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EXHIBIT 2.4
ASSIGNMENT AND ASSUMPTION AGREEMENT AND
FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT
This
Assignment and Assumption Agreement and First Amendment to
Note
Purchase Agreement (the
"Agreement") is made and entered into as of this 24th
day of January, 2000, by and
among JAMES HARDIE FINANCE B.V., a company
incorporated under the laws
of the Netherlands with its corporate seat in
Amsterdam, the Netherlands
("Assignor"), JAMES HARDIE U.S. FUNDING, INC., a
Nevada corporation
("Assignee"), JAMES HARDIE N.V., a company incorporated
under
the laws of the Netherlands
with its corporate seat in Amsterdam, the
Netherlands (the
"Guarantor"), JAMES HARDIE AUST. INVESTCO PTY. LIMITED,
a
company organized under the
laws of Australia (the "First Subsidiary Guarantor")
and the holders of notes
listed on the signature pages hereof under the heading
"Noteholders" (each a
"Noteholder" and, collectively, the "Noteholders") with
reference to the following
facts. Capitalized terms used herein which are not
otherwise defined shall have
the meaning ascribed to them in the Purchase
Agreement (defined
below).
A.
Assignor presently has obligations under Guaranteed Senior Notes
(the
"Notes") in the aggregate
principal amount of $225,000,000 issued to the
purchasers under those
certain Note Purchase Agreements with Assignor as Issuer
and the Guarantor, as
Guarantor, each dated as of November 5, 1998
(collectively, the "Purchase
Agreement").
B.
Assignor hereby desires to assign and Assignee hereby desires to
assume
Assignor's obligations under
the Notes and the Purchase Agreement.
C. This
Agreement is required under Section 24.8(A)(1)(ii) of the
Purchase
Agreement as a condition
precedent to the assignment and assumption of
Assignor's obligations under
the Purchase Agreement and under Section 19 of the
Purchase Agreement as a form
of written consent to the amendment of certain
provisions of the Purchase
Agreement.
NOW,
THEREFORE, for good and valuable consideration, the receipt of
which
is hereby acknowledged,
Assignor, Assignee, Guarantor, the First Subsidiary
Guarantor and the undersigned
Noteholders agree as follows:
1. WAIVER
OF NOTICE The 30-day notice requirement set forth in
Section
24.8(A)(1)(i) of the Purchase
Agreement is waived for purposes of the
assumption described in
Section 2 below. The effective date of this Agreement
shall be the date of
satisfaction of the conditions set forth in Section 17
below (the "Effective
Date").
2.
ASSUMPTION OF OBLIGATIONS BY ASSIGNEE. As of the Effective
Date,
pursuant to Section 24.8 of
the Purchase Agreement: (a) Assignor irrevocably and
unconditionally assigns and
Assignee irrevocably and unconditionally assumes and
agrees to pay and perform the
obligations of the Assignor for the due and
punctual payment of the
principal of and Make-Whole Amount (if any) and interest
on the Notes and the
performance of each and
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every other covenant and
obligation of the Issuer under the Purchase Agreement
and the Notes, whether such
obligations are incurred before, on or after the
Effective Date; (b) Assignor
shall no longer be deemed to be the "Issuer" (or an
"Obligor") under the Purchase
Agreement and shall be released from all of its
obligations thereunder; and
(c) Assignee shall be deemed to be the "Issuer" (and
an "Obligor") under the
Purchase Agreement and shall enjoy all of the rights and
benefits of the "Issuer" (and
an "Obligor") under the Purchase Agreement. At any
time on or after the
Effective Time, any Noteholder may tender to the
Assignee
its Note in exchange for a
substitute note payable by the Assignee, but the
foregoing assumption by the
Assignee of the Purchase Agreement and the Notes
shall be fully effective
regardless of whether any such tender and exchange
occurs.
3.
