exv4w2






Exhibit 4.2








James Hardie — Common 
Terms Deed Poll



Amended
and restated on 6 October 2009



James Hardie International Finance B.V. (“JHIF”)

James Hardie International Finance Limited (“JHIFL”)

James Hardie Building Products, Inc. (“JHBP”)

James Hardie Industries N.V. (“Guarantor”)



Mallesons Stephen Jaques

Level 61

Governor Phillip Tower

1 Farrer Place

Sydney NSW 2000

Australia

T +61 2 9296 2000

F +61 2 9296 3999

DX 113 Sydney

www.mallesons.com

Ref: GNH:MJC / 02-5120-3708







 









 








James Hardie — Common Terms Deed Poll

Contents




	 	 	 	 	 
	Details
	 	 	1	 
	 
	 	 	 	 
	General terms
	 	 	3	 
	 
	 	 	 	 
	1 Interpretation
	 	 	3	 
	 
	 	 	 	 
	1.1 Definitions
	 	 	3	 
	1.2 References to certain general terms
	 	 	21	 
	1.3 Numbers
	 	 	22	 
	1.4 Headings
	 	 	22	 
	1.5 Conflict
	 	 	22	 
	1.6 Shareholder ratification
	 	 	22	 
	1.7 Borrowers severally liable only
	 	 	23	 
	 
	 	 	 	 
	Part 1 Creditors and Facilities
	 	 	24	 
	 
	 	 	 	 
	2 Creditors and Facilities
	 	 	24	 
	 
	 	 	 	 
	2.1 Creditors and Facilities
	 	 	24	 
	2.2 Removal of benefit for particular Creditor
	 	 	24	 
	 
	 	 	 	 
	Part 2 Standard terms — all Facilities
	 	 	25	 
	 
	 	 	 	 
	3 Conditions precedent
	 	 	25	 
	 
	 	 	 	 
	3.1 Conditions to first drawdown
	 	 	25	 
	3.2 Conditions to subsequent drawdowns
	 	 	26	 
	 
	 	 	 	 
	4 Payments
	 	 	27	 
	 
	 	 	 	 
	4.1 Manner of payment
	 	 	27	 
	4.2 Currency of payment
	 	 	27	 
	 
	 	 	 	 
	5 Withholding tax
	 	 	28	 
	 
	 	 	 	 
	5.1 Payments by Obligor
	 	 	28	 
	5.2 Payments by a facility agent to Creditors
	 	 	28	 
	5.3 Tax credit

	 	 	29	 
	5.4 Early repayment or redemption
	 	 	29	 
	 
	 	 	 	 
	6 Increased costs
	 	 	29	 
	 
	 	 	 	 
	6.1 Compensation
	 	 	29	 
	6.2 Substantiating costs
	 	 	30	 
	6.3 Procedure for claim
	 	 	30	 
	6.4 Possible minimisation
	 	 	30	 
	 
	 	 	 	 
	7 Illegality
	 	 	31	 
	 
	 	 	 	 
	7.1 Creditor’s right to suspend or cancel
	 	 	31	 
	7.2 Extent and duration
	 	 	31	 
	7.3 Notice requiring early repayment or redemption
	 	 	31	 
	7.4 Creditor to seek alternative funding method
	 	 	31	 






	 	 	 	 	 
	© Mallesons Stephen Jaques

	 	James Hardie — Common Terms Deed Poll
	 	 
	9807451_3

	 	 	 	 






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	8 Representations and warranties
	 	 	32	 
	 
	 	 	 	 
	8.1 Representations and warranties
	 	 	32	 
	8.2 When representations and warranties made
	 	 	35	 
	8.3 Reliance on representations and warranties
	 	 	35	 
	 
	 	 	 	 
	9 Undertakings
	 	 	35	 
	 
	 	 	 	 
	9.1 Application
	 	 	35	 
	9.2 General undertakings
	 	 	36	 
	9.3 Negative Pledge
	 	 	36	 
	9.4 Financial undertakings
	 	 	37	 
	9.5 GAAP
	 	 	37	 
	9.6 Reporting undertakings
	 	 	38	 
	9.7 Officer’s certificate
	 	 	42	 
	 
	 	 	 	 
	10 Events of default
	 	 	42	 
	 
	 	 	 	 
	10.1 Events of Default
	 	 	42	 
	10.2 Consequences of default
	 	 	46	 
	 
	 	 	 	 
	11 Review events
	 	 	46	 
	 
	 	 	 	 
	12 Costs and indemnities
	 	 	47	 
	 
	 	 	 	 
	12.1 What the Borrower agrees to pay
	 	 	47	 
	12.2 Indemnity
	 	 	47	 
	12.3 Currency conversion on judgment debt
	 	 	48	 
	12.4 Indirect Taxes
	 	 	48	 
	 
	 	 	 	 
	13 Interest on overdue amounts
	 	 	49	 
	 
	 	 	 	 
	13.1 Obligation to pay
	 	 	49	 
	13.2 Compounding
	 	 	49	 
	13.3 Interest following judgment
	 	 	49	 
	 
	 	 	 	 
	Part 3 General
	 	 	50	 
	 
	 	 	 	 
	14 Change of Borrowers
	 	 	50	 
	 
	 	 	 	 
	14.1 New Borrowers
	 	 	50	 
	14.2 Release of Borrowers
	 	 	50	 
	 
	 	 	 	 
	15 Dealing with interests
	 	 	51	 
	 
	 	 	 	 
	15.1 Dealings by Obligors
	 	 	51	 
	15.2 Dealings by Creditors
	 	 	51	 
	15.3 Change in lending office
	 	 	51	 
	15.4 Securitisation permitted
	 	 	51	 
	15.5 No increased costs
	 	 	52	 
	15.6 Professional Market Party (PMP)
	 	 	52	 
	 
	 	 	 	 
	16 Obligors’ Agent
	 	 	52	 
	 
	 	 	 	 
	16.1 Obligors’ Agent as agent of the Obligors
	 	 	52	 
	16.2 Acts of Obligors’ Agent
	 	 	53	 
	 
	 	 	 	 
	17 Notices
	 	 	53	 
	 
	 	 	 	 
	17.1 Form
	 	 	53	 
	17.2 Delivery
	 	 	53	 






	 	 	 	 	 
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	17.3 When effective
	 	 	54	 
	17.4 Receipt — postal
	 	 	54	 
	17.5 Receipt — fax
	 	 	54	 
	17.6 Receipt — general
	 	 	54	 
	17.7 Notices to or from facility agent
	 	 	54	 
	17.8 Waiver of notice period
	 	 	54	 
	 
	 	 	 	 
	18 General
	 	 	54	 
	 
	 	 	 	 
	18.1 Consents
	 	 	54	 
	18.2 Certificates
	 	 	54	 
	18.3 Set-off
	 	 	55	 
	18.4 Discretion in exercising rights
	 	 	55	 
	18.5 Partial exercising of rights
	 	 	55	 
	18.6 No liability for loss
	 	 	55	 
	18.7 Conflict of interest
	 	 	55	 
	18.8 Remedies cumulative
	 	 	55	 
	18.9 Indemnities
	 	 	55	 
	18.10 Rights and obligations are unaffected
	 	 	56	 
	18.11 Inconsistent law
	 	 	56	 
	18.12 Supervening legislation
	 	 	56	 
	18.13 Variation
	 	 	56	 
	18.14 Waiver
	 	 	56	 
	18.15 Confidentiality
	 	 	56	 
	18.15A Creditor’s compliance with law
	 	 	57	 
	18.16 No responsibility for other’s obligations
	 	 	57	 
	18.17 Further steps
	 	 	57	 
	18.18 Counterparts
	 	 	57	 
	18.19 Governing law
	 	 	57	 
	18.20 Serving documents
	 	 	58	 
	18.21 Process Agent
	 	 	58	 
	18.22 Each Creditor’s consent to this amended and restated deed
	 	 	58	 
	 
	 	 	 	 
	Schedule 1 — Verification Certificate (clause 3.1
	 	 	59	 
	 
	 	 	 	 
	Schedule 2 — Facility Nomination Letter (clause 2.1
	 	 	61	 
	 
	 	 	 	 
	Schedule 3 — Form of New Borrower Deed Poll (clause 14.1
	 	 	63	 
	 
	 	 	 	 
	Schedule 4 — Form of Release Request (clause 14.2)
	 	 	64	 
	 
	 	 	 	 
	Schedule 5 — Form of Deed of Release (clause 14.2)
	 	 	65	 
	 
	 	 	 	 
	Signing page
	 	 	66	 






	 	 	 	 	 
	© Mallesons Stephen Jaques

	 	James Hardie — Common Terms Deed Poll
	 	 
	9807451_3

	 	 	 	 







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Details



Interpretation – Definitions are in clause 1.




	 	 	 	 	 
	Parties	 	JHIF, JHIFL, JHBP and the Guarantor, each as described below.
	 
	 	 	 	 
	JHIF

	 	Name
	 	James Hardie International Finance B.V.
	 
	 	 	 	 
	 

	 	Corporate seat
	 	Amsterdam
	 
	 	 	 	 
	 

	 	Registered Number
	 	34108775
	 
	 	 	 	 
	 

	 	Address
	 	8th Floor, Atrium, Unit 08
	 

	 	 	 	Strawinskylaan 3077
	 

	 	 	 	1077 ZX Amsterdam
	 

	 	 	 	The Netherlands
	 
	 	 	 	 
	 

	 	Fax
	 	+ 31 20 404 2544
	 
	 	 	 	 
	 

	 	Attention
	 	Treasurer
	 
	 	 	 	 
	JHIFL

	 	Name
	 	James Hardie International Finance Limited
	 
	 	 	 	 
	 

	 	Corporate seat
	 	Dublin
	 
	 	 	 	 
	 

	 	Registration Number
	 	471702
	 
	 	 	 	 
	 

	 	Address
	 	Arthur Cox Building
	 

	 	 	 	Earlsfort Terrace
	 

	 	 	 	Dublin 2
	 

	 	 	 	Ireland
	 
	 	 	 	 
	 

	 	Fax
	 	+353 1 618 0618
	 
	 	 	 	 
	 

	 	Attention
	 	Bradwell Limited, Company Secretary
	 
	 	 	 	 
	JHBP

	 	Name
	 	James Hardie Building Products, Inc.
	 
	 	 	 	 
	 

	 	Incorporated in
	 	Nevada
	 
	 	 	 	 
	 

	 	Address
	 	Suite 100
	 

	 	 	 	26300 La Alameda
	 

	 	 	 	Mission Viejo CA 92691
	 

	 	 	 	United States of America
	 
	 	 	 	 
	 

	 	Fax
	 	+ 1 949 348 4534






	 	 	 	 	 
	© Mallesons Stephen Jaques

	 	James Hardie — Common Terms Deed Poll
	 	 
	9807451_3

	 	 	 	 







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	 	Attention
	 	Company Secretary
	 
	 	 	 	 
	Guarantor

	 	Name
	 	James Hardie Industries N.V.
	 
	 	 	 	 
	 

	 	Corporate seat
	 	Amsterdam
	 
	 	 	 	 
	 

	 	Registered Number
	 	34106455
	 
	 	 	 	 
	 

	 	ABN
	 	49 097 829 895
	 
	 	 	 	 
	 

	 	Address
	 	8th Floor, Atrium, Unit 08
	 

	 	 	 	Strawinskylaan 3077
	 

	 	 	 	1077 ZX Amsterdam
	 

	 	 	 	The Netherlands
	 
	 	 	 	 
	 

	 	Fax
	 	+ 31 20 404 2544
	 
	 	 	 	 
	 

	 	Attention
	 	Managing Director and Company Secretary
	 
	 	 	 	 
	In favour of:	 	Each Creditor as defined in this amended and restated deed.
	 
	 	 	 	 
	Date of deed	 	See Signing page
	 
	 	 	 	 
	Recitals	 	A    This amended and restated deed amends and restates the “James Hardie — Common
Terms Deed Poll” dated 15 June 2005 as amended by the “CTDP Amendment Deed and New
Borrower Deed Poll” dated 12 January 2006 and as further amended and restated on 20
February 2008 (together, the “Previous Deeds”).

	 
	 	 	 	 
	 	 	B    The amendment and restatement of the Previous Deeds does not affect the nomination of
any Person as a Creditor nor the nomination of any document as a Facility Agreement or
Transaction Document prior to the execution of this amended and restated deed.

	 
	 	 	 	 
	 	 	C    The accession of JHIFL as a Borrower is evidenced by its execution of this deed.








	 	 	 	 	 
	© Mallesons Stephen Jaques

	 	James Hardie — Common Terms Deed Poll
	 	 
	9807451_3

	 	 	 	 






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James Hardie — Common Terms Deed Poll




General terms





	1	 	Interpretation
	 
	1.1	 	Definitions
	 
	 	 	These meanings apply unless the contrary intention appears:
	 
	 	 	A$, AUD or Australian Dollars means the lawful currency of Australia.
	 
	 	 	AFFA means the document entitled “Amended & Restated Final Funding Agreement in respect of
the provision of long term funding for compensation arrangements for certain victims of
Asbestos-related diseases in Australia” dated 21 November 2006 between the Guarantor,
James Hardie 117 Pty Limited (formerly known as LGTDD Pty Limited), the State of New South
Wales and the Asbestos Injuries Compensation Fund Limited in its capacity as trustee of
the Asbestos Injuries Compensation Fund.
	 
	 	 	Amended and Restated Trust Deed means the Asbestos Injuries Compensation Fund Amended and
Restated Trust Deed dated 14 December 2006 between the Guarantor and Asbestos Injuries
Compensation Fund Limited.
	 
	 	 	Asbestos Injuries Compensation Fund has the meaning given to it in the Amended and
Restated Trust Deed.
	 
	 	 	ASX means the stock exchange operated by ASX Limited.
	 
	 	 	ASX CNW Announcement means any release of information by the Guarantor through the ASX
concerning any event or circumstance affecting the financial position of the Group in a
manner which would affect the calculation of Consolidated Net Worth and which sets out
specific details of the balance sheet impact of such event or circumstance.
	 
	 	 	ASX CNW Announcement Date means the date on which an ASX CNW Announcement is made.
	 
	 	 	Authorisation means:






	 	(a)	 	any consent, registration, filing, agreement, notarisation, certificate,
licence, approval, permit, authority or exemption from, by or with a Government
Agency; and
	 
	 	(b)	 	any consent or authorisation regarded as given by a Government Agency due to
the expiration of the period specified by a statute within which the Government Agency
should have acted if it wished to proscribe or limit anything already lodged,
registered or notified under that statute.






