any final and conclusive judgment of a court of the State of New
York, having jurisdiction recognised by the Relevant Jurisdiction,
in respect of an obligation of a Relevant Company under the Second
Amendment Agreement, which is for a fixed sum of money, would be
enforceable by action against the judgment debtor in the courts of
each Relevant Jurisdiction without a re-examination of the merits of
the issues determined by the proceedings in the court of New York
unless:
(i) the proceedings in the New York court involved a denial of the
principles of natural justice;
(ii) the judgment is contrary to the public policy of the Relevant
Jurisdiction;
(iii) the judgment was obtained by fraud or duress;
(iv) the judgment is a penal or revenue judgment; or
(v) there has been a prior judgment in another court between the
same parties concerning the same issues as are dealt with in
the New York judgment.
This opinion is addressed to the Noteholders in connection with the Second
Amendment Agreement and may not be relied upon by any other person other
than the Noteholders or by the Noteholders in any other context, provided
that the Noteholders may provide this opinion:
(a) to regulatory authorities should they so request or in connection
with their normal examinations;
(b) to the independent auditors and attorneys of the Noteholders;
(c) pursuant to order or legal process of any court or governmental
agency;
(d) in connection with any legal action to which any Noteholder is a
party arising out of the transactions contemplated by the Second
Amendment Agreement; or
Page 5
[ALLENS ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LOGO]
(e) to proposed permitted transferees of the interests of any Noteholder
under the Purchase Agreement (provided that such delivery shall not
constitute a reissue or reaffirmation of this opinion as of any date
after the date of this opinion).
Yours faithfully
/s/ ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
------------------------
Page 6
LINKLATERS
DE BRAUW BLACKSTONE WESTBROEK & ALLIANCE
ADVOCATEN NOTARISSEN BELASTINGADVISEURS
Tripolis 300 Burgerweeshuispad 301
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telefoon: (020) 5771771
Telefax: (020) 5771775
To the holders of Notes (as defined below)
listed in annex 1 (the "NOTEHOLDERS")
Jan ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ -- ▇▇▇▇▇▇▇▇
Amsterdam, 1 November 2001
Our ref.: f:\455\20175981\b013 (notes) final.doc\AH
Dear Sirs,
▇▇▇▇▇ ▇▇▇▇▇▇ INTERNATIONAL FINANCE B.V. AND ▇▇▇▇▇ ▇▇▇▇▇▇ N.V.
SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT AND GUARANTEE
1 INTRODUCTION
I have acted on behalf of De Brauw Blackstone Westbroek N.V. as Dutch
legal adviser (▇▇▇▇▇▇▇▇) to ▇▇▇▇▇ ▇▇▇▇▇▇ International Finance B.V., with
corporate seat in Amsterdam, ("INTERNATIONAL FINANCE") and ▇▇▇▇▇ ▇▇▇▇▇▇
N.V., with corporate seat in Amsterdam, (the "GUARANTOR") in connection
with the Agreements (as defined below).
2 DUTCH LAW
This opinion is limited to Dutch law as applied by the Dutch courts and
published and in effect on the date of this opinion. It is given on the
basis that all matters relating to it will be governed by, and that it
(including all terms used in it) will be construed in accordance with,
Dutch law.
DE BRAUW BLACKSTONE WESTBROEK
3 SCOPE OF INQUIRY; DEFINITIONS
For the purpose of this opinion, I have examined the following documents:
3.1 A photocopy of an executed copy of a note purchase agreement dated 5
November 1998 between ▇▇▇▇▇ ▇▇▇▇▇▇ Finance B.V. ("FINANCE") as issuer, the
Guarantor as guarantor and the purchasers listed in schedule A thereto
(the "NOTE PURCHASE AGREEMENT"), under which Finance has issued guaranteed
senior notes, series A through G, with an aggregate principle amount of
USD 225,000,000, which are stated to be unconditionally and irrevocable
guaranteed by the Guarantor (the "NOTES").