AMENDMENT TO SECTION 9.8. Section 9.8 of the Purchase Agreement
shall
be completely replaced by a
new Section 9.8, which shall read in full as
follows:
9.8. OWNERSHIP OF
ISSUER AND SUBSIDIARY GUARANTORS; ACTIVITIES.
Subject only to the provisions of Section 10.2(i), the
Guarantor
will at
all times maintain the Issuer, the First Subsidiary Guarantor
and
the Second
Subsidiary Guarantor as Wholly-Owned Subsidiaries of the
Guarantor,
and the capital stock of, and any other ownership interests
in,
the
Issuer, the First Subsidiary Guarantor and the Second
Subsidiary
Guarantor
will at all times remain free of any Lien.
4. CONSENT
UNDER SECTION 10.2. The Required Holders consent to the
transfer of A$850,000,000 of
preferred stock issued by a new Subsidiary of the
Guarantor incorporated in the
United States from a Subsidiary incorporated in
the United States that owns
all of the outstanding stock of the Issuer to an
Australian Subsidiary of the
Second Subsidiary Guarantor in consideration of an
A$850,000,000 note payable by
such Australian Subsidiary to such United States
Subsidiary.
5.
AMENDMENT TO SECTION 10.3. Section 10.3 of the Purchase Agreement
shall
be amended to delete existing
subsection (f) and to replace it with a new
subsection (f), which shall
read in full as follows:
(f) Liens on property or assets of the Guarantor or any of
its
Subsidiaries securing Debt owing to the Guarantor or to any of
its
Wholly-Owned Subsidiaries (other than the First Subsidiary
Guarantor or
the Second
Subsidiary Guarantor);
6.
AMENDMENT TO SECTION 10.8. Section 10.8 of the Purchase Agreement
shall
be completely replaced by a
new Section 10.8, which shall read in full as
follows:
10.8. RESTRICTIONS ON DIVIDENDS BY SUBSIDIARIES.
Except for provisions in this Agreement, the Other Agreements
and
the Bank
Credit Agreements as in effect on the date hereof, and except
for
provisions
comparable to (and not more restrictive or extensive in
any
material
respect than)
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those
provisions that may be included in other agreements
evidencing
Funded
Debt permitted under Sections 10.4 and 10.5 hereof and as may
be
required
by law, the Guarantor will not, and will not permit any
Subsidiary
to, enter into any agreement that would restrict any
Subsidiary's ability or right to pay dividends to, or make advances
to or
investments in, the Guarantor (or if any such Subsidiary is not
directly
owned by
Guarantor, the "parent" Subsidiary of such Subsidiary).
7. AMENDMENT TO SECTION 13.
Section 13 of the Purchase Agreement shall be
amended to delete existing
subsection (1) and to replace it with a new
subsection (1), which shall
read in full as follows:
(1) any Subsidiary Guarantee shall at any time, for any
reason,
cease to be in full force and
effect or shall be declared to be null and void in
whole or in any material part
by the final judgment (which is non-appealable or
has not been stayed pending
appeal or as to which all rights to appeal have
expired or been exhausted) of
any Governmental Authority having jurisdiction, or
the validity or
enforceability of any Subsidiary Guarantee shall be contested
by
or on behalf of the Guarantor
or any of its Subsidiaries, or the Guarantor or
any such Subsidiary shall
renounce a Subsidiary Guarantee or deny that the First
Subsidiary Guarantor or the
Second Subsidiary Guarantor, as the case may be, is
bound thereby or has any
further liability thereunder.
8.
AMENDMENT TO SECTION 15.1. The first sentence of Section 15.1
is
amended to read in full as
follows:
The Issuer shall keep at its executive office in Australia and
its
principal
executive office in the United States a register for the
registration and registration of transfers of Notes. As of the date
hereof
such
offices are located, respectively, as follows:
c/o James Hardie Australia and 26300 La Alameda
Finance Pty Ltd.
Suite 100
65 York Street
Mission Viejo, CA 92691
Sydney NSW 2000 Australia
Attention: Treasurer
9.