	 	 	 	 	 
	© Mallesons Stephen Jaques

	 	James Hardie — Common Terms Deed Poll
	 	 
	9807451_3

	 	 	 	 







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	 	 	Authorised Officer means:






	 	(a)	 	in the case of a Creditor, a director or secretary of the Creditor, or an
officer of that party whose title contains the word “director”, “chief”, “head”,
“president”, “vice-president”, “executive” or “manager”, or a person performing the
functions of any of them, or any other person appointed by the Creditor as an
Authorised Officer for the purposes of a Transaction Document; and
	 
	 	(b)	 	in the case of an Obligor, a person appointed by the Obligor and notified to
the Creditor as an Authorised Officer for the purposes of a Transaction Document, and
whose specimen signature is provided with such notification to the Creditor.






	 	 	Beneficiary Nomination Letter means, in relation to a Creditor, the “Beneficiary
Nomination Letter” (as that term is defined in the Guarantee Trust Deed) for that Creditor
and one or more Facility Agreements for that Creditor.
	 
	 	 	Borrower means each of JHIF, JHIFL, JHBP and any new borrower under clause 14.1 (“New
Borrowers”) individually but not jointly. It excludes any person released pursuant to
clause 14.2 (“Release of Borrowers”).
	 
	 	 	Break Costs means the actual costs and losses which a Creditor certifies (with reasonable
details) that it has suffered or incurred by reason of:






	 	(a)	 	the liquidation or re-employment of deposits or other funds acquired or
contracted for by the Creditor to fund or maintain financial accommodation under a
Facility; or
	 
	 	(b)	 	the termination or reversing of any agreement or arrangement entered into by
the Creditor to hedge, fix or limit its effective cost of funding in relation to a
Facility,






	 	 	but excluding any loss of margin.
	 
	 	 	Business Day means a weekday (not being a public holiday) on which:






	 	(a)	 	in respect of a day on which the interest rate under a Facility Agreement is
required to be determined and for the purposes of giving drawdown notices and
selection notices under a Facility Agreement, banks are open for general banking
business in London;
	 
	 	(b)	 	for the purposes of making or receiving any payments in US Dollars, banks are
open for general banking business in London, New York and Sydney;
	 
	 	(c)	 	for the purpose of making or receiving any payments in another currency,
banks are open for general banking business in such place or places specified in a
relevant Facility Agreement; and
	 
	 	(d)	 	for all other purposes, banks are open for general banking business in
Sydney, Dublin and (until the Irish Registration Date) Amsterdam and any other place
specified in a relevant Facility Agreement.






	 	 	 	 	 
	© Mallesons Stephen Jaques

	 	James Hardie — Common Terms Deed Poll
	 	 
	9807451_3

	 	 	 	 






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	 	 	Capital Lease means, at any time, a lease with respect to which the lessee is required
concurrently to recognise the acquisition of an asset and the incurrence of a liability in
accordance with GAAP.
	 
	 	 	Capital Lease Obligation means, with respect to any Group Member (other than an Excluded
Entity) and a Capital Lease, the amount of the obligation of such Group Member as the
lessee under such Capital Lease which would, in accordance with GAAP, appear as a
liability on a balance sheet of such Group Member.
	 
	 	 	Change of Control means the Guarantor becoming a Subsidiary (as defined in the
Corporations Act) of another person.
	 
	 	 	Charitable Fund has the meaning given to it in the AFFA.
	 
	 	 	Compensation Provision means, at any time, the aggregate amount (without double counting)
of provisions made by the Group at that time in accordance with GAAP for asbestos related
liabilities (including, without limitation, obligations to fund or pay compensation
pursuant to the AFFA).
	 
	 	 	Consolidated Funded Capitalisation means, at any time, the sum of Consolidated Net Worth
and Consolidated Funded Debt at that time.
	 
	 	 	Consolidated Funded Debt means, as of any date of determination, the total of all Funded
Debt of the Group outstanding on that date, after eliminating:






	 	(a)	 	all Funded Debt (if any) of the Excluded Entities; and
	 
	 	(b)	 	all offsetting debits and credits between any Group Members (excluding the
Excluded Entities) and all other items required to be eliminated in the course of the
preparation of consolidated financial statements of the Group in accordance with GAAP.






	 	 	Consolidated Net Worth means, at any date of determination, the sum of:






	 	(a)	 	the par value (or value stated in the books of the Group) of the capital
stock (but excluding treasury stock and capital stock subscribed and unissued) of the
Group; and
	 
	 	(b)	 	the amount of the paid-in capital and retained earnings of the Group,






	 	 	plus the Compensation Provision on that date (and eliminating all other consequential
balance sheet impacts relating to the Compensation Provision), in each case as such
amounts would be shown on the consolidated balance sheet of the Group prepared:






	 	(c)	 	as if the Excluded Entities were not Subsidiaries of the Guarantor (to the
intent that the assets, liabilities and other balance sheet items of all Excluded
Entities shall be excluded in calculating Consolidated Net Worth); and
	 
	 	(d)	 	in accordance with GAAP,








	 	 	 	 	 
	© Mallesons Stephen Jaques

	 	James Hardie — Common Terms Deed Poll
	 	 
	9807451_3

	 	 	 	 







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	 	 	on the most recent Reporting Date or, where applicable, on the most recent ASX CNW
Announcement Date, to the extent such amounts have been adjusted to reflect the content of
any ASX CNW Announcement which post-dates such balance sheet.
	 
	 	 	Consolidated Permitted External Financial Indebtedness means, as of any date of
determination, the total of all Permitted External Financial Indebtedness of the Group
outstanding on that date, after eliminating all offsetting debits and credits between any
Group Members (excluding the Excluded Entities) and all other items required to be
eliminated in the course of the preparation of consolidated financial statements of the
Group in accordance with GAAP.
	 
	 	 	Controller has the meaning it has in the Corporations Act.
	 
	 	 	Corporations Act means the Corporation Act 2001 of Australia.
	 
	 	 	Costs means costs, fees, disbursements, charges and expenses, including, without
limitation where an Obligor is liable to pay or reimburse the Costs, those incurred in
connection with advisers and, unless an Event of Default is subsisting, only for an amount
and on a basis previously agreed to in writing by the Obligor.
	 
	 	 	Creditor means each party nominated as a “Creditor” under a Facility Nomination Letter
(and includes in the case of any syndicated facility, the facility agent) and, if there
are more than one, means each of them individually but not jointly. It does not include
any Group Member.
	 
	 	 	Deed of Release means a deed poll in the form of schedule 5 (“Form of Deed of Release”).
	 
	 	 	Default Rate means, in respect of a Transaction Document, the rate of interest specified
in that document as payable on any amount not paid under the document on the due date for
payment.
	 
	 	 	Details means the section of this amended and restated deed headed “Details”.
	 
	 	 	Directive means:






	 	(a)	 	a law; or
	 
	 	(b)	 	a treaty, official directive, regulation, request, guideline or policy
(whether or not having the force of law) with which responsible financiers generally
comply in carrying on their business.






	 	 	Due Currency means, in respect of any payment to be made under a Transaction Document, the
currency in which that payment is due.
	 
	 	 	EBIT means the operating profit of the Group, on a consolidated basis, before adjustments
for:






	 	(a)	 	significant, extraordinary, abnormal or exceptional items;






	 	 	 	 	 
	© Mallesons Stephen Jaques

	 	James Hardie — Common Terms Deed Poll
	 	 
	9807451_3

	 	 	 	 







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	 	(b)	 	items recognised in connection with the Special Commission of Inquiry into
Medical Research and Compensation Foundation and other related expenses; and
	 
	 	(c)	 	income tax,






	 	 	but after:






	 	(d)	 	adding back Net Interest Charges and all items referred to in paragraphs (a)
to (e) of the definition of “Net Interest Charges” that were deducted in deriving the
operating profit figure of the Group; and
	 
	 	(e)	 	eliminating all income, expense and other profit and loss statement impact of
the Excluded Entities,






	 	 	determined in each case by reference to the latest audited consolidated financial
statements of the Group delivered under clause 9.6(b). It excludes any earnings from any
Project Activities if these are derived from Project Vehicles or Project Property over
which there exist Security Interests (unless such earnings have actually been received in
cash by an Obligor).
	 
	 	 	Environmental Laws means any and all applicable statutes, laws, regulations, ordinances,
rules, judgments, orders, decrees, permits, concessions, grants, franchises, licences,
agreements or governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including those related
to hazardous substances or wastes, air emissions and discharges to waste or public
systems.
	 
	 	 	Event of Default means an Event of Default set out in clause 10.1 (“Events of Default”).
	 
	 	 	Exchange Act means the Securities Exchange Act 1934 of the United States of America.
	 
	 	 	Excluded Entity means the Fund and each of the following entities:






	 	(a)	 	Amaba Pty Limited (ACN 000 387 342);
	 
	 	(b)	 	Amaca Pty Limited (ACN 000 035 512);
	 
	 	(c)	 	ABN 60 Pty Limited (ACN 000 009 263); and
	 
	 	(d)	 	Marlew Mining Pty Limited (formerly known as Asbestos Mines Pty Limited) (ACN
000 049 650),






	 	 	and any other entity agreed in writing by the Guarantor and each Creditor (or, in the case
of a syndicated facility, the facility agent).
	 
	 	 	Excluded Tax means:






	 	 	 	 	 
	© Mallesons Stephen Jaques

	 	James Hardie — Common Terms Deed Poll
	 	 
	9807451_3

	 	 	 	 






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	 	(a)	 	a Tax imposed by any jurisdiction on or assessed against a Creditor as a
consequence of the Creditor being a resident of or organised in or doing business in
that jurisdiction, but not any Tax:






	 	(i)	 	that is calculated on or by reference to the gross amount
of a payment derived under a Transaction Document or another document
referred to in a Transaction Document (without the allowance of a
deduction);
	 
	 	(ii)	 	that is imposed as a result of the Creditor being
considered a resident or organised or doing business in that jurisdiction
solely as a result of it being a party to a Transaction Document or a
transaction contemplated by a Transaction Document; or






	 	(b)	 	in relation to any payment by an Obligor resident or incorporated in the
United States of America (“US Obligor”), any Tax payable by reason of the Creditor not
being in receipt of such payment through, or such payment not being attributable to, a
branch or lending office in the United States of America or by reason of the payment
not being considered effectively connected income of a trade or business conducted
within the United States of America by such branch or lending office (including,
without limitation, any withholding tax payable under the laws of the United States of
America in respect of interest due from a US Obligor under a Facility Agreement);
	 
	 	(c)	 	a Tax which would not be required to be deducted by an Obligor if, before the
Obligor makes a relevant payment, the relevant Creditor provided the Obligor with
written confirmation as to any of its name, address, registration number, country of
residence for tax purposes (including whether the relevant Creditor carries on a trade
or business in the Obligor’s country of residence and/or incorporation through a
branch or agency in connection with which the relevant Creditor receives the relevant
payment) or similar details or any relevant tax exemption or similar details; or
	 
	 	(d)	 	in relation to any payment by an Irish Obligor, any Tax imposed by Ireland by
reason of the Creditor to which the payment is made not being an Irish Qualifying
Creditor.






	 	 	Facility means any facility under a Facility Agreement.
	 
	 	 	Facility Agreement means each agreement to which a Creditor (together with any other
persons) and a Borrower are party, which is nominated as a “Facility Agreement” in a
Facility Nomination Letter.
	 
	 	 	Facility Nomination Letter means a letter substantially in the form set out in schedule 2
(“Facility Nomination Letter”) to this deed prior to amendment and restatement or in the
form set out in schedule 2 (“Facility Nomination Letter”) to this amended and restated
deed, in either case in favour of a person (not being a Group Member) providing financial
accommodation to a Borrower (or any agent or trustee on that person’s behalf).






	 	 	 	 	 
	© Mallesons Stephen Jaques

	 	James Hardie — Common Terms Deed Poll
	 	 
	9807451_3

	 	 	 	 






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	 	 	Financial Indebtedness means, with respect to any Group Member, without double counting:






	 	(a)	 	its liabilities for borrowed money (including all liabilities in respect of
letters of credit (excluding letters of credit and performance guarantees posted in
respect of payment of accounts payable arising in the ordinary course of business) or
instruments serving a similar function issued or accepted for its account by banks and
other financial institutions);
	 
	 	(b)	 	its liabilities for the deferred purchase price (for more than 90 days) of
property acquired by such Group Member (excluding accounts payable arising in the
ordinary course of business);
	 
	 	(c)	 	its Capital Lease Obligations;
	 
	 	(d)	 	all Preferred Stock of Subsidiaries (excluding the Excluded Entities) of such
Group Member which is not owned by such Group Member or a Wholly Owned Subsidiary of
such Group Member; and
	 
	 	(e)	 	any Guarantee of such Group Member with respect to liabilities of a type
described in any of paragraphs (a) to (d) of this definition.






	 	 	Financial Year means each year ending on 31 March.
	 
	 	 	Financier Nomination Letter means, in relation to a Creditor, the “Financier Nomination
Letter” (as that term is defined in the Intercreditor Deed) for that Creditor and one or
more Facility Agreements for that Creditor.
	 
	 	 	Free Cash Flow has the meaning given to that term in the AFFA.
	 
	 	 	Fund means Asbestos Injuries Compensation Fund Limited as trustee for the Asbestos
Injuries Compensation Fund .
	 
	 	 	Fund Guarantee has the meaning given to it in the Guarantee Trust Deed.
	 
	 	 	Funded Debt means, at any time, with respect to any Group Member (other than an Excluded
Entity), all drawn and outstanding Financial Indebtedness (other than Non-Recourse Debt)
of such Group Member owing to any person outside the Group (other than an Excluded Entity)
at that time.
	 
	 	 	GAAP means generally accepted accounting principles as in effect from time to time in the
United States of America.
	 
	 	 	Government Agency means any government or any governmental, semi-governmental,
administrative, fiscal or judicial body, department, commission, authority, tribunal,
agency or entity having jurisdiction over, or in relation to the affairs of, a Group
Member and, for the avoidance of doubt, includes, without limitation, the Australian
Taxation Office, the US Internal Revenue Service, the Dutch tax authorities and the Irish
Revenue Commissioners, in each case to the extent applicable.






	 	 	 	 	 
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	 	 	Group means the Guarantor and its Subsidiaries and Group Member means any one of them.
	 
	 	 	Guarantee means any guarantee, suretyship, letter of credit, or any other obligation
(whatever called and of whatever nature):






	 	(a)	 	to provide funds (whether by the advance or payment of money, the purchase of
or subscription for shares or other securities, the purchase of assets or services, or
otherwise) for the payment or discharge of;
	 
	 	(b)	 	to indemnify any person against the consequences of default in the payment
of; or
	 
	 	(c)	 	to be responsible for,






	 	 	any debt or monetary liability of another person or the assumption of any responsibility
or obligation in respect of the insolvency or the financial condition of any other person.
	 