3.2 A faxed copy of an executed copy of an assignment and assumption agreement
and first amendment to note purchase agreement dated as of 24 January 2000
between Finance as assignor, the Guarantor as guarantor, ▇▇▇▇▇ ▇▇▇▇▇▇ U.S.
Funding, Inc. ("FUNDING") as assignee, ▇▇▇▇▇ ▇▇▇▇▇▇ Aust. Investco Pty.
Limited (the "FIRST SUBSIDIARY GUARANTOR") as first subsidiary guarantor,
and the holders of the Notes listed on the signature pages thereof (the
"FIRST AMENDMENT AGREEMENT").
3.3 A faxed copy of an executed copy of a second amendment to note purchase
agreement dated as of 22 October 2001 between Funding as issuer, the
Guarantor as guarantor, the First Subsidiary Guarantor as first subsidiary
guarantor, ▇▇▇▇▇ ▇▇▇▇▇▇ Australia Finance Pty. Limited as second
subsidiary guarantor, International Finance as third subsidiary guarantor,
and the Noteholders (the "SECOND AMENDMENT AGREEMENT").
3.4 A faxed copy of an executed copy of a subsidiary guarantee of
International Finance in favour of the Noteholders dated as of 22 October
2001 (the "GUARANTEE").
3.5 A notarial copy of International Finance's deed of incorporation and its
articles of association as most recently amended on 3 August 2001
according to the trade register extract referred to in paragraph 3.6, both
as filed with the chamber of commerce and industry for Amsterdam (the
"CHAMBER OF COMMERCE").
3.6 A faxed copy of a trade register extract regarding International Finance
provided by the Chamber of Commerce and dated 30 October 2001.
3.7 A faxed copy of a written resolution of International Finance's managing
board (bestuur) dated 11 October 2001, including a power of attorney
granted by International Finance to each of ▇.▇. ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇▇, Trust international management (▇.▇.▇.) B.V. ("▇.▇.▇."), ▇.▇.
▇▇▇▇▇▇▇, J.C.L. van ▇▇ ▇▇▇▇▇▇, A.M.L. Kuijpers and A.T. ▇▇▇▇▇▇▇▇ (the
"INTERNATIONAL FINANCE POWER OF ATTORNEY").
3.8 A faxed copy of a written resolution of ▇▇▇▇▇ ▇▇▇▇▇▇ Industries N.V. ("JHI
NV") in its stated
2
DE BRAUW BLACKSTONE WESTBROEK
capacity as International Finance's sole shareholder dated 12 October
2001.
3.9 A notarial copy of the Guarantor's deed of incorporation and its articles
of association as most recently amended on 31 October 2000 according to
the trade register extract referred to in paragraph 3.10, both as filed
with the Chamber of Commerce.
3.10 A faxed copy of a trade register extract regarding the Guarantor provided
by the Chamber of Commerce and dated 30 October 2001.
3.11 A faxed copy of a written resolution of the Guarantor's managing board
(bestuur) dated 9 October 2001, including a power of attorney granted by
the Guarantor to each of ▇.▇. ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇▇▇, S.E. ▇▇▇▇▇▇,
▇.▇.▇., ▇.▇. ▇▇▇▇▇▇▇, J.C.L. van ▇▇ ▇▇▇▇▇▇, A.M.L Kuijpers and A.T.
▇▇▇▇▇▇▇▇ (the "GUARANTOR POWER OF ATTORNEY").
3.12 A faxed copy of a written resolution of JHI NV and International Finance
in their stated capacity as the Guarantor's only shareholders dated 10
October 2001.
3.13 A notarial copy of JHI NV's deed of Incorporation, a notarial copy of the
deed of its transformation from a private company with limited liability
into a limited liability company and its articles of association as most
recently amended on 7 September 2001 according to the trade register
extract referred to in paragraph 3.14, all as filed with the Chamber of
Commerce.
3.14 A faxed copy of a trade register extract regarding JHI NV provided by the
Chamber of Commerce and dated 24 October 2001.
3.15 A faxed copy of a notarial copy of ▇.▇.▇.'s deed of incorporation and its
articles of association as most recently amended on 30 June 1993 according
to the trade register extract referred to in paragraph 3.16, both as filed
with the Chamber of Commerce.