AMENDMENT TO SCHEDULE B. Schedule B of the Purchase Agreement
is
amended to add new
definitions of the terms set forth below, which shall read
in
full as follows (and shall
replace the definitions of any of the same terms in
the Purchase
Agreement):
"AUSTRALIAN BANK LOAN AGREEMENTS" has the meaning set forth in
the
definition
of "Bank Credit Agreements."
"BANK CREDIT AGREEMENTS" means (i) the four separate Revolving
Loan
Agreements, each dated on or about November 5, 1998 (together with
any
related
agreements and instruments, the "Australian Bank Loan
Agreements"), between the
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Second
Subsidiary Guarantor as successor to the First Subsidiary
Guarantor
as
borrower), the Issuer (as successor to James Hardie Finance B.V.),
the
First
Subsidiary Guarantor and the Guarantor (as guarantors)
and,
respectively, ANZ Banking Group, Wachovia Bank, Banque Nationale de
Paris
and
Westdeutsche Landesbank Girozentraie (the "Bank Lenders") under
which
the Second
Subsidiary Guarantor may borrow up to an aggregate of
A$200,000,000 (A$ referring to Australian dollars) as such
agreements may
be
amended, modified, refinanced or replaced with the same or
different
lenders,
and (ii) the six separate Standby Loan Agreements, each dated
on
or about
November 5, 1998, or, in the case of Westdeutsche
Landesbank
Girozentrale, on or about the date hereof (together with any
related
agreements
and instruments, the "Standby Facilities"), between the
Second
Subsidiary
Guarantor as successor to James Hardie Finance B.V. (as
borrower), the Guarantor, the
Issuer and the First Subsidiary Guarantor as
successors
to the First Subsidiary Guarantor (as guarantors) and,
respectively, each of the Bank Lenders, The First National Bank of
Chicago
and BBL
Australia Limited under which the Second Subsidiary Guarantor
may
borrow up
to an aggregate of $100,000,000 (or the equivalent in
Australian
currency)
as such agreements may be amended, modified, refinanced
or
replaced
with the same or different lenders.
"FIRST SUBSIDIARY GUARANTOR" means James Hardie Aust. Investco
Pty
Limited, a
company organized under the laws of Australia and its
permitted
successors
under the Subsidiary Guarantee.
"ISSUER" means James Hardie U.S. Funding Inc., a company
incorporated under the laws of the State of Nevada, and its
permitted
successors
hereunder.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a)
the
business,
operations, affairs, financial condition, assets or
properties
of the
Guarantor and its Subsidiaries taken as a whole, or (b) the
ability
of the
Issuer or the Guarantor to perform its obligations under
this
Agreement
and the Notes, or (c) the validity or enforceability of
this
Agreement
or the Notes, or (d) the ability of the First Subsidiary
Guarantor
or the Second Subsidiary Guarantor to perform its
obligations
under its
Subsidiary Guarantee, or (e) the validity or enforceability
of
either
Subsidiary Guarantee.
"NOTES" is defined in Section 1 and includes any substitute
notes
issued
under Section 2 of the Assignment and Assumption Agreement
and
First
Amendment to Note Purchase Agreement dated as of January 24,
2000.
"PRIORITY DEBT" means (a) all Debt of the Guarantor and
the
Subsidiaries secured by any Lien with respect to any property owned
by the
Guarantor
or any of its Subsidiaries and (b) all unsecured Debt of
Subsidiaries, except Debt owed to the Guarantor or a
Wholly-Owned
Subsidiary, Debt of the First Subsidiary Guarantor or the
Second
Subsidiary
Guarantor and Debt of the Issuer, the First Subsidiary
Guarantor
or the Second Subsidiary Guarantor under this Agreement,
the
Notes,
the
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Subsidiary
Guarantees, the Bank Credit Agreements (and Guarantys
thereof)
and the
Standby Facilities (and Guaranty's thereof).