	 	 	Guarantee and Subordination Documents means:






	 	(a)	 	the Guarantee Trust Deed;
	 
	 	(b)	 	the Intercreditor Deed;
	 
	 	(c)	 	each Beneficiary Nomination Letter; and
	 
	 	(d)	 	each Financier Nomination Letter.






	 	 	Guarantee Trust Deed means the deed entitled “Guarantee Trust Deed” dated 19 December 2006
between the Guarantor and AET Structured Finance Services Pty Limited.
	 
	 	 	Guarantor means the person so described in the Details.
	 
	 	 	Indirect Tax means any goods and services tax, consumption tax, value added tax or any tax
of a similar nature.
	 
	 	 	Intercreditor Deed means the deed so entitled dated 19 December 2006 between the State of
New South Wales, the Guarantor, Asbestos Injuries Compensation Fund Limited in its
capacity as trustee for the Charitable Fund and AET Structured Finance Services Pty
Limited as amended by the letter dated 19 December 2006 between the same parties.
	 
	 	 	Irish Obligor means an Obligor resident or incorporated in Ireland.
	 
	 	 	Irish Qualifying Creditor means in respect of an Irish Obligor, a Creditor which at the
time the payment is made, is beneficially entitled to the interest payable to that
Creditor in respect of an advance under a Facility and is:






	 	(a)	 	an entity which is, pursuant to Section 9 of the Central Bank Act, 1971 of
Ireland, licensed to carry on banking business in Ireland and whose Facility office
is located in Ireland and which is recognised by the Revenue Commissioners of Ireland
as carrying on a bona fide






	 	 	 	 	 
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	 	 	 	banking business in Ireland for the purposes of Section
246(3)(a) of the Taxes Consolidation Act 1997 of Ireland
(“TCA”) in circumstances where the payments are made
from Ireland and which is regarded by the Revenue Commissioners of
Ireland as having made the advance for the purposes of Section 246(3)(a) TCA;
	 
	 	(b)	 	an authorised credit institution under the terms of the European Union
Consolidation Directive (Directive 2000/12/EC) that has duly established a branch in
Ireland or has made all necessary notifications to its home state competent
authorities required thereunder in relation to its intention to carry on banking
business in Ireland and which is recognised by the Revenue Commissioners of Ireland
as carrying on a bona fide banking business in Ireland for the purposes of Section
246(3)(a) TCA and has its Facility office located in Ireland in circumstances where
the payments are made from Ireland and which is regarded by the Revenue Commissioners
of Ireland as having made the advance for the purposes of Section 246(3)(a) TCA;
	 
	 	(c)	 	a company (within the meaning of Section 246(1) TCA) which is resident in a
country with which Ireland has a double taxation treaty or resident in a member state
of the European Communities (other than Ireland) where residence is determined under
the tax laws of the relevant country or Member State (together a “Relevant
Territory”), provided that such company does not provide its commitment through or in
connection with a branch or agency in Ireland, and where the company has provided
written confirmation of the foregoing to the Irish Obligor before the Irish Obligor
makes a relevant payment;
	 
	 	(d)	 	a US company, where such company has provided written confirmation to the
Irish Obligor that it is incorporated in the US and subject to tax in the US on its
worldwide income provided that such company does not provide its commitment through
or in connection with a branch or agency in Ireland; or
	 
	 	(e)	 	a Creditor which is entitled under a double taxation agreement between the
jurisdiction in which such Creditor is resident for Tax purposes and Ireland, subject
to the completion of any necessary procedural formalities, to receive all payments
from the Irish Obligor without a tax deduction, where such Creditor has applied for
and the relevant Irish Obligor has obtained authorisation from the Revenue
Commissioners of Ireland to make payments without deduction of Irish tax, and where
such authorisation remains in force and effect.






	 	 	Irish Registration Date means the date on which the Guarantor is registered by the
Registrar of Companies of Ireland as having its registered office in Ireland.
	 
	 	 	JHBP Financial Reports means the non-public financial or equivalent reports prepared in
respect of JHBP (or separate reports prepared for each division of JHBP) for the purpose
of preparing consolidated financial







	 	 	 	 	 
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	 	 	statements of the Group, the form and content of which is at the discretion of the
Obligors.
	 
	 	 	JHIF Financial Report means the non-public financial or equivalent reports prepared in
respect of JHIF (or separate reports prepared for each division of
	 
	 	 	JHIF) for the purpose
of preparing consolidated financial statements of the Group, the form and content of which
is at the discretion of the Obligors.
	 
	 	 	JHIFL Financial Report means the non-public financial or equivalent reports prepared in
respect of JHIFL for the purpose of preparing consolidated financial statements of the
Group, the form and content of which is at the discretion of the Obligors.
	 
	 	 	JHT Undertaking means the deed poll dated on or about 25 September 2009 given by James
Hardie Technology Limited in favour of the Creditors.
	 
	 	 	Majority Creditor means:






	 	(a)	 	in relation to a syndicated or capital markets facility, the Creditors who
form a “majority” (howsoever described) as defined under that Facility or all such
Creditors, to the extent so required under that facility; and
	 
	 	(b)	 	in relation to a bilateral facility, the Creditor under that facility.






	 	 	Material Adverse Effect means a material adverse effect on:






	 	(a)	 	the ability of each Borrower to perform its obligations to pay Outstanding
Moneys when the same are due or within any applicable grace period;
	 
	 	(b)	 	the ability of the Guarantor to perform its obligations under the Guarantee
Trust Deed in favour of the Creditor when the same are due or within any applicable
grace period; or
	 
	 	(c)	 	the validity or enforceability of the Transaction Documents.






	 	 	Material Subsidiary means any Subsidiary of the Guarantor (other than an Excluded Entity)
whose total assets at the time of determination (consolidated in the case of a Subsidiary
which itself has one or more Subsidiaries) represent not less than 15% of Consolidated Net
Worth at that time.
	 
	 	 	Net Interest Charges for a period means all interest and amounts in the nature of interest
or of similar effect to interest, paid or payable by the Group (excluding the Excluded
Entities), on a consolidated basis, less interest income received by or arising to the
Group (excluding the Excluded Entities), on a consolidated basis, in the same period for
which such Net Interest Charges are being determined, in each case by reference to the
financial statements referred to in clause 9.6. It excludes:






	 	(a)	 	any swap break or reset costs incurred and paid as part of any termination of
any hedging or facility;






	 	 	 	 	 
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	 	(b)	 	any break costs, early redemption premium, make-whole payments, liquidated
damages or other penalties (howsoever described) incurred and paid in connection with
the prepayment of any facility;
	 
	 	(c)	 	capitalising interest under any agreement for the provision of Financial
Indebtedness to a Group Member which is in the nature of:






	 	(i)	 	a construction facility to fund capital expenditure to be
undertaken by a Group Member (but only while that capitalising interest is
not payable under the terms of that agreement); or
	 
	 	(ii)	 	a capital-indexed or zero coupon debt instrument which
contractually allows the capitalisation of interest;






	 	(d)	 	establishment, arrangement, underwriting and other fees payable once only on
the initial provision of financial accommodation; and
	 
	 	(e)	 	all interest and amounts in the nature of interest, and any other amounts of
the kind referred to in paragraphs (a) to (d) above, relating to:






	 	(i)	 	Subordinated Debt;
	 
	 	(ii)	 	hybrid capital;
	 
	 	(iii)	 	Non-Recourse Debt; or
	 
	 	(iv)	 	a loan under which financial accommodation is provided
from one Group Member (not being an Excluded Entity) to another Group Member
(not being an Excluded Entity).






	 	 	New Borrower means a person who executes a New Borrower Deed Poll in accordance with
clause 14.1 (“New Borrowers”).
	 
	 	 	New Borrower Deed Poll means each deed poll entered into by a New Borrower substantially
in the form set out in schedule 3 (“Form of New Borrower Deed Poll”).
	 
	 	 	Non-Australian Obligor means an Obligor which is not resident or incorporated in
Australia.
	 
	 	 	Non-Recourse Debt means any Project Debt if, and for so long as:






	 	(a)	 	the person to whom the Project Debt is owed does not have recourse (whether
by way of execution, set-off or otherwise) to a Group Member or its assets for the
payment or repayment of the Project Debt other than to assets which the Security
Interest (“Project Securities”) securing that Project Debt are permitted to extend to
under paragraph (h) of the definition of Permitted Security Interest (that person, and
any agent or trustee on that person’s behalf, being a “Non-Recourse Financier”);






	 	 	 	 	 
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	 	(b)	 	the Non-Recourse Financier may not seek to wind up or place into
administration, or pursue or make a claim in the winding up or administration of, any
other Group Member to recover or to be repaid that Project Debt;
	 
	 	(c)	 	the Non-Recourse Financier cannot obtain specific performance or a similar
remedy with respect to any obligation of another Group Member to pay or repay that
Project Debt; and
	 
	 	(d)	 	the Non-Recourse Financier and any receiver, receiver and manager, agent or
attorney appointed under the Project Securities, may not incur a liability on behalf
of, or for the account of, a Group Member which liability itself is not subject to the
above paragraphs as if references to Project Debt in those paragraphs included that
liability.






	 	 	For the avoidance of doubt, if Project Debt is incurred or owed by a Group Member which is
not a Project Vehicle, then the tests in paragraphs (b) and (c) above must also be
satisfied in respect of that Group Member in order for the Project Debt to qualify as
Non-Recourse Debt.
	 
	 	 	Obligor means:






	 	(a)	 	a Borrower; or
	 
	 	(b)	 	the Guarantor.






	 	 	Obligors’ Agent means JHIF or another Borrower:






	 	(a)	 	appointed by all the Borrowers and the Guarantor as Obligors’ Agent;
	 
	 	(b)	 	which has accepted such appointment; and
	 
	 	(c)	 	whose appointment has been notified to all Creditors.






	 	 	Outstanding Moneys means all debts and monetary liabilities of each Obligor to a Creditor
under or in relation to any Transaction Document and in any capacity, irrespective of
whether the debts or liabilities:






	 	(a)	 	are present or future;
	 
	 	(b)	 	are actual, prospective, contingent or otherwise;
	 
	 	(c)	 	are at any time ascertained or unascertained;
	 
	 	(d)	 	are owed or incurred by, or on account of, that Obligor alone or severally or
jointly with any other person;
	 
	 	(e)	 	are owed to or incurred for the account of that Creditor alone or severally
or jointly with any other person;
	 
	 	(f)	 	are owed or incurred as principal, interest, fees, charges, taxes, duties or
other imposts, damages (whether for breach of contract or tort or incurred on any
other ground), losses, costs or expenses, or on any other account; or






	 	 	 	 	 
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	 	(g)	 	comprise any combination of the above.






	 	 	Permitted External Financial Indebtedness means Financial Indebtedness of a Group Member
(other than an Obligor or an Excluded Entity) owing to any person outside the Group under
or in connection with:






	 	(a)	 	a working capital facility;
	 
	 	(b)	 	a transactional banking facility;
	 
	 	(c)	 	a Capital Lease;
	 
	 	(d)	 	Non-Recourse Debt;
	 
	 	(e)	 	a “soft loan” or other form of financial accommodation given to a Group
Member by a Government Agency in connection with capital works or expansion plans
undertaken by that Group Member or any other Group Member; or
	 
	 	(f)	 	any financial accommodation which, in the opinion of the Guarantor, it is
preferable for the relevant Group Member to raise from external sources (rather than
by an intra-Group borrowing) for reasons based on economic advantage, administrative
convenience and/or legal, structural, political and/or tax considerations.






	 	 	Permitted Security Interest means:






	 	(a)	 	a Security Interest created by operation of law or otherwise to secure taxes,
assessments or other governmental charges which are not more than 90 days overdue or
are being contested in good faith;
	 
	 	(b)	 	a Security Interest which a Group Member is required to create by any
applicable law or is required or considers it necessary or expedient to create in
order to obtain, maintain or renew any Authorisation;
	 
	 	(c)	 	a Security Interest created by operation of law or otherwise in favour of a
landlord, carrier, warehouseman, mechanic, materialman or other supplier (including
rights by way of reservation or retention of title to property) or other similar
Security Interest, in each case, incurred in the ordinary course of business for sums
which are not more than 90 days overdue or are being contested in good faith;
	 
	 	(d)	 	a Security Interest incurred, or deposits made, in the ordinary course of
business:






	 	(i)	 	in connection with workers’ compensation, unemployment
insurance and other types of social security, employment or retirement
benefits; or
	 
	 	(ii)	 	to secure (or to obtain letters of credit that secure)
the performance of tenders, statutory obligations, surety bonds, appeal
bonds, bids, leases (other than Capital Leases), performance bonds,
purchase, construction or sales contracts and other similar obligations,







	 	 	 	 	 
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	 	 	 	in each case not incurred or made:






	 	(A)	 	in connection with the borrowing of
money, the obtaining of advances or credit or payment of the
deferred purchase price of property; nor
	 
	 	(B)	 	to secure obligations due under the
AFFA or any Related Agreement (as defined in the AFFA);






	 	(e)	 	a Security Interest in respect of a judgment debt of a Group Member, provided
that the judgment is discharged or execution of it is stayed (permanently or pending
appeal) within 90 days of entry thereof or adequate reserves have been provided for
it;
	 
	 	(f)	 	leases or subleases granted to others, easements, rights-of-way, restrictions
and other similar charges or encumbrances, in each case incidental to, and not
interfering with, the ordinary conduct of the business of the Group;
	 
	 	(g)	 	a Security Interest on property or assets of a Group Member (not being an
Excluded Entity) securing Financial Indebtedness owing to another Group Member (not
being an Excluded Entity);
	 
	 	(h)	 	a Security Interest existing or created under or in respect of Non-Recourse
Debt facilities where the party holding any such Security Interest has security over
Project Property or Project Vehicles only but no right of recourse to an Obligor or
any Obligor’s other assets;
	 
	 	(i)	 	a Security Interest created on any asset or group of associated assets
acquired by a Group Member or developed by a Group Member after 15 June 2005:






	 	(i)	 	for the sole purpose of financing or refinancing that
acquisition or development; and
	 
	 	(ii)	 	securing principal moneys not exceeding one hundred per
cent (100%) of the cost of that acquisition or development;






	 	(j)	 	a Security Interest existing at the time of acquisition on any asset acquired
by a Group Member after 15 June 2005 and not created in contemplation of the
acquisition, provided that there is no increase in the amount of the principal moneys
secured by that Security Interest;
	 
	 	(k)	 	a Security Interest existing on property of a person immediately prior to its
being consolidated with or merged into a Group Member or its becoming a Group Member
(by becoming a Subsidiary of the Guarantor), provided that the Security Interest was
not created in contemplation of the consolidation, merger or acquisition and there is
no increase in the amount of the principal moneys secured by that Security Interest;






	 	 	 	 	 
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	 	(l)	 	any Security Interest existing at 15 June 2005 provided there is no increase
in the amount of the principal moneys secured by that Security Interest;
	 
	 	(m)	 	a Security Interest replacing, renewing, extending or refunding any Security
Interest permitted by paragraph (i), (j), (k), (l) or (m), provided that:






	 	(i)	 	the principal moneys secured by such Security Interest
immediately prior to such replacement, renewal, extension or refunding is
not increased or the maturity thereof reduced; and
	 
	 	(ii)	 	the Security Interest is not extended to any other
property;






	 	(n)	 	a Security Interest created with the prior written consent of each Majority
Creditor (or in the case of a syndicated facility, an agent or trustee acting on the
instructions of the relevant Majority Creditor);
	 
	 	(o)	 	a Security Interest created by a Group Member over its interest in a joint
venture to secure:






	 	(i)	 	its obligations under the joint venture to any other
party to the joint venture; or
	 
	 	(ii)	 	its obligations, or the obligations of the joint venture,
or the obligations of any entity formed for the purpose of the joint
venture, under any agreement (including an agreement relating to financial
accommodation) entered into for the purposes of the joint venture; or






	 	(p)	 	any Security Interest created pursuant to the general conditions of a bank
operating in the Netherlands based on the general conditions drawn up by the
Netherlands Bankers’ Association (Nederlandse Vereniging van Banken) and the Consumers
Union (Consumentenbond),






	 	 	provided the aggregate amount of Financial Indebtedness of the Group (excluding
intra-Group transactions and Financial Indebtedness of the Excluded Entities) secured by
all such Permitted Security Interests granted in favour of persons outside the Group may
not exceed 10% of the total assets of the Group (excluding the Excluded Entities) at any
time.
	 