3.16 A faxed copy of a trade register extract regarding ▇.▇.▇. provided by the
Chamber of Commerce and dated 30 October 2001.
In addition, I have obtained the following confirmations given by
telephone on the date of this opinion:
3.17 Confirmation from the Chamber of Commerce that the trade register extracts
referred to in this paragraph 3 are up to date in all material respects.
3.18 Confirmation from the office of the bankruptcy division
(faillissementsgriffie) of the Amsterdam district court that
International Finance, the Guarantor and JHI NV are not registered as
having been declared bankrupt or granted suspension of payments, and
confirmation from the office of the bankruptcy division
(faillissementsgriffie) of the Rotterdam district court that ▇.▇.▇. is not
registered as having been declared bankrupt or granted suspension of
payments.
3
DE BRAUW BLACKSTONE WESTBROEK
My examination has been limited to the text of the documents and I have
not investigated the meaning and effect of any document governed by a law
other than Dutch law under that other law.
3.19 In this opinion:
"AGREEMENTS" means the Second Amendment Agreement and the Guarantee.
"POWERS OF ATTORNEY" means the International Finance Power of Attorney and
the Guarantor Power of Attorney.
4 ASSUMPTIONS
For the purpose of this opinion, I have made the following assumptions:
4.1 All copy documents conform to the originals and all originals are genuine
and complete.
4.2 Each signature is the genuine signature of the individual concerned.
4.3 All written resolutions referred to in paragraph 3 remain in full force
and effect without modification. All confirmations referred to in
paragraph 3 are true.
4.4 The Agreements, the Note Purchase Agreement and the First Amendment
Agreement are within the capacity and powers of, and have been or will
have been validly authorised and entered into by, each party other than
International Finance and the Guarantor.
4.5 The Powers of Attorney remain in full force and effect without
modification and no rule of law which under the The Hague Convention on
the Law applicable to Agency 1978 applies or may be applied to the
existence and extent of the authority of any person authorised to sign the
Agreements on behalf of International Finance and the Guarantor under the
Powers of Attorney, adversely affects the existence and extent of that
authority as expressed in the Powers of Attorney.
4.6 The Agreements have been or will have been signed on behalf of
International Finance and the Guarantor by a person named as Authorised
Person in the Powers of Attorney.
4.7 When validly signed by all the parties, the Agreements are valid, binding
and enforceable on each party under the laws of the State of New York
("NEW YORK LAW") by which they are expressed to be governed.
4.8 Under New York law, the choice of New York law as the governing law of the
Guarantee applies to the submission to Jurisdiction of the New York courts
pursuant to clause 5 of the Guarantee (the "JURISDICTION CLAUSE").
4
DE BRAUW BLACKSTONE WESTBROEK
4.9 The Note Purchase Agreement and the First Amendment Agreement are valid,
binding and enforceable on each party under New York law by which they are
expressed to be governed.
4.10 The Agreements represent the entire agreement of the parties thereto with
regard to their respective subject matter.
4.11 International Finance meets the criteria set out in the Regulation of the
Minister of Finance of 4 February 1993 (Stcrt. 1993, 29) and will
therefore not qualify as a credit institution (kredietinstelling) within
the meaning of the 1992 Act on the Supervision of the Credit System (Wet
toezicht kredietwezen 1992).
5 OPINION
Based on the documents end confirmations referred to and the assumptions
in paragraphs 3 and 4 and subject to the qualifications in paragraph 6 and
to any matters not disclosed to me, I am of the following opinion:
5.1 International Finance has been incorporated and is existing as a private
company with limited liability (besloten vennootschap met beperkte
aansprakelijkheid) under Dutch law and the Guarantor has been
incorporated and is existing as a limited liability company (naamloze
vennootschap) under Dutch law.
5.2 International Finance has the corporate power to enter into and perform
the Agreements and the Guarantor has the corporate power to enter into and
perform the Second Amendment Agreement.