"SECOND SUBSIDIARY GUARANTOR" means James Hardie Australia
Finance
Pty.
Limited, a company organized under the laws of Australia, and
its
permitted
successors under the Subsidiary Guarantee.
"STANDBY FACILITIES" has the meaning set forth in the definition
of
"Bank
Credit Agreements."
"SUBSIDIARY GUARANTEE" means each of the Subsidiary
Guarantees
executed
and delivered by the First Subsidiary Guarantor and the
Subsidiary
Guarantee executed and delivered by the Second
Subsidiary
Guarantor, each
substantially in the form of Exhibit 4.10 hereto.
10. STATUS
OF PURCHASE AGREEMENT. The provisions of the Purchase
Agreement
are in full force and effect
and shall remain unchanged, except as provided by
this Agreement.
11.
INCONSISTENCIES. In the event of any inconsistency between
the
provisions of this Agreement
and any provision in the Purchase Agreement, the
terms and provisions of this
Agreement shall govern.
12.
GOVERNING LAW. This Agreement shall be construed and enforced
in
accordance with, and the
rights of the parties shall be governed by, the law of
the State of New York
excluding choice-of-law principles of the law of such
State that would require the
application of the laws of a jurisdiction other
than such State.
13.
SEVERABILITY. If any paragraph, clause or provision of this
Agreement
is construed or interpreted
by a court of competent jurisdiction to be void,
invalid or unenforceable,
such decision shall not affect the remaining
paragraphs, clauses or
provisions of this Agreement.
14.
BINDING ON SUCCESSORS AND ASSIGNS. This Agreement applies to,
inures
to the benefit of, and binds
the Assignor, Assignee, the Noteholders and their
respective heirs, legatees,
devisees, administrators, executors, successors and
assigns.
15.
COUNTERPARTS. This Agreement may be executed in any number
of
counterparts, each of which
shall be an original but all of which together shall
constitute one instrument.
Each counterpart may consist of a number of copies
hereof, each signed by less
than all, but together signed by all, of the parties
hereto. Any party hereto may
execute and deliver a counterpart of this Agreement
by delivering by facsimile
transmission a signature page of this Agreement
signed by such party and such
facsimile signature shall be treated in all
respects as having the same
effect as an original signature.
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16.
REPRESENTATIONS AND WARRANTIES OF THE ASSIGNEE. The Assignee and
the
Guarantor jointly and
severally represent and warrant to the Noteholders that:
16.1. ORGANIZATION; POWER AND AUTHORITY. The Assignee is
a
corporation duly incorporated
and validly existing under the laws of the State
of Nevada, and is duly
qualified as a foreign corporation and is in good
standing in each jurisdiction
in which such qualification is required by law,
other than those
jurisdictions as to which the failure to be so qualified or
in
good standing could not,
individually or in the aggregate, reasonably be
expected to have a Material
Adverse Effect. The Assignee has all corporate power
and authority to own or hold
under lease the properties it purports to own or
hold under lease, to transact
the business it transacts and proposes to
transact, to execute and
deliver this Agreement and to perform the provisions
hereof. The Second Subsidiary
Guarantor is a corporation duly incorporated and
validly existing under the
laws of Australia and has all corporate power and
authority to own or hold
under lease the properties it purports to own or hold
under lease, to transact the
business it transacts and proposes to transact, to
execute and deliver its
Subsidiary Guarantee and to perform the provisions
thereof.
16.2. AUTHORIZATION, ETC. This Agreement has been duly authorized
by
all necessary corporate
action on the part of the Assignee, and this Agreement
constitutes a legal, valid
and binding obligation of the Assignee enforceable
against the Assignee in
accordance with its terms, except as such enforceability
may be limited by (i)
applicable bankruptcy, insolvency, reorganization,
moratorium or other similar
laws affecting the enforcement of creditors' rights
generally and (ii) general
principles of equity (regardless of whether such
enforceability is considered
in a proceeding in equity or at la