	 	 	PMP means a professional market party as defined in the Act on the Financial Supervision
(Wet op het financieel toezicht) which includes (among others):






	 	(a)	 	legal entities which are authorised or regulated to operate in the financial
markets, including: credit institutions, investment firms, other authorised or
regulated financial institutions, insurance companies, collective investment schemes
and their management companies, pension funds and their management companies,






	 	 	 	 	 
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	 	 	 	commodity dealers, as well as entities not so authorised or regulated whose
corporate purpose is solely to invest in securities;
	 
	 	(b)	 	national or regional public bodies, central banks, international or
supranational financial organizations;
	 
	 	(c)	 	enterprises:






	 	(i)	 	having a net shareholders’ equity totalling
€10,000,000 or more preceding the making available of the repayable
funds; and






	 	(ii)	 	which have been active on the financial markets at least
twice a month, on average, during two consecutive years preceding the making
available of the repayable funds; and






	 	(d)	 	a person or company from which redeemable funds will be obtained through a
debt instrument or a private contract, if the nominal value of the debt instrument or
the claim under the private contract is at least €50,000 (or the equivalent in
another currency), or the debt instrument or the claim under the private contract is
acquired for a total consideration of at least €50,000 (or the equivalent in
another currency).






	 	 	This definition of “PMP” will only apply for so long as JHIF is an Obligor.
	 
	 	 	Potential Event of Default means an event or condition the occurrence or existence of
which would, with the lapse of time or the giving of notice or both, become an Event of
Default.
	 
	 	 	Preferred Stock means any class of capital stock of a corporation that is preferred over
any other class of capital stock of such corporation as to payment of dividends or the
payment of any amount upon liquidation or dissolution of the corporation.
	 
	 	 	Previous Deeds has the meaning given to it in the Recitals to this amended and restated
deed.
	 
	 	 	Project Activity means the acquisition, development, construction, extension, expansion or
improvement of any asset.
	 
	 	 	Project Debt means with respect to a project or development:






	 	(a)	 	Financial Indebtedness in relation to the acquisition and/or cost of Project
Activities;
	 
	 	(b)	 	Financial Indebtedness incurred before or at the time of carrying out Project
Activities solely for the purpose of financing or refinancing the acquisition and/or
cost of the Project Activities;
	 
	 	(c)	 	any Financial Indebtedness incurred solely to refinance any Financial
Indebtedness referred to above or incurred under any successive refinancing;







	 	 	 	 	 
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	 	(d)	 	any liabilities under hedging transactions entered into in connection with
any Financial Indebtedness referred to above or any Project Activity;
	 
	 	(e)	 	interest or amounts in the nature of interest, charges, fees, costs of any
nature (including break costs or costs arising from changes in law), duties, expenses,
currency indemnities, withholding taxes, indirect taxes and other similar indebtedness
(however described) which, in any case, is or are incurred or payable in connection
with any of the above; or
	 
	 	(f)	 	any guarantee or indemnity securing payment or repayment of any of the above
amounts (but not any other Financial Indebtedness),






	 	 	but does not include any Financial Indebtedness which is used to refinance any assets
owned by an Obligor as at 15 June 2005.
	 
	 	 	Project Property means a Group Member’s assets used or predominantly used in, or generated
by, any Project Activities for a project or development including:






	 	(a)	 	assets forming part of or connected with or derived from that project or
development; and
	 
	 	(b)	 	proceeds derived from other Project Property relating to that project or
development.






	 	 	Project Vehicle means an entity, which is established for the purposes of, and confines
its business operations solely to, owning or producing Project Property, carrying out
Project Activities and incurring Project Debt.
	 
	 	 	Related Entity has the meaning given in the Corporations Act.
	 
	 	 	Release Request means a letter in the form of schedule 4 (“Form of Release Request”).
	 
	 	 	Relevant Entity means an Obligor or a Material Subsidiary.
	 
	 	 	Reporting Date means each 31 March, 30 June, 30 September and 31 December in any year.
	 
	 	 	Security Interest means any mortgage, pledge, lien or charge or any security or
preferential interest or arrangement of any kind or any other right of, or arrangement
with, any creditor to have its claims satisfied in priority to other creditors with, or
from the proceeds of, any asset. This definition:






	 	(a)	 	includes any retention of title agreements arising other than in the ordinary
course of business; and
	 
	 	(b)	 	excludes any right of set-off, right to combine accounts, or other similar
right or arrangement arising in the ordinary course of business or by operation of
law.







	 	 	 	 	 
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	 	 	Subordinated Debt means any Financial Indebtedness of any Group Member (other than an
Excluded Entity) which is subordinated to the Facilities on terms which each Creditor (or
under a syndicated facility, an agent or trustee acting on the instructions of the
Majority Creditor) has confirmed are acceptable to it (such confirmation not to be
unreasonably withheld or delayed).
	 
	 	 	Subsidiary in relation to a corporation means a subsidiary of the corporation for the
purposes of the Corporations Act.
	 
	 	 	Tax means any present or future tax (including Indirect Taxes), levy, impost, duty,
charge, fee, deduction, compulsory loan or withholding or any income,






	 	 	stamp or transaction
duty, tax or charge, in the nature of tax whatsoever called (except if imposed on, or
calculated having regard to, the net income of a Creditor) and whether imposed, levied,
collected, withheld or assessed by any Government Agency and includes, but is not limited
to, any penalty, fine, charge, fee, interest or other amount payable in connection with
failure to pay or delay in paying the same.
	 
	 	 	Termination Date in respect to a Facility Agreement, means the termination date, maturity
date, final repayment date, final redemption date or other final payment date (howsoever
described) of a Facility as defined in the relevant Facility Agreement.
	 
	 	 	Transaction Document means each of:






	 	(a)	 	this amended and restated deed;
	 
	 	(b)	 	each Facility Agreement;
	 
	 	(c)	 	each Facility Nomination Letter;
	 
	 	(d)	 	each New Borrower Deed Poll;
	 
	 	(e)	 	each Deed of Release;
	 
	 	(f)	 	the Guarantee and Subordination Documents;
	 
	 	(g)	 	the JHT Undertaking;
	 
	 	(h)	 	any other document agreed to be a Transaction Document by the Guarantor and a
Creditor; and
	 
	 	(i)	 	any document entered into for the purpose of amending or novating any of the
above.






	 	 	US$, USD or US Dollars means the lawful currency of the United States of America.
	 
	 	 	Wholly Owned Subsidiary has the meaning given in section 9 of the Corporations Act.







	 	 	 	 	 
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	1.2	 	References to certain general terms 
	 
	 	 	Unless the contrary intention appears, a reference in a Transaction Document to:






	 	(a)	 	a group of persons is a reference to any two or more of them jointly and to
each of them individually;
	 
	 	(b)	 	an agreement, representation or warranty in favour of two or more persons is
for the benefit of them jointly and each of them individually;
	 
	 	(c)	 	an agreement, representation or warranty by two or more persons binds them
individually only;
	 
	 	(d)	 	anything (including an amount) is a reference to the whole and each part of
it (but nothing in this clause 1.2(d) implies that performance of part of an
obligation constitutes performance of the obligation);
	 
	 	(e)	 	a document (including this amended and restated deed) includes any variation,
supplement to, novation or replacement of it;
	 
	 	(f)	 	law includes (without limitation) common law, principles of equity, and laws
made by any legislative body of any jurisdiction (and references to any statute,
regulation or by-law include any modification or re-enactment of or any provision
substituted for, and all statutory and subordinate instruments issued under such
statute, regulation or by-law or such provision);
	 
	 	(g)	 	an accounting term is a reference to that term as it is used in GAAP;
	 
	 	(h)	 	the word “person” includes an individual, a firm, a body corporate, a
partnership, a joint venture, an unincorporated association and any Government Agency;
	 
	 	(i)	 	a particular person includes a reference to the person’s executors,
administrators, successors, substitutes (including persons taking by novation) and
assigns;
	 
	 	(j)	 	the words “including”, “for example” or “such as” when introducing an
example, do not limit the meaning of the words to which the example relates to that
example or examples of a similar kind;
	 
	 	(k)	 	other parts of speech and grammatical forms of a word or phrase defined in
this amended and restated deed have a corresponding meaning;
	 
	 	(l)	 	an agreement includes an undertaking, deed, agreement or legally enforceable
arrangement or understanding whether or not in writing;
	 
	 	(m)	 	a reference to a document includes any agreement in writing, or any
certificate, notice, instrument or other document of any kind;






	 	 	 	 	 
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	 	(n)	 	a reference to a body, other than a party to, or a beneficiary of, a
Transaction Document (including an institute, association or authority) whether
statutory or not:






	 	(i)	 	that ceases to exist; or
	 
	 	(ii)	 	whose powers or functions are transferred to another
body,






	 	 	 	is a reference to the body that replaces it or any body that substantially
succeeds to its powers or functions;
	 
	 	(o)	 	“continuing” or “subsisting”, in relation to an Event of Default or Potential
Event of Default, means an Event of Default or Potential Event of Default (as the case
may be) that has not been waived in writing or remedied.







	1.3	 	Numbers
	 
	 	 	In a Transaction Document, the singular includes the plural and vice versa.       
	 
	1.4	 	Headings
	 
	 	 	In a Transaction Document, headings (including those in brackets at the beginning
of paragraphs) are for convenience only and do not affect the interpretation of the
Transaction Document.
	 
	1.5	 	Conflict






	 	(a)	 	Subject to paragraph (b), even if any other Transaction Document is not
expressly made subject to this amended and restated deed and despite the time and date
of its execution, where a conflict arises between the provisions of this amended and
restated deed and any other Transaction Document, the provisions of this amended and
restated deed shall prevail unless the relevant provision in the other Transaction
Document includes words substantially to the effect of “Despite the terms of the
Common Terms Deed Poll”.
	 
	 	(b)	 	Where a conflict arises between the provisions of this amended and restated
deed on the one hand and the Guarantee and Subordination Documents on the other hand,
the provisions of the Guarantee and Subordination Documents shall prevail to the
extent of the inconsistency.






	1.6	 	Shareholder ratification
	 
	 	 	Each Obligor which is a shareholder of another company (a “Relevant Company”) which
is, or is to become, an Obligor, ratifies and approves in its capacity as a shareholder of
that Relevant Company, the execution and performance by each such Relevant Company of each
Transaction Document to which it is a party.







	 	 	 	 	 
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	1.7	 	Borrowers severally liable only
	 
	 	 	Notwithstanding any other provision of this or any other Transaction Document, no
Borrower is liable under the Transaction Documents for any obligation of another Borrower
(including, without limitation, any obligation to indemnify a Creditor).







	 	 	 	 	 
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Part 1 Creditors and Facilities





	2	 	Creditors and Facilities
	 
	2.1	 	Creditors and Facilities
	 
	 	 	This amended and restated deed is for the benefit of, and is enforceable by, each
Creditor from time to time even though it is not a party to, or is not in existence at the
time of execution and delivery of this amended and restated deed, in relation to the
Facility under which that Creditor is entitled and each Transaction Document under which
that Creditor has benefits or obligations.
	 
	 	 	The benefit and obligations of this amended and restated deed may be extended to any other
person (and such person shall become a Creditor) in relation to any other document (and
such document shall become a Facility Agreement), by the Obligors’ Agent signing and
delivering to that Creditor (or, in the case of a syndicated facility, the facility agent)
a Facility Nomination Letter and the Creditor countersigning such Facility Nomination
Letter.
	 
	 	 	Each Obligor irrevocably authorises the Obligors’ Agent to sign and deliver any Facility
Nomination Letter and acknowledges and confirms that the provisions of this amended and
restated deed which are for the benefit of the Creditors will extend to the Facility
Agreement so nominated in that Facility Nomination Letter.
	 
	2.2	 	Removal of benefit for particular Creditor
	 
	 	 	This amended and restated deed ceases to be for the benefit of, and enforceable by,
a Creditor if at any time:






	 	(a)	 	all Outstanding Moneys owing to that Creditor have been fully and finally
paid;
	 
	 	(b)	 	that Creditor is not committed to providing further financial accommodation
to a Borrower pursuant to any Facility; and
	 
	 	(c)	 	this is confirmed in writing by the Creditor. If requested by an Obligor, a
Creditor will promptly confirm in writing that this amended and restated deed has
ceased to be for the benefit of, and enforceable by, that Creditor.