5.3 International Finance has taken all necessary corporate action to
authorise its entry into and performance of the Agreements and the
Guarantor has taken all necessary corporate action to authorise its entry
into and performance of the Second Amendment Agreement.
5.4 The Agreements have been validly signed by International Finance and the
Second Amendment Agreement has been validly signed by the Guarantor.
5.5 Under Dutch law there are no governmental or regulatory consents,
approvals or authorisations required by International Finance for its
entry into and performance of the Agreements or by the Guarantor for its
entry into and performance of the Second Amendment Agreement.
5.6 Under Dutch law there are no registration, filing or similar formalities
required to ensure the validity, binding effect and enforceability against
International Finance of the Agreements and against the Guarantor of the
Second Amendment Agreement.
5.7 The entry into and performance of the Agreements by International Finance
do not violate Dutch law or International Finance's articles of
association and the entry into and performance of the Second Amendment
Agreement by the Guarantor do not violate Dutch law or the Guarantor's
5
DE BRAUW BLACKSTONE WESTBROEK
articles of association.
5.8 Under Dutch law the choice of New York law as the governing law of the
Agreements is recognised and accordingly New York law governs the
validity, binding effect and enforceability against International Finance
of the Agreements and against the Guarantor of the Second Amendment
Agreement.
5.9 A judgment rendered by a court in New York will not be recognised and
enforced by the Dutch courts. However, if a person has obtained a final
and conclusive judgment for the payment of money rendered by a court in
New York (the "FOREIGN COURT") which is enforceable in the United States
of America (the "FOREIGN JUDGMENT") and files his claim with the competent
Dutch court, the Dutch court will generally give binding effect to the
foreign judgment insofar as it finds that the jurisdiction of the foreign
court has been based on grounds which are internationally acceptable and
that proper legal procedures have been observed and unless the foreign
judgment contravenes Dutch public policy.
5.10 Under Dutch law in proceedings in a court in New York, New York law
determines the validity, binding effect and enforceability against
International Finance and the Guarantor of the Jurisdiction Clause.
6 QUALIFICATIONS
This opinion is subject to the following qualifications:
6.1 This opinion is subject to any limitations arising from bankruptcy,
insolvency, liquidation, moratorium, reorganisation and other laws of
general application relating to or affecting the rights of creditors.
6.2 Under Dutch law, notwithstanding the recognition of New York law as the
governing law of this Agreements:
- effect may be given to the law of another jurisdiction with which
the situation has a close connection, insofar as, under the law of
that jurisdiction, that law is mandatory irrespective of the
governing law of the Agreements;
- Dutch law will be applied insofar as it is mandatory irrespective of
the governing law of the Agreements;
- the application of New York law may be refused if it is manifestly
incompatible with Dutch public policy;
- regard will be had to the law of the jurisdiction in which
performance takes place in relation to the manner of performance and
the steps to be taken in the event of defective performance.
6
DE BRAUW BLACKSTONE WESTBROEK
6.3 The enforcement in a Dutch court of the Agreements and of foreign
judgments is subject to Dutch rules of civil procedure.
6.4 Under Dutch law, a power of attorney can be made irrevocable only (i)
insofar as it has been granted for the purpose of performing a legal act
in the interest of the authorised person or a third party and (ii) subject
to any amendments made or limitations imposed by the courts on serious
grounds (gewichtige redenen).
6.5 In proceedings in a Dutch court for the enforcement of the Agreements, the
court may mitigate amounts due in respect of litigation and collection
costs.
6.6 To the extent that Dutch law applies, a legal act (rechtshandeling)
performed by a person (including (without limitation) a guarantee pursuant
to which it guarantees the performance of the obligations of a third party
and any other legal act having a similar effect) may be nullified by any
of its creditors, if (i) it performed the act without an obligation to do
so (onverplicht), (ii) the creditor concerned was prejudiced as a
consequence of the act and (iii) at the time the act was performed both it
and (unless the act was for no consideration (om niet)) the party with or
towards which it acted, knew or should have known that one or more of its
creditors (existing or future) would be prejudiced.