	 	 	 	 	 
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Part 2 Standard terms — all Facilities





	3	 	Conditions precedent
	 
	3.1	 	Conditions to first drawdown
	 
	 	 	A Creditor’s obligation to make available the first drawdown under a Facility
Agreement entered into on the same date as, or after, the amendment and restatement of
this amended and restated deed is subject to the following conditions precedent:






	 	(a)	 	the Creditor (or, in the case of a syndicated facility, the facility agent)
has received each of the following items in form and substance satisfactory to the
Creditor or the facility agent (as the case may be):






	 	(i)	 	(verification certificate) a certificate in relation to
each Obligor given by a director of the relevant Obligor substantially in
the form of schedule 1 (“Verification Certificate”) with the attachments
referred to therein;
	 
	 	(ii)	 	(legal opinions) closing legal opinions in respect of
this amended and restated deed, the Facility Agreement and the Guarantee and
Subordination Documents from:






	 	(A)	 	for so long as JHIF is an Obligor,
Loyens & Loeff N.V., Netherlands legal advisers to JHIF;
	 
	 	(B)	 	prior to the Irish Registration Date,
Loyens & Loeff N.V., Netherlands legal advisers to the Guarantor;
	 
	 	(C)	 	after the Irish Registration Date,
Arthur Cox, Irish legal advisers to the Guarantor;
	 
	 	(D)	 	Arthur Cox, Irish legal advisers to
JHIFL;
	 
	 	(E)	 	McDonald Carano & Wilson, United States
of America legal advisers to JHBP;
	 
	 	(F)	 	Mallesons Stephen Jaques, Australian
legal advisers to the Obligors; and
	 
	 	(G)	 	if a new Borrower is party to a
Facility Agreement, legal advisers to the new Borrower of
recognised standing and acceptable to the Creditor;






	 	(iii)	 	(executed documents) to the extent not previously
provided to the Creditor under this amended and restated deed:






	 	(A)	 	an original counterpart
or certified copy of this amended and restated deed;






	 	 	 	 	 
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	 	(B)	 	original counterparts
of the Facility Agreement; and
	 
	 	(C)	 	a Facility Nomination
Letter, if required by the Facility Agreement;
	 
	 	(D)	 	certified copy of the
Guarantee Trust Deed;
	 
	 	(E)	 	a Beneficiary
Nomination Letter, if required by the Facility Agreement;
	 
	 	(F)	 	a certified copy of the
Intercreditor Deed; and
	 
	 	(G)	 	a Financier Nomination
Letter, if required by the Facility Agreement,






	 	 	 	executed by all relevant Obligors; and
	 
	 	(iv)	 	(fees) evidence of instructions issued by the Obligors’
Agent to pay all fees and expenses which are due under the Facility
Agreement on or before the first drawdown; and






	 	(b)	 	(know your customer) if, in relation to the relevant Facility, a Creditor
is required to comply with any know your customer checks and the information necessary
is not already available to it and to the extent not previously provided to the
Creditor under this amended and restated deed or under any other agreement, such
documentation and other evidence as is reasonably requested to enable the Creditor to
so comply, each in form and substance satisfactory to the Creditor (acting
reasonably);
	 
	 	(c)	 	(representations true) the representations and warranties by each Obligor in
clause 8.1 of this amended and restated deed are true as at the date of the first
drawdown notice and on the date of the first drawdown; and
	 
	 	(d)	 	(no default) no Event of Default or Potential Event of Default subsists at
the date of the first drawdown notice or on the date of the first drawdown or will
result from the provision of the requested financial accommodation.






	3.2	 	Conditions to subsequent drawdowns
	 
	 	 	The Creditor need not provide any financial accommodation subsequent to the first
drawdown under a Facility Agreement unless:






	 	(a)	 	(representations true) the representations and warranties by each Obligor in
clause 8.1 of this amended and restated deed (other than clause 8.1(d)(ii)) are true
as at the date of the drawdown notice and on the drawdown date, as though they had
been made at that date in respect of the facts and circumstances then subsisting; and
	 
	 	(b)	 	(no default) no Event of Default or Potential Event of Default subsists at
the date of the drawdown notice or on the drawdown date







	 	 	 	 	 
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	 	 	 	or will result from the provision of the requested financial
accommodation.






	4	 	Payments
	 
	4.1	 	Manner of payment
	 
	 	 	Each Obligor agrees to make payments (including by way of reimbursement) under each
Transaction Document:






	 	(a)	 	on the due date (or, if that is not a Business Day, on the next Business Day
unless that day falls in the following month or after the Termination Date for the
relevant Facility, in which case, on the previous Business Day);
	 
	 	(b)	 	at the time which is customary at the time for settlement of transactions in
the relevant currency in the place for payment (if any) specified in the relevant
Facility Agreement;
	 
	 	(c)	 	in the Due Currency in immediately available funds;
	 
	 	(d)	 	in full without set-off or counterclaim, and without any deduction in respect
of Taxes unless prohibited by law; and
	 
	 	(e)	 	to the applicable Creditor (or, in the case of a Creditor under a syndicated
facility, the facility agent on its behalf) by making payment to the account nominated
by the Creditor or by payment as the Creditor otherwise directs.






	 	 	If a Creditor directs an Obligor to pay a particular party or in a particular manner, the
Obligor is taken to have satisfied its obligation to the Creditor by paying in accordance
with the direction.
	 
	 	 	An Obligor satisfies a payment obligation only when the Creditor (or, in the case of a
Creditor under a syndicated facility, the facility agent on its behalf) or the person to
whom it has directed payment actually receives the amount.
	 
	4.2	 	Currency of payment
	 
	 	 	Each Obligor waives any right it has in any jurisdiction to pay an amount other
than in Due Currency. However, if a Creditor receives an amount in a currency other than
the Due Currency:






	 	(a)	 	it may convert the amount received into the Due Currency (even though it may
be necessary to convert through a third currency to do so) on the day and at such
rates (including spot rate, same day value rate or value tomorrow rate) as it
reasonably considers appropriate. It may deduct its usual Costs in connection with
the conversion; and
	 
	 	(b)	 	the Obligor satisfies its obligation to pay in the Due Currency only to the
extent of the amount of the Due Currency obtained from the conversion after deducting
the Costs of the conversion. Any surplus amount will be paid promptly by that
Creditor to the relevant Obligor.






	 	 	 	 	 
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	5	 	Withholding tax
	 
	5.1	 	Payments by Obligor
	 
	 	 	If a law requires an Obligor to deduct or withhold an amount in respect of Taxes
(other than Indirect Taxes) in respect of a payment under any Transaction Document such
that a Creditor (“Indemnified Party”) would not actually receive on the due date the full
amount provided for under the Transaction Document, then:






	 	(a)	 	the Obligor agrees to deduct the amount for such Taxes and any further
deduction applicable to any further payment due under paragraph (c) below;
	 
	 	(b)	 	the Obligor agrees to pay an amount equal to the amount deducted or withheld
to the relevant authority in accordance with applicable law; and
	 
	 	(c)	 	unless the Tax is an Excluded Tax, the amount payable is increased so that,
after making the deduction or withholding and further deductions or withholdings
applicable to additional amounts payable under this clause 5.1(c), the Indemnified
Party is entitled to receive (at the time the payment is due) the amount it would have
received if no deductions or withholdings had been required.






	5.2	 	Payments by a facility agent to Creditors
	 
	 	 	If a law requires a facility agent under a syndicated facility to deduct or
withhold an amount in respect of Taxes (other than Indirect Taxes) in respect of a payment
by the facility agent to a Creditor under a syndicated facility such that the Creditor
would not actually receive on the due date the full amount provided for under the
syndicated facility, then:






	 	(a)	 	the facility agent must deduct or withhold the amount for such Taxes and any
further deduction or withholding applicable to any further payment due under
paragraph (c) below;
	 
	 	(b)	 	the facility agent must pay an amount equal to the amount deducted or
withheld to the relevant authority in accordance with applicable law and promptly give
the original receipts to the relevant Borrower;
	 
	 	(c)	 	unless the Tax is an Excluded Tax, the amount payable is increased so that,
after making the deduction or withholding and further deductions or withholdings
applicable to additional amounts payable under this clause 5.2(c), the Creditor is
entitled to receive (at the time the payment is due) the amount it would have received
if no deductions or withholdings had been required; and
	 
	 	(d)	 	unless the Tax is an Excluded Tax, the relevant Borrower must pay to the
facility agent an amount equal to any deduction or withholding which the facility
agent is required to make under this clause 5.2.






	 	 	 	 	 
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	5.3	 	Tax credit
	 
	 	 	If and to the extent that any Creditor is able in its opinion to apply for or
otherwise take advantage of any offsetting tax credit, tax rebate or other similar tax
benefit out of or in conjunction with any deduction or withholding which gives rise to an
obligation on any Obligor to pay any additional amount pursuant to clause 5.1 or 5.2(d),
that Creditor shall:






	 	(a)	 	give notice thereof to the Obligors’ Agent and take steps to obtain that
credit, rebate or benefit; and
	 
	 	(b)	 	to the extent that in its opinion it can do so without prejudice to the
retention of the credit, rebate or benefit, and upon receipt thereof, reimburse to the
Obligor such amount of the credit, rebate or benefit as that Creditor shall, in its
opinion (acting reasonably), have determined to be attributable to the deduction or
withholding. In complying with this clause, no Creditor need disclose to any Obligor
information about their tax affairs or order them in a particular way.






	5.4	 	Early repayment or redemption
	 
	 	 	Without limiting the other provisions of this clause 5, if a Borrower is required
to pay any amount to a Creditor or facility agent under a syndicated facility under this
clause 5, that Borrower may elect to repay or redeem early all of that Creditor’s
outstandings under the applicable Facility which is affected by the event or events
referred to in clause 5.1 or 5.2.
	 
	6	 	Increased costs
	 
	6.1	 	Compensation
	 
	 	 	The relevant Borrower agrees to compensate a Creditor on 30 days written notice if
the Creditor determines that:






	 	(a)	 	a Directive, or change in Directive, in either case applying for the first
time after the date of the relevant Facility Agreement;
	 
	 	(b)	 	a change in a Directive’s interpretation or administration by an authority
after the date of the relevant Facility Agreement; or
	 
	 	(c)	 	compliance by the Creditor or any of its Related Entities with any such
Directive, changed Directive or changed interpretation or administration,






	 	 	directly or indirectly:






	 	(i)	 	increases the effective cost to that Creditor of making,
funding or maintaining the relevant Facility or its proportion of the
Facility; or
	 
	 	(ii)	 	reduces any amount paid or payable to, or received or
receivable by, that Creditor or the effective return to that Creditor in
connection with the relevant Facility.







	 	 	 	 	 
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	 	 	In this clause 6.1, a reference to a Directive does not include a Directive imposing or
changing the basis of a Tax on the overall net income of the Creditor.
	 
	 	 	Compensation need not be in the form of a lump sum and may be demanded as a series of
payments.
	 
	 	 	A notice under this clause may not claim compensation for an increase or reduction
suffered more than 180 days before the date of the notice, except to the extent that the
event or circumstance giving rise to the increased cost or reduction is that a Directive
is applied retrospectively and the notice was given by the Creditor no later than 120 days
after it became aware of that event or circumstance and was able to quantify the amount
for which it is entitled to be compensated under this clause 6.1.
	 
	 	 	Any demand under this clause 6.1 is to be made to the Obligors’ Agent by the Creditor
(except in the case of a Creditor under a syndicated facility, in which case demand must
be made by the facility agent).
	 
	6.2	 	Substantiating costs
	 
	 	 	If a Creditor (or a facility agent on its behalf) makes a demand under clause 6.1
(“Compensation”), it must provide the relevant Borrower with reasonably detailed
calculations showing how the amount demanded has been ascertained. However, nothing in
this clause 6.2 obliges the Creditor to provide details of its business or tax affairs
which it considers in good faith to be confidential.
	 
	6.3	 	Procedure for claim






	 	(a)	 	In the absence of manifest error, and subject to clause 6.2 (“Substantiating
costs”), a certificate by a Creditor is sufficient evidence of the amount of the
compensation payable by the relevant Borrower to the Creditor under clause 6.1
(“Compensation”).
	 
	 	(b)	 	In determining the amount of the compensation payable under clause 6.1
(“Compensation”), the Creditor may use averaging and attribution methods commonly used
by the Creditor or any other method it reasonably considers appropriate to determine
the amount.






	6.4	 	Possible minimisation






	 	(a)	 	The Creditor agrees:






	 	(i)	 	to use reasonable endeavours to mitigate the effects of
those events or circumstances giving rise to the increased cost or reduction
in any payment or return for which the Creditor (or a facility agent on its
behalf) claims compensation under clause 6.1 (“Compensation”); and
	 
	 	(ii)	 	at the request of the Obligors’ Agent, to consider the
transfer or assignment of its rights and obligations under this amended and
restated deed and the other relevant Transaction







	 	 	 	 	 
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	 	 	 	Documents to which it is a party to another bank or financial
institution at par.






	 	(b)	 	Subject to clause 6.4(a)(i), the relevant Borrower agrees to compensate the
Creditor whether or not the increase or the reduction could have been avoided.






	7	 	Illegality
	 
	7.1	 	Creditor’s right to suspend or cancel
	 
	 	 	This clause 7 applies if a Creditor determines in good faith that:






	 	(a)	 	a change in a Directive;
	 
	 	(b)	 	a change in the interpretation or administration of a Directive by an
authority; or
	 
	 	(c)	 	a Directive,






	 	 	makes it (or will make it) illegal in practice for the Creditor to fund, provide, or
continue to fund or provide, financial accommodation under any Transaction Document. In
these circumstances, the Creditor by giving a notice to the Obligors’ Agent, may suspend
or cancel some or all of the Creditor’s obligations under the relevant Transaction
Document as indicated in the notice.
	 
	7.2	 	Extent and duration
	 
	 	 	The suspension or cancellation:






	 	(a)	 	must apply only to the extent necessary to avoid the illegality; and
	 
	 	(b)	 	in the case of suspension, may continue only for so long as the illegality
continues.






	7.3	 	Notice requiring early repayment or redemption
	 
	 	 	If the illegality relates to an amount outstanding to a Creditor, the Creditor (or,
in the case of a syndicated facility, the facility agent), by giving a notice to the
Obligors’ Agent, may require early repayment or redemption of all or part of the affected
outstandings and interest accrued on that part. The relevant Borrower in respect of which
the Creditor has made a determination under clause 7.1 agrees to repay or redeem the
amount specified no later than the date the illegality arises.
	 
	7.4	 	Creditor to seek alternative funding method
	 
	 	 	The affected Creditor (at no cost to an Obligor) during the period of 90 days after
the notice pursuant to clause 7.1 agrees to use reasonable endeavours to make that part of
the facility affected by the illegality available by alternative means (including changing
its lending office to another then existing lending






	 	 	 	 	 
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	 	 	office or making the financial accommodation available through a Related Entity of the
Creditor).