6.7 If a legal act (rechtshandeling) performed by a Dutch legal entity
(including (without limitation) a guarantee pursuant to which it
guarantees the performance of the obligations of a third party and any
other legal act having a similar effect) is not in the entity's corporate
interest, the act may (i) exceed the entity's corporate power, (ii)
violate its articles of association and (iii) be nullified by it if the
other party or parties to the act knew or should have known that the act
is not in the entity's corporate interest.
6.8 The trade register extracts referred to in paragraph 3 do not provide
conclusive evidence that the facts set out in it are correct. However,
under the 1996 Trade Register Act (Handelsregisterwet 1996), subject to
limited exceptions, a company cannot invoke the incorrectness or
incompleteness of its trade register registration against third parties
who were unaware of it.
6.9 The confirmations from the office of the bankruptcy division referred to
in paragraph 3 do not provide conclusive evidence that International
Finance, the Guarantor, JHI NV or ▇.▇.▇. have not been declared bankrupt
or granted suspension of payments.
6.10 I do not express any opinion as to any taxation matters.
7 RELIANCE
This opinion is solely for your benefit and solely for the purpose of the
Agreements. It is not to be transmitted to anyone else nor is it to be
relied upon by anyone else or for any other purpose or quoted or referred
to in any public document or filed with anyone without my written consent.
A
7
DE BRAUW BLACKSTONE WESTBROEK
copy may, however, be provided to your legal advisers solely for the
purpose of the Agreements and of giving their opinion and subject to the
same restrictions.
Yours faithfully,
/s/ Jan ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
--------------------------------------
JAN ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
for De Brauw Blackstone Westbroek N.V.
8
DE BRAUW BLACKSTONE WESTBROEK
ANNEX 1
The Prudential Insurance Company of America
Connecticut General Life Insurance Company (CIG & Co.)
Connecticut General Life Insurance Company on behalf of one or more separate
accounts (CIG & Co.)
Life Insurance Company of North America (CIG & Co.)
Metropolitan Life Insurance Company
Texas Life Insurance Company
Principal Life Insurance Company
USAA Life Insurance Company (▇▇▇▇▇▇▇ & Co.)
The ▇▇▇▇ ▇▇▇▇▇▇ Life Insurance Company (▇▇▇▇ & Co.)
The Guardian Life Insurance Company of America (▇▇▇▇ & Co.)
Massachusetts Mutual Life Insurance Company
CM Life Insurance Company
American Investors Life Insurance Company (▇▇▇▇▇▇▇ & Co.)
Ohio National Life Assurance Corporation
State Farm Life Insurance Company
Ameritas Life Insurance Corp.
9
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇▇
November 1, 2001
To each of the Noteholders
listed in Schedule A hereto
Re: ▇▇▇▇▇ ▇▇▇▇▇▇ U.S. Funding, Inc.
6.86% Guaranteed Senior Notes due 2004, Series A--$24,000,000
6.92% Guaranteed Senior Notes due 2005, Series B--$35,000,000
6.99% Guaranteed Senior Notes due 2006, Series C--$37,000,000
7.05% Guaranteed Senior Notes due 2007, Series D--$11,000,000
7.12% Guaranteed Senior Notes due 2008, Series E--$63,000,000
7.24% Guaranteed Senior Notes due 2010, Series F--$20,000,000
7.42% Guaranteed Senior Notes due 2013, Series G--$35,000,000
Ladies and Gentlemen:
We have acted as your special counsel in connection with the
execution and delivery of (i) the Second Amendment to Note Purchase Agreement
made and entered into as of October 22, 2001 (the "Amendment"), by and among by
▇▇▇▇▇ ▇▇▇▇▇▇ U.S. Funding, Inc., a Nevada corporation (the "Issuer"), ▇▇▇▇▇
▇▇▇▇▇▇ N.V., a company incorporated under the laws of the Netherlands (the
"Guarantor"), ▇▇▇▇▇ ▇▇▇▇▇▇ Aust. Investco Pty. Limited, a company organized
under laws of Australia (the "First Subsidiary Guarantor"), ▇▇▇▇▇ ▇▇▇▇▇▇ Aust.