	8	 	Representations and warranties
	 
	8.1	 	Representations and warranties
	 
	 	 	Each Obligor (but in the case of a Borrower only from the date that it becomes a
Borrower) represents and warrants (except in relation to matters disclosed to the
Creditors and accepted in writing by the Creditors) that:






	 	(a)	 	(status) it is a corporation duly incorporated and validly existing under the
laws of its place of incorporation;
	 
	 	(b)	 	(corporate authorisation, documents binding) each Transaction Document to
which it is a party has been duly authorized by all necessary corporate action on the
part of the Obligor and constitutes a legal, valid and binding obligation of the
Obligor enforceable against the Obligor in accordance with its terms, except as such
enforceability may be limited by:






	 	(i)	 	applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors’
rights generally; and
	 
	 	(ii)	 	general principles of law (regardless of whether such
enforceability is considered in a proceeding in equity or at law);






	 	(c)	 	(compliance with laws) the execution, delivery and performance of the
Transaction Documents to which it is a party will not:






	 	(i)	 	contravene its constitution;
	 
	 	(ii)	 	result in the creation of any Security Interest (other
than any Permitted Security Interest) in respect of any property of the
Obligor or any of its Subsidiaries (excluding the Excluded Entities);
	 
	 	(iii)	 	contravene in any material respect any law to which the
Obligor or any of its Subsidiaries (excluding the Excluded Entities) is
subject or by which the Obligor or any of its Subsidiaries (excluding the
Excluded Entities) or any of their respective properties may be bound;
	 
	 	(iv)	 	conflict with or result in a breach in any material
respect of any of the terms, conditions or provisions of any order,
judgment, decree, or ruling of any court, arbitrator or Government Agency
applicable to the Obligor or any of its Subsidiaries (excluding the Excluded
Entities); and






	 	 	 	 	 
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	 	(v)	 	result in the acceleration or cancellation of any
agreement or obligation in respect of Financial Indebtedness of any Group
Member (excluding the Excluded Entities);






	 	(d)	 	(disclosure)







	 	(i)	 	all information given to the Creditors by it or with its
authority was, when given, true and correct in all material respects; and
	 
	 	(ii)	 	the most recent Form 20-F filed by the Guarantor with the
United States Securities and Exchange Commission was prepared and filed in
accordance with the applicable requirements of US securities laws;






	 	(e)	 	(Group financial statements)






	 	(i)	 	the most recent financial statements of the Group
(including in each case the related schedules and notes) fairly present in
all material respects the consolidated financial position of the Group as at
the end of the financial period to which they relate and have been prepared
in accordance with GAAP consistently applied throughout the periods
involved, except as set forth in the notes thereto (subject, in the case of
an interim financial statements, to normal year-end adjustments); and
	 
	 	(ii)	 	since the date of delivery of those statements, there has
been no change in the financial condition, operations, business or prospects
of the Group (excluding the Excluded Entities), except changes that
individually or in the aggregate do not or are not likely to have a Material
Adverse Effect;






	 	(f)	 	(Borrower financial statements)






	 	(i)	 	for so long as JHIF is an Obligor:






	 	(A)	 	the most recent financial statements of
JHIF provided in accordance with clause 9.6(c)(i)(C) (including in
each case the related schedules and notes) fairly present in all
material respects the consolidated financial position of JHIF as at
the end of the financial period to which they relate and have been
prepared in accordance with generally accepted accounting
principles as in effect from time to time in the Netherlands
consistently applied throughout the periods involved, except as set
forth in the notes thereto (subject, in the case of an interim
financial statements, to normal year-end adjustments); and
	 
	 	(B)	 	since the date of delivery of those
statements, there has been no change in the financial condition,
operations, business or prospects of JHIF, except changes that






	 	 	 	 	 
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	 	 	 	individually or in the aggregate do not or are not likely to have
a Material Adverse Effect;






	 	(ii)	 	for so long as JHIFL is an Obligor:






	 	(A)	 	the most recent financial statements of
JHIFL provided in accordance with clause 9.6(c)(ii)(C) (including
in
	 
	 	 	 	each case the related schedules and notes) fairly present in all
material respects the consolidated financial position of JHIFL as
at the end of the financial period to which they relate and have
been prepared in accordance with generally accepted accounting
principles as in effect from time to time in the Republic of
Ireland consistently applied throughout the periods involved,
except as set forth in the notes thereto (subject, in the case of
an interim financial statements, to normal year-end adjustments);
and
	 
	 	(B)	 	since the date of delivery of those
statements, there has been no change in the financial condition,
operations, business or prospects of JHIFL, except changes that
individually or in the aggregate do not or are not likely to have a
Material Adverse Effect;






	 	(g)	 	(Authorisations) all Authorisations necessary in connection with the
execution, delivery or performance by the Obligor of the Transaction Documents to
which it is a party have been obtained and are in full force and effect;
	 
	 	(h)	 	(litigation) except as disclosed in the most recent financial statements of
the Group, in an announcement by the Guarantor through the ASX or under clause 9.6(f)
of this amended and restated deed, no litigation, arbitration, administrative
proceeding or other procedure for the resolution of disputes is currently taking place
or pending against any Group Member (excluding the Excluded Entities) or any Group
Member’s assets (excluding the Excluded Entities’ assets) which has or is likely to
have a Material Adverse Effect;
	 
	 	(i)	 	(Security Interests) no Security Interest exists over any Group Member’s
assets (excluding the Excluded Entities’ assets) which is not permitted by clause 9.3;
	 
	 	(j)	 	(environmental matters) each Group Member (excluding the Excluded Entities)
has complied with all applicable Environmental Laws and the terms and conditions of
any Authorisation issued pursuant to an Environmental Law, except where a failure to
comply does not or is not likely to have a Material Adverse Effect;
	 
	 	(k)	 	(no immunity) neither it nor any of its assets has any immunity from
jurisdiction, suit, execution, attachment or other legal process in any jurisdiction
in which its assets are located or it carries on business;







	 	 	 	 	 
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	 	(l)	 	(not a trustee) it does not enter into any Transaction Document as trustee;
	 
	 	(m)	 	(ranking) its obligations under the Transaction Documents rank at least pari
passu with all of its other unsecured and unsubordinated obligations, other than those
mandatorily preferred by law;
	 
	 	(n)	 	(default under law) no member of the Group (excluding the Excluded Entities)
is in breach of any law, Authorisation, agreement
or obligation binding upon it or its
assets which has or is likely to have a Material Adverse Effect; and
	 
	 	(o)	 	(holding company) in the case of the Guarantor only, at the date of this
amended and restated deed, the Guarantor has no material liabilities other than:






	 	(i)	 	creditors, provisions and indemnities incidental to its
activities as a holding company without a material operating business,
	 
	 	(ii)	 	liabilities under this amended and restated deed and the
Guarantee and Subordination Documents;
	 
	 	(iii)	 	liabilities to the Fund, the Charitable Fund and the
State of New South Wales under the AFFA (and Related Agreements, as defined
in the AFFA), including the Fund Guarantee;
	 
	 	(iv)	 	liabilities in relation to taxation; and
	 
	 	(v)	 	liabilities to shareholders in their capacity as such not
prohibited under the AFFA.






	8.2	 	When representations and warranties made
	 
	 	 	Each representation and warranty is made in favour of a Creditor on the date of
execution of its Facility Agreement and is not repeated unless specified in that Facility
Agreement or in clause 3.2(a).
	 
	8.3	 	Reliance on representations and warranties
	 
	 	 	Each Obligor acknowledges that the Creditors have entered into the Transaction
Documents in reliance on the representations and warranties in this clause.
	 
	9	 	Undertakings
	 
	9.1	 	Application
	 
	 	 	All undertakings set out in this clause 9 apply to a Facility Agreement unless the
Majority Creditor (or under a syndicated facility, an agent or trustee acting on the
instructions of the Majority Creditor) under that Facility Agreement consents in writing.






	 	 	 	 	 
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	9.2	 	General undertakings
	 
	 	 	Each Obligor undertakes to each Creditor as follows:






	 	(a)	 	(nature of business) it will not (and will not permit any of its Subsidiaries
(excluding the Excluded Entities) to) engage in any business if, as a result, the
general nature of the business, taken on a consolidated basis, which would then be
engaged in by the Group would be substantially changed from the general nature of the
business engaged in by the Group on the date of the relevant Facility Agreement;
	 
	 	(b)	 	(compliance with laws) it will comply (and will procure that its Subsidiaries
(excluding the Excluded Entities) comply) with all applicable laws (including, without
limitation, all Environmental Laws and the terms and conditions of any Authorisation
required under an Environmental Law) in all material respects where non-compliance has
or is likely to have a Material Adverse Effect;
	 
	 	(c)	 	(ranking) it will ensure that its obligations to the Creditor under the
Transaction Documents rank and will continue to rank at least pari passu with all of
its other unsecured and unsubordinated obligations, other than those mandatorily
preferred by law;
	 
	 	(d)	 	(Financial Indebtedness of Group Members) in the case of the Guarantor only,
and without limiting clauses 9.4(d) or 9.4(e), it will ensure that each Group Member
(excluding the Excluded Entities) that is not an Obligor does not incur any Financial
Indebtedness owing to any person outside the Group that is not Permitted External
Financial Indebtedness;
	 
	 	(e)	 	(holding company status) in the case of the Guarantor only, it will have no
material liabilities other than those described in clause 8.1(o);
	 
	 	(f)	 	(AFFA) in the case of the Guarantor only, it will not (without the prior
written consent of each relevant Creditor (or under a syndicated facility, an agent or
trustee acting on the instructions of the Majority Creditor), such consent not to be
unreasonably withheld or delayed) vary, or agree to vary, in any material adverse
respect the AFFA and
	 
	 	(g)	 	(JHT ownership) in the case of JHIFL only, it will not (without the prior
written consent of each relevant Creditor (or under a syndicated facility, an agent or
trustee acting on the instructions of the Majority Creditor), such consent not to be
unreasonably withheld or delayed) cease to own 100% of the issued capital of James
Hardie Technology Limited.






	9.3	 	Negative Pledge
	 
	 	 	Each Obligor undertakes to each Creditor that it will not, and will not permit any
of its Subsidiaries (excluding the Excluded Entities) to, create or allow to exist a
Security Interest over any of its assets, other than a Permitted Security Interest.






	 	 	 	 	 
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	9.4	 	Financial undertakings






	 	(a)	 	(Consolidated Net Worth) The Guarantor must ensure that Consolidated Net Worth
is not less than US$320 million on each Reporting Date and, where applicable, on each
ASX CNW Announcement Date.






	 	(b)	 	(EBIT) The Guarantor will ensure that EBIT will not be less than 2.5 times
Net Interest Charges for the 12 month period ending on each Reporting Date.
	 
	 	(c)	 	(compensation funding) The Guarantor will ensure that no more than 35% of its
Free Cash Flow in any given Financial Year is contributed to the Fund on the payment
dates under the AFFA in the next following Financial Year.
	 
	 	(d)	 	(Funded Debt) The Guarantor will ensure that the ratio of Consolidated Funded
Debt to Consolidated Funded Capitalisation does not exceed 65% at any time.
	 
	 	(e)	 	(Permitted External Financial Indebtedness) The Guarantor will ensure that
the ratio of Consolidated Permitted External Financial Indebtedness to Consolidated
Funded Capitalisation does not exceed 15% at any time.






	9.5	 	GAAP
	 
	 	 	The financial undertakings in clause 9.4 have been drafted such that compliance
with them is based on GAAP . If:






	 	(a)	 	a Borrower’s or Guarantor’s accountants or auditors advise at any time that
any change to GAAP occurring after 15 June 2005 materially and adversely alters the
effect of any such provision (or any related definition) and the Obligors’ Agent so
notifies the Creditor; or
	 
	 	(b)	 	the Creditor gives written notice to the Obligors’ Agent referring
specifically to this clause 9.5 and giving details of a change to GAAP occurring after
15 June 2005 which in the Creditor’s opinion (acting reasonably) materially and
adversely alters the effect of any such provision (or any related definition),






	 	 	then:






	 	(c)	 	the Creditor and the Guarantor must negotiate in good faith to amend such
provision so that they have an effect comparable to that at the date of this amended
and restated deed; and
	 
	 	(d)	 	until such time as the amendments referred to in clause 9.5(c) are agreed,
compliance with the relevant provision (and related definitions) will be determined by
reference to GAAP.






	 	 	 	 	 
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	9.6	 	Reporting undertakings
	 
	 	 	The Guarantor shall deliver to each Creditor (or, in the case of a syndicated
facility, the facility agent) the following:






	 	(a)	 	(quarterly Group statements) within 60 days after the end of each quarterly
fiscal period in each fiscal year of the Guarantor (other than the last quarterly
fiscal period of each such fiscal year) a copy of:







	 	(i)	 	a consolidated balance sheet of the Group as at the end
of such quarter; and
	 
	 	(ii)	 	consolidated statements of income, changes in
shareholders’ equity and cash flows of the Group, for such quarter and (in
the case of the second and third quarters) for the portion of the fiscal
year ending with such quarter,






	 	 	 	setting forth in each case in comparative form the figures for the corresponding
periods in the previous fiscal year, all in reasonable detail, prepared in
accordance with GAAP applicable to quarterly financial statements generally, and
certified by the chief financial officer, treasurer or principal accounting
officer of the Group as fairly presenting, in all material respects, the
financial position of the companies being reported on and their results of
operations and cash flows, subject to changes resulting from year-end
adjustments, provided that delivery within the time period specified above of
copies of the Guarantor’s Quarterly Report on Form 10-Q prepared in compliance
with the requirements applicable thereto and filed with the United States
Securities and Exchange Commission shall be deemed to satisfy the requirements of
this clause 9.6(a);
	 
	 	(b)	 	(annual Group statements) within 105 days after the end of the fiscal year of
the Guarantor a copy of:






	 	(i)	 	a consolidated balance sheet of the Group, as at the end
of such year; and
	 
	 	(ii)	 	consolidated statements of income, changes in
shareholders’ equity and cash flows of the Group, for such year,






	 	 	 	setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail, prepared in accordance with GAAP, and
accompanied by an opinion thereon of independent certified public accountants of
recognised national standing, which opinion shall state that such financial
statements present fairly, in all material respects, the financial position of
the companies being reported upon and their results of operations and cash flows
and have been prepared in conformity with GAAP, and that the examination of such
accountants in connection with such financial statements has been made in
accordance with generally accepted auditing standards, and that such audit
provides a reasonable basis for such opinion in the circumstances, provided that
the delivery within the time period specified above of the Guarantor’s Annual
Report on Form 10-K for such fiscal year (together with the Guarantor’s annual
report to






	 	 	 	 	 
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	 	 	 	shareholders, if any, prepared pursuant to Rule 14a-3 under the Exchange Act)
prepared in accordance with the requirements applicable thereto and filed with
the United States Securities and Exchange Commission shall be deemed to satisfy
the requirements of this clause 9.6(b);
	 
	 	(c)	 	(Borrower statements and reports)






	 	(i)	 	for so long as JHIF is an Obligor:








	 	(A)	 	at the same time at which each
financial statement or report is delivered pursuant to clause
9.6(a) (“Consolidated Quarterly Statement”) and for as long as the
JHIF Financial Reports are prepared as a matter of general internal
accounting practice of the Obligors, a copy of the JHIF Financial
Reports for the year to date as at the end of the quarterly fiscal
period to which the Consolidated Quarterly Statement relates;
	 
	 	(B)	 	at the same time at which each
financial statement or report is delivered pursuant to clause
9.6(b) (“Consolidated Annual Statement”) and for as long as the
JHIF Financial Reports are prepared as a matter of general internal
accounting practice of the Obligors, a copy of the JHIF Financial
Reports for the fiscal year to which the Consolidated Annual
Statement relates;
	 
	 	(C)	 	within 180 days after the end of the
fiscal year of JHIF a copy of:






	 	(1)	 	the balance sheet of
JHIF, as at the end of such year; and
	 
	 	(2)	 	a statement of income,
changes in shareholders’ equity and cash flows of JHIF, for
such year,






	 	 	 	setting forth in each case in comparative form the figures for
the previous fiscal year, all in reasonable detail, prepared in
accordance with generally accepted accounting principles as in
effect from time to time in the Netherlands, and accompanied by
an opinion thereon of independent certified public accountants of
recognised national standing in the Netherlands, which opinion
shall state that such financial statements present fairly, in all
material respects, the financial position of JHIF and its results
of operations and cash flows and have been prepared in conformity
with generally accepted accounting principles as in effect from
time to time in the Netherlands, and that the examination of such
accountants in connection with such financial statements has been
made in accordance with generally accepted auditing standards in
the






	 	 	 	 	 
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	 	 	 	Netherlands, and that such audit provides a reasonable basis for
such opinion in the circumstances;






	 	(ii)	 	for so long as JHIFL is an Obligor:






	 	(A)	 	at the same time at which each
financial statement or report is delivered pursuant to clause
9.6(a) (“Consolidated Quarterly Statement”) and for as long as the
JHIFL Financial Reports are prepared as a matter of general
internal accounting practice of the Obligors, a copy of the JHIFL
Financial Reports for the
year to date as at the end of the
quarterly fiscal period to which the Consolidated Quarterly
Statement relates;
	 
	 	(B)	 	at the same time at which each
financial statement or report is delivered pursuant to clause
9.6(b) (“Consolidated Annual Statement”) and for as long as the
JHIFL Financial Reports are prepared as a matter of general
internal accounting practice of the Obligors, a copy of the JHIFL
Financial Reports for the fiscal year to which the Consolidated
Annual Statement relates;
	 
	 	(C)	 	within 180 days after the end of the
fiscal year of JHIFL a copy of:






	 	(1)	 	the balance sheet of
JHIFL, as at the end of such year; and
	 
	 	(2)	 	a statement of income,
changes in shareholders’ equity and cash flows of JHIFL, for
such year,






	 	 	 	setting forth in each case in comparative form the figures for
the previous fiscal year, all in reasonable detail, prepared in
accordance with generally accepted accounting principles as in
effect from time to time in the Republic of Ireland, and
accompanied by an opinion thereon of independent certified public
accountants of recognised national standing in the Republic of
Ireland, which opinion shall state that such financial statements
present fairly, in all material respects, the financial position
of JHIFL and its results of operations and cash flows and have
been prepared in conformity with generally accepted accounting
principles as in effect from time to time in the Republic of
Ireland, and that the examination of such accountants in
connection with such financial statements has been made in
accordance with generally accepted auditing standards in the
Republic of Ireland, and that such audit provides a reasonable
basis for such opinion in the circumstances;






	 	 	 	 	 
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	 	(iii)	 	for so long as JHBP is an Obligor:






	 	(A)	 	at the same time at which each
Consolidated Quarterly Statement is delivered pursuant to clause
9.6(a) and for as long as the JHBP Financial Reports are prepared
as a matter of general internal accounting practice of the
Obligors, a copy of the JHBP Financial Reports for the year to date
as at the end of the quarterly fiscal period to which the
Consolidated Quarterly Statement relates; and
	 
	 	(B)	 	at the same time at which each
Consolidated Annual Statement is delivered pursuant to clause
9.6(b) and for as long as the JHBP Financial Reports are prepared
as a matter of general internal accounting practice of the
Obligors, a copy of the JHBP Financial Reports for the fiscal year
to which the Consolidated Annual Statement relates;






	 	(d)	 	(SEC and other reports) promptly upon their becoming available, one copy of:






	 	(i)	 	to the extent not already provided under clauses 9.6(a),
9.6(b) or 9.6(c), each financial statement, report, notice or proxy
statement sent by a Group Member (other than an Excluded Entity) to public
securities holders generally; and
	 
	 	(ii)	 	each regular or periodic report, each registration
statement (without exhibits, except as expressly requested by the Creditor
or facility agent as the case may be), and each prospectus and all
amendments thereto filed by a Group Member (other than an Excluded Entity)
with the United States Securities and Exchange Commission and all
announcements made by the Guarantor through ASX and press releases and other
statements made available generally by any Group Member (other than an
Excluded Entity) to the public concerning developments that are material;






	 	(e)	 	(Notice of Event of Default or Potential Event of Default) promptly upon
becoming aware of it, written notice to each Creditor (or, in the case of a syndicated
facility, the facility agent) of:






	 	(i)	 	the existence of any Event of Default or Potential Event
of Default; and
	 
	 	(ii)	 	the occurrence of any event which has or is likely to
have a Material Adverse Effect;






	 	(f)	 	(litigation) to the extent not disclosed in a document provided under
clauses 9.6(a), 9.6(b), 9.6(c), 9.6(d) or 9.6(e), notice in writing and in reasonable
detail of any litigation, arbitration, administrative proceeding or other procedure
for the resolution of disputes commenced, taking place, pending or to its knowledge,
threatened







	 	 	 	 	 
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	 	 	 	against any Group Member (other than an Excluded Entity) or any Group Member’s
assets (other than an Excluded Entity’s assets) which has or is likely to have a
Material Adverse Effect; and
	 
	 	(g)	 	(requested information) such other information relating to the business,
operations and condition (financial or otherwise) of the Group (excluding the Excluded
Entities) as from time to time may be reasonably requested by a Creditor (but
excluding any information which the Guarantor is bound by an obligation of
confidentiality not to disclose).










	9.7	 	Officer’s certificate
	 
	 	 	Each set of consolidated financial statements delivered pursuant to clause 9.6(a)
or 9.6(b) shall be accompanied by:






	 	(a)	 	a supplementary set of financial statements for the Group (excluding the
Excluded Entities), showing adjustments made to the consolidated financial statements
to eliminate the impact of the Excluded Entities; and
	 
	 	(b)	 	a certificate of the chief financial officer, treasurer or principal
accounting officer of the Group setting forth the information (including reasonably
detailed calculations) required in order to establish whether the Guarantor was in
compliance with the relevant requirements of clause 9.4 and the amount of after-tax
income of James Hardie Technology Limited that is required to be distributed pursuant
to the JHT Undertaking.






	10	 	Events of default
	 
	10.1	 	Events of Default
	 
	 	 	Each of the following is an Event of Default:






	 	(a)	 	(non-payment of principal) a Borrower fails to pay an amount of principal
payable by it under a Facility Agreement when due and does not remedy that failure
within 2 Business Days after that amount becomes due and payable;
	 
	 	(b)	 	(non-payment of other amounts) a Borrower fails to pay any amount, other than
an amount described in paragraph (a), payable by it under a Facility Agreement and
does not remedy that failure within 3 Business Days after that amount becomes due and
payable;
	 
	 	(c)	 	(financial undertakings)






	 	(i)	 	there is at any time a breach of any financial
undertaking in clause 9.4 and, in the case of a breach of clause 9.4(d) or
9.4(e), the breach is not cured within 10 Business Days of the Guarantor
receiving written notice from a Creditor (or, in the case of a syndicated
facility, the facility agent) requiring such remedy; or






	 	 	 	 	 
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	 	(ii)	 	the Guarantor fails to deliver a certificate as required
by clause 9.7(b) within 7 days of receipt of written notice from a Creditor
of failure to provide such certificate;






	 	(d)	 	(other default)






	 	(i)	 	any Obligor defaults in the performance of or compliance
with any material obligation contained in a Transaction Document (other than
those referred to in clause 10.1(a), 10.1(b) or 10.1(c)); and






	 	(ii)	 	the default is not waived or, if capable of remedy, the
default is not remedied within 21 days of the Obligor receiving written
notice from a Creditor (or, in the case of a syndicated facility, the
facility agent) referring specifically to this clause 10.1(d) and requiring
such remedy;






	 	(e)	 	(AFFA) the Group Member primarily liable to make funding payments to the Fund
under the AFFA defaults in the performance of, or compliance with, its obligation to
make any such payment when due or within any applicable grace period and such default
is not cured by that Group Member or the Guarantor within 3 Business Days;
	 
	 	(f)	 	(misrepresentation)






	 	(i)	 	any representation or warranty made or deemed to be made
by an Obligor in a Transaction Document proves to have been inaccurate in
any material respect when made or deemed to be repeated; and
	 
	 	(ii)	 	the misrepresentation or breach of warranty is not waived
or, if capable of remedy, the matter giving rise to the misrepresentation or
breach of warranty is not remedied within 21 days of the Obligor becoming
aware that the representation or warranty was inaccurate when made or deemed
to have been repeated;






	 	(g)	 	(cross-default)






	 	(i)	 	an Obligor is in default in the payment of any Financial
Indebtedness that is outstanding in an aggregate principal amount of at
least US$20,000,000 (or its equivalent in another currency) beyond any
period of grace provided with respect thereto and such Financial
Indebtedness is not paid within 3 Business Days; or
	 
	 	(ii)	 	any Financial Indebtedness of an Obligor exceeding
US$20,000,000 (or its equivalent in another currency) has become, or has
been declared, due and payable before its stated maturity and such Financial
Indebtedness is not paid within 3 Business Days.






	 	 	 	 	 
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	 	(h)	 	(insolvency) a Relevant Entity:






	 	(i)	 	is generally not paying, or admits in writing its
inability to pay, its debts as they become due;
	 
	 	(ii)	 	files, or consents by answer or otherwise to the filing
against it of, a petition for relief or reorganisation or arrangement or any
other petition in bankruptcy, for liquidation or to take advantage of any
bankruptcy, insolvency, reorganization, moratorium or other similar law of
any jurisdiction (for the avoidance of doubt, this includes, in respect of a
person established under Dutch law, a filing of a petition by it with
any court in the Netherlands in relation to its bankruptcy (faillissement) or
suspension of payments (surseance van betaling) and, in respect of a person
established under Irish law, a filing of a petition with any court in the
Republic of Ireland in relation to its liquidation, the bringing forward of
a scheme of arrangement or the appointment of an examiner);
	 
	 	(iii)	 	makes an assignment for the benefit of its creditors;
	 
	 	(iv)	 	consents to the appointment of a custodian, receiver,
receiver and manager, trustee or other officer with similar powers with
respect to it or with respect to any substantial part of its property;
	 
	 	(v)	 	consents to the appointment of an administrator;
	 
	 	(vi)	 	is adjudicated as insolvent or to be liquidated; or
	 
	 	(vii)	 	takes corporate action for the purpose of any of the
foregoing.






	 	(i)	 	(receiver)






	 	(i)	 	A court or Government Agency of competent jurisdiction
enters an order appointing, without consent by a Relevant Entity, a
custodian, receiver, receiver and manager, trustee or other officer with
similar powers with respect to the Relevant Entity or with respect to any
substantial part of its property, or constituting an order for relief or
approving a petition for relief or reorganisation or any other petition in
bankruptcy or for liquidation or to take advantage of any bankruptcy or
insolvency law of any jurisdiction, or ordering the dissolution, winding-up
or liquidation of the Relevant Entity, or any such petition shall be filed
against the Relevant Entity (other than a frivolous or vexatious petition)
and such petition is not dismissed or cancelled within 30 days (and for the
avoidance of doubt, this includes, in respect of a person established under
Dutch law, appointment by a court of a trustee (curator) in relation to its
bankruptcy or appointment by a court of a receiver (bewindvoerder) in
relation to its provisional suspension of payments and, in respect of
a






	 	 	 	 	 
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	 	 	 	person established under Irish law, appointment by a court of an
examiner); or
	 
	 	(ii)	 	an administrator of the Relevant Entity is appointed; or
	 
	 	(iii)	 	a receiver, receiver and manager, administrative
receiver or similar officer is appointed to all or any substantial part of
the assets of a Relevant Entity in respect of Financial Indebtedness that
has been due and payable for at least 5 Business Days in an aggregate
principal amount of at least US$20,000,000 (or its equivalent in another
currency) and that officer is not removed within 7 days of his appointment;








	 	(j)	 	(judgment) a final judgment or judgments for the payment of money aggregating
in excess of US$20,000,000 (or its equivalent in another currency) are rendered
against a Relevant Entity and such judgments are not, within 45 days after entry
thereof, bonded, discharged or stayed pending appeal, or are not discharged within 45
days after the expiration of such stay;
	 
	 	(k)	 	(vitiation of documents)






	 	(i)	 	any material provision of a Transaction Document ceases
for any reason to be in full force and effect or becomes void, voidable or
unenforceable;
	 
	 	(ii)	 	any law suspends, varies, terminates or excuses
performance by an Obligor of any of its material obligations under a
Transaction Document or purports to do any of the same;
	 
	 	(iii)	 	it becomes impossible or unlawful for an Obligor to
perform any of its material obligations under a Transaction Document or for
the Creditors to exercise all or any of their rights, powers and remedies
under a Transaction Document; or
	 
	 	(iv)	 	an Obligor alleges that a Transaction Document has been
affected as described in this paragraph;






	 	(l)	 	(ownership of Borrower) any Borrower ceases to be directly or indirectly
fully owned and controlled by the Guarantor;
	 
	 	(m)	 	(Authorisation) any Authorisation necessary in connection with the execution,
delivery or performance by an Obligor of the Transaction Documents, or the validity or
enforceability of the Transaction Documents, is not granted or ceases to be in full
force and effect for any reason or is modified or amended in a manner which, in the
reasonable opinion of all Creditors, would have a Material Adverse Effect; or
	 
	 	(n)	 	(material change) a change occurs in the financial condition of the Group (as
a whole, but excluding the Excluded Entities) which has a Material Adverse Effect.