Finance Pty. Limited, a company organized under laws of Australia (the "Second
Subsidiary Guarantor"), ▇▇▇▇▇ ▇▇▇▇▇▇ International Finance B.V., a company
incorporated under the laws of the Netherlands (the "Third Subsidiary
Guarantor"), and certain holders of the above-referenced Guaranteed Senior Notes
(the "Notes"), and (ii) the Guaranty, effective as of October 22, 2001 (the
"Guaranty"), executed by the Third Subsidiary Guarantor in favor of holders of
the Notes. The Issuer, the Guarantor, the First Subsidiary Guarantor, the Second
Subsidiary Guarantor and the Third Subsidiary Guarantor are referred to herein,
collectively, as the "▇▇▇▇▇ ▇▇▇▇▇▇ Entities". All terms used herein which are
defined in the Amendment are used as so defined.
We have examined such corporate records of the ▇▇▇▇▇ ▇▇▇▇▇▇
Entities, agreements and other instruments, certificates of public officials and
of officers and representatives of the ▇▇▇▇▇ ▇▇▇▇▇▇ Entities, and such other
documents, as we have deemed necessary in connection with the opinions
hereinafter expressed. In such examination, we have assumed the genuineness of
all signatures, the authenticity of documents submitted to us as originals and
the conformity with the authentic originals of all documents submitted to us as
copies. As to questions of fact material to such opinions we have, when relevant
facts were not independently established, relied upon the
New York
Washington, DC
Paris
London
November 1, 2001
Page 2
representations set forth in the Amendment and upon certifications by officers
or other representatives of the ▇▇▇▇▇ ▇▇▇▇▇▇ Entities.
Based upon the foregoing and having regard for legal considerations
that we deem relevant, we render our opinion to you pursuant to the Amendment as
follows:
1. Each of the Purchase Agreement (as amended by the Amendment) and
the Amendment constitutes a legal, valid and binding obligation of each
▇▇▇▇▇ ▇▇▇▇▇▇ Entity executing the same, enforceable against such ▇▇▇▇▇
▇▇▇▇▇▇ Entity in accordance with its terms.
2. The Guaranty constitutes a legal, valid and binding obligation of
the Third Subsidiary Guarantor, enforceable against the Third Subsidiary
Guarantor in accordance with its terms.
3. No consent, approval or authorization of, or declaration,
qualification, registration or filing with, any New York or United States
Federal governmental authority is required for the valid execution and
delivery of the Amendment or the Guaranty.
We have examined the opinions of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
special counsel to the ▇▇▇▇▇ ▇▇▇▇▇▇ Entities, De Brauw Blackstone Westbroek
N.V., Netherlands counsel to the Guarantor and the Third Subsidiary Guarantor,
and Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Australian counsel for the First Subsidiary
Guarantor and the Second Subsidiary Guarantor, each dated today and delivered to
you pursuant to Section 15.3 of the Amendment, which opinions are satisfactory
to us in form and substance with respect to the matters respectively specified
therein and we believe that both you and we are justified in relying thereon. We
call to your attention the fact that in approving the substance of said opinions
we have not made an investigation sufficient to enable us to express an
independent opinion with respect to the substantive matters covered by said
opinions (other than substantive matters governed by United States Federal laws
or the laws of the State of New York and specifically covered by this opinion);
however nothing has come to our attention that would cause us to disagree with
the legal conclusions expressed in any of said opinions as to any such matters.
The opinions expressed above as to the enforceability of any
agreement or instrument in accordance with its terms are subject to the
exception that such enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting the
enforcement of creditors' rights generally and (ii) general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
We express no opinion as to any provision in the Purchase Agreement
(as amended by the Amendment) or the Guaranty insofar as such provisions relate
to (a) the subject matter jurisdiction of a United States Federal District Court
sitting in New York to adjudicate any controversy relating to the Note Purchase
Agreements or the Notes, or (b) the waiver of inconvenient forum with respect to
proceedings in any such United States Federal District Court.
November 1, 2001
Page 3
We are members of the bar of the State of New York and do not herein
intend to express any opinion as to any matters governed by any laws other than
United States Federal laws and the laws of the State of New York. To the extent
that the opinions expressed above involve matters governed by Netherlands law,
Australian law or Nevada law, we have relied upon the aforementioned opinions of
De Brauw Blacksone Westbroek N.V., Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, respectively, and our conclusions as to such matters are subject
to the same assumptions, limitations and qualifications as are contained in said
opinions.
Very truly yours,
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
SCHEDULE A
The Prudential Insurance Company of America
Connecticut General Life Insurance Company
Life Insurance Company of North America
Metropolitan Life Insurance Company
Texas Life Insurance Company
Principal life Insurance Company
USAA Life Insurance Company
The ▇▇▇▇ ▇▇▇▇▇▇ Life Insurance Company
Massachusetts Mutual Life Insurance Company
CM Life Insurance Company
The Guardian Life Insurance Company of America
American Investors Life Insurance Company
Ohio National Life Assurance Corporation
State Farm Life Insurance Company
Ameritas Life Insurance Corp.
SECRETARY OF STATE
[SEAL STATE OF NEVADA]
CERTIFICATE OF EXISTENCE
(INCLUDING AMENDMENTS)
I, ▇▇▇▇ ▇▇▇▇▇▇, the duly elected and qualified Nevada Secretary of State, do
hereby certify that I am, by the laws of said State, the custodian of the
records relating to filings by corporations, limited-liability companies,
limited partnerships, limited-liability partnerships and business trusts
pursuant to Title 7 of the Nevada Revised Statutes which are either presently in
a status of good standing or were in good standing for a time period subsequent
of 1976 and am the proper officer to execute this certificate.
I further certify that the records of the Nevada Secretary of State, at the date
of this certificate, evidence, ▇▇▇▇▇ ▇▇▇▇▇▇ U.S. FUNDING, INC., A NEVADA
CORPORATION, as a corporation duly organized under the laws of Nevada and
existing under and by virtue of the laws of the State of Nevada since October
28,1999, and is in good standing in this state.
I FURTHER CERTIFY, that the above corporation has Articles of Incorporation and
no amendments on file in this office as of the date of this certificate.
[SEAL]
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed the Great Seal of State, at my office, in
Carson City, Nevada, on October 30, 2001.
/s/ ▇▇▇▇ ▇▇▇▇▇▇
Secretary of State
By: /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Certification Clerk
CT CORPORATION SYSTEM
November 2, 2001
VIA REGULAR MAIL & FACSIMILE
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
RE: Designated Agent for Service of Process in connection with the Guaranty
entered into as of October 22, 2001, by ▇▇▇▇▇ ▇▇▇▇▇▇ International Finance
B.V., a company incorporated under the laws of the Netherlands with its
corporate seat in Amsterdam, the Netherlands, in favor of the Noteholders.
Order Number: 4892273
Dear ▇▇. ▇▇▇▇▇▇:
CT Corporation System with an address of ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ hereby accepts its appointment as agent for service of process for ▇▇▇▇▇
▇▇▇▇▇▇ INTERNATIONAL FINANCE B.V. in connection with the above referenced
Agreement.
We understand any process received by us shall be forwarded to:
▇▇▇▇ ▇▇▇▇▇▇, Managing Director
▇▇▇▇▇ ▇▇▇▇▇▇ International Finance B.V.
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
We acknowledge receiving US$2,585.00 Dollars as payment for this appointment.
This amount consists as payment for the following: our annual charge for this
appointment, one time service charge, communications and Federal Express fees.
Unless we are notified otherwise, our service will expire on November 5, 2013.
Very truly yours,
CT Corporation System
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Customer Specialist
cc: ▇▇▇▇ ▇▇▇▇▇▇
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Tel. ▇▇▇ ▇▇▇ ▇▇▇▇
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A CCH LEGAL INFORMATION SERVICES COMPANY