	 	 	 	 	 
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	10.2	 	Consequences of default
	 
	 	 	If an Event of Default is continuing, a Creditor (or, in the case of a syndicated
facility, an agent or trustee acting on the instructions of the Majority Creditor) may
declare at any time by notice to the Obligors’ Agent that:






	 	(a)	 	an amount equal to all or any part of the Outstanding Moneys payable to the
Creditor (or, in the case of a syndicated facility, the facility agent) is:






	 	(i)	 	payable on demand; or
	 
	 	(ii)	 	immediately due for payment;






	 	(b)	 	the obligations of the Creditor specified in the notice are terminated and
cancelled.






	 	 	A Creditor (or, in the case of a syndicated facility, the facility agent) may make either
or both of these declarations. The making of either of them gives immediate effect to its
provisions.
	 
	11	 	Review events
	 
	 	 	If, at any time after the date of a Facility Agreement and for any reason, whether
or not within the control of the Obligors:






	 	(a)	 	a Change of Control occurs;
	 
	 	(b)	 	the securities of the Guarantor are suspended from quotation by ASX for more
than 10 Business Days or the Guarantor is removed from the Official List of ASX; or
	 
	 	(c)	 	provisions made by the Group in accordance with GAAP for asbestos related
liabilities (if any) not arising in connection with the AFFA exceed 15% of
Consolidated Net Worth at that time (with Consolidated Net Worth for this purpose
calculated by adding back all such asbestos related liabilities under this paragraph
(c), ignoring the 15% cap),






	 	 	then the Guarantor must notify each Creditor (or, in the case of a syndicated facility,
the facility agent) in writing of the occurrence of the event as soon as reasonably
practicable. A Creditor may, by notice to any Borrower (with a reasonably detailed
explanation of the reasons for its election to discontinue funding that Borrower) within
60 days of the date of receipt of notice from the Guarantor:






	 	(d)	 	cancel its commitment to provide financial accommodation under the relevant
Facility Agreement with immediate effect; and/or
	 
	 	(e)	 	declare the moneys borrowed under the relevant Facility Agreement to be, and
the borrowed moneys will be, due and payable on a date no earlier than 90 days from
the date of the Creditor’s notice.







	 	 	 	 	 
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	12	 	Costs and indemnities
	 
	12.1	 	What the Borrower agrees to pay
	 
	 	 	Each relevant Borrower agrees to pay a Creditor promptly on demand to the Obligors’
Agent from that Creditor (except in the case of a Creditor under a syndicated facility, in
which case demand must be made by the facility agent):






	 	(a)	 	the reasonable Costs of each Creditor in connection with:






	 	(i)	 	the registration of any Transaction Document; and






	 	(ii)	 	giving and considering consents, waivers, variations,
discharges and releases requested by the relevant Borrower, the Guarantor or
the Obligors’ Agent;






	(b)	 	the Costs of each Creditor in exercising, enforcing or preserving rights in
connection with a Transaction Document; and
	 
	(c)	 	Taxes and fees (including registration fees) (other than Excluded Taxes) and
fines and penalties in respect of fees paid in connection with any Transaction
Document or a payment or receipt or any other transaction contemplated by any
Transaction Document. However, the relevant Borrower need not pay a fine or penalty
in connection with Taxes or fees to the extent that it has lodged with the relevant
Creditor sufficient cleared funds for the relevant Creditor to be able to pay the
Taxes or fees by the due date.






	 	 	This clause 12.1 shall not apply to any amounts, which have otherwise been paid or
compensated for under a Transaction Document.
	 
	12.2	 	Indemnity
	 
	 	 	Each relevant Borrower indemnifies each Creditor against any claim, action, damage,
loss, liability, cost, charge, expense, outgoing and payment of Break Costs which that
Creditor pays, suffers, incurs or is liable for in connection with:






	 	(a)	 	any failure by the relevant Borrower to draw down financial accommodation
requested by it under a Transaction Document for any reason except default of a
Creditor;
	 
	 	(b)	 	financial accommodation under a Transaction Document being repaid, discharged
or made payable other than at its maturity, an interest payment date or other due date
applicable to it;
	 
	 	(c)	 	any failure to prepay any part of the amount outstanding to a Creditor in
accordance with a prepayment notice given under a Facility;
	 
	 	(d)	 	a Creditor acting in connection with a Transaction Document in good faith on
fax or telephone instructions which have no apparent irregularity on their face,
purport to originate from the offices of an Obligor or to be given by an Authorised
Officer of an Obligor which,






	 	 	 	 	 
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	 	 	 	in the case of fax instructions, are signed and such signature accords with a
current specimen signature of an Authorised Officer in the possession of the
Creditor;
	 
	 	(e)	 	an Event of Default or Potential Event of Default;
	 
	 	(f)	 	a Creditor exercising or attempting to exercise a right or remedy in
connection with a Transaction Document after an Event of Default; or
	 
	 	(g)	 	any indemnity a Creditor gives a Controller or administrator of the Obligor.









	 	 	Each Borrower agrees to pay amounts due under this indemnity on demand to the Obligors’
Agent from the applicable Creditor (except in the case of a Creditor under a syndicated
facility, in which case demand must be made by, and payment must be made to the facility
agent).
	 
	12.3	 	Currency conversion on judgment debt
	 
	 	 	If a judgment, order or proof of debt for an amount in connection with a
Transaction Document is expressed in a currency other than that in which the amount is due
under the Transaction Document, then the relevant Borrower indemnifies each Creditor
against:






	 	(a)	 	any difference arising from converting the other currency if the rate of
exchange used by the Creditor under clause 4.2 (“Currency of payment”) for converting
currency when it receives a payment in the other currency is less favourable to the
Creditor than the rate of exchange used for the purpose of the judgment, order or
acceptance of proof of debt; and
	 
	 	(b)	 	the Costs of conversion.






	 	 	Each Borrower agrees to pay amounts due under this indemnity to a Creditor on demand from
that Creditor (except in the case of a Creditor under the syndicated facility, in which
case demand must be made by the facility agent).
	 
	12.4	 	Indirect Taxes






	 	(a)	 	All payments to be made by an Obligor under or in connection with any
Transaction Document have been calculated without regard to Indirect Tax. If all or
part of any such payment is the consideration for a taxable supply or chargeable with
Indirect Tax then, when the Obligor makes the payment:






	 	(i)	 	it must pay to the Creditor an additional amount equal to
that payment (or part) multiplied by the appropriate rate of Indirect Tax;
and
	 
	 	(ii)	 	the Creditor will promptly provide to the Obligor a tax
invoice complying with the relevant law relating to that Indirect Tax.






	 	 	 	 	 
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	 	(b)	 	Where a Transaction Document requires an Obligor to reimburse a Creditor for
any costs or expenses, that Obligor shall also at the same time pay and indemnify that
Creditor against all Indirect Tax incurred by that Creditor in respect of the costs
or expenses save to the extent that that Creditor is entitled to repayment or credit
in respect of the Indirect Tax. The Creditor will promptly provide to the Obligor a
tax invoice complying with the relevant law relating to that Indirect Tax.







	13	 	Interest on overdue amounts
	 
	13.1	 	Obligation to pay
	 
	 	 	If an Obligor does not pay any amount under any Transaction Document (including an
amount of interest payable under this clause 13.1 on the due date for payment, that
Obligor must pay interest on that amount at the Default Rate. The interest accrues daily
from (and including) the due date to (but excluding) the date of actual payment and is
calculated on actual days elapsed and either a 360 or 365 day year, whichever is the
length of time customarily adopted for such calculations for the currency in which the
relevant amount is denominated.
	 
	 	 	The relevant Obligor must pay interest under this clause to the relevant Creditor.
	 
	13.2	 	Compounding
	 
	 	 	Interest payable under clause 13.1 (“Obligation to pay”), which is not paid when
due for payment, may be added to the overdue amounts by the relevant Creditor on the last
Business Day of each calendar month. Interest is payable on the increased overdue amount
at the Default Rate in the manner set out in clause 13.1 (“Obligation to pay”).
	 
	13.3	 	Interest following judgment
	 
	 	 	If a liability becomes merged in a judgment, the relevant Obligor must pay interest
on the amount of that liability as an independent obligation. This interest:






	 	(a)	 	accrues daily from (and including) the date the liability becomes due for
payment both before and after the judgment up to (but excluding) the date the
liability is paid; and
	 
	 	(b)	 	is calculated at the judgment rate or the Default Rate (whichever is higher).






	 	 	The relevant Obligor must pay interest under this clause 13 to the relevant Creditor on
demand from the relevant Creditor.






	 	 	 	 	 
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Part 3 General





	14	 	Change of Borrowers
	 
	14.1	 	New Borrowers
	 
	 	 	A Wholly Owned Subsidiary of the Guarantor may, with the consent of each relevant
Creditor, become a party to this amended and restated deed as a Borrower (after the date
of this amended and restated deed) by:






	 	(a)	 	signing and delivering to each relevant Creditor (or, in the case of a
syndicated facility, the facility agent) a deed poll substantially in the form of
schedule 3 (“Form of New Borrower Deed Poll”); and
	 
	 	(b)	 	doing any other thing the relevant Creditors reasonably request to ensure the
enforceability of that company’s obligations as a Borrower and, if requested, agrees
to provide an opinion in form and substance satisfactory to the relevant Creditors
from legal advisers of recognised standing acceptable to the relevant Creditors in
that company’s place of incorporation confirming such enforceability.






	 	 	The Guarantor will confirm in writing to each relevant Creditor that the Guarantee Trust
Deed applies to the borrowings of the new Borrower under the relevant Facility Agreements.
	 
	14.2	 	Release of Borrowers






	 	(a)	 	The Guarantor may request that a Borrower cease to be a Borrower by giving to
each relevant Creditor (or, in the case of a syndicated facility, the facility agent)
a duly completed Release Request executed by an Authorised Officer of the Guarantor
and the Borrower that is, subject to the remaining provisions of this clause, to cease
being a Borrower.
	 
	 	(b)	 	On giving a Release Request to the Creditor (or, in the case of a syndicated
facility, the facility agent) pursuant to clause 14.2(a), the Guarantor and the
Borrower identified in that Release Request represent and warrant to the Creditor that
no Event of Default or Potential Event of Default is outstanding or would result from
the release of that Borrower from its obligations under this amended and restated
deed.
	 
	 	(c)	 	The Creditor (or, in the case of a syndicated facility, the facility agent)
must, as soon as reasonably practicable after receiving a Release Request, execute a
Deed of Release releasing the Borrower identified in the Release Request from its
obligations under this amended and restated deed if, and only if:






	 	(i)	 	no amount due and payable to that Creditor by that
Borrower under this amended and restated deed remains outstanding and
unpaid; and







	 	 	 	 	 
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	 	(ii)	 	that Creditor is not committed to providing further
financial accommodation to that Borrower pursuant to any Facility.






	 	(d)	 	The Borrower identified in the Release Request will cease to be a Borrower
when the Creditor (or, in the case of a syndicated facility, the facility agent)
executes a Deed of Release in respect of that Borrower.






	15	 	Dealing with interests
	 
	15.1	 	Dealings by Obligors
	 
	 	 	An Obligor may only assign or otherwise deal with its rights or obligations under
any Transaction Document with the consent of each Creditor.
	 
	15.2	 	Dealings by Creditors
	 
	 	 	A Creditor may assign, transfer, sub-participate or otherwise deal with all or any
of its rights or obligations under a Transaction Document at any time if:






	 	(a)	 	the Obligors’ Agent has given its prior consent, which consent shall not be
unreasonably withheld;
	 
	 	(b)	 	in respect of any Dutch Borrower, the assignment, transfer, sub-participation
or other dealing is to or with a PMP; and
	 
	 	(c)	 	in the case of a transfer of obligations, the transfer is effected by a
novation in form and substance reasonably satisfactory to the relevant Borrower.






	15.3	 	Change in lending office
	 
	 	 	A Creditor may change its lending office if it first notifies and consults with the
Obligors’ Agent. If this occurs, clause 15.5 will apply.
	 
	15.4	 	Securitisation permitted






	 	(a)	 	Subject to clause 15.4(b), a Creditor may, without having to obtain the consent
of or notify any Obligor, assign, transfer, sub-participate or otherwise deal with all
or any part of its rights and benefits under any Transaction Document to a trustee of
a trust, company or other entity which in each case is established for the purposes of
securitisation and, to the extent required for the Dutch Borrower to comply with the
Banking Act on the Financial Supervision is a PMP.
	 
	 	(b)	 	Notwithstanding any assignment, transfer, sub-participation or other dealing
by that Creditor under clause 15.4(a):






	 	(i)	 	that Creditor remains bound by, and must continue to
perform all its obligations under the Transaction Documents;
	 
	 	(ii)	 	that Creditor is the only person entitled to exercise any
power, and no assignee, transferee, sub-participant or other person







	 	 	 	 	 
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	 	 	 	who obtains an interest in any of the rights or benefits of
that Creditor under the Transaction Documents pursuant to clause 15.4(a) may do so; and
	 
	 	(iii)	 	any amount payable by the Obligors to that Creditor under
any Transaction Document will, if paid by an Obligor to that Creditor,
operate as an effective discharge of the Obligor’s obligation to make that
payment.






	 	(c)	 	Nothing done by a Creditor under this clause 15.4 will affect any Obligor’s
rights under any Transaction Documents.






	15.5	 	No increased costs
	 
	 	 	Despite anything to the contrary in this amended and restated deed or the
Transaction Documents, if a Creditor changes its lending office or transfers, assigns,
novates or otherwise deals with its rights or obligations under the Transaction Documents,
then no Obligor will be required to pay:






	 	(a)	 	any net increase in the total amount of fees, Taxes, costs, expenses or
charges which arises as a consequence of the change in lending office, transfer,
assignment, novation or other dealing; or
	 
	 	(b)	 	any fees, Taxes, costs, expenses or charges in respect of the change in
lending office, transfer, assignment, novation or other dealing.






	 	 	A substitution will be regarded as a transfer for the purposes of this clause 15.5.
	 
	15.6	 	Professional Market Party (PMP)
	 
	 	 	For so long as JHIF is an Obligor, the Obligors acknowledge that unless the
Creditors are notified in writing by the Obligors’ Agent of a change in the meaning of
“PMP” as defined in the Act on the Financial Supervision, the Creditors will rely on, and
will not independently investigate, the definition of PMP set out in this amended and
restated deed for the purpose of complying with the requirements of clause 15.2(b) and
15.4(a).
	 
	16	 	Obligors’ Agent
	 
	16.1	 	Obligors’ Agent as agent of the Obligors
	 
	 	 	Each Obligor (other than the Obligors’ Agent):






	 	(a)	 	irrevocably authorises the Obligors’ Agent to act on its behalf as its agent
in relation to the Transaction Documents, including:






	 	(i)	 	to give and receive as agent on its behalf all notices
and instructions (including drawdown notices);
	 
	 	(ii)	 	to sign on its behalf all documents in connection with
the Transaction Documents (including amendments and






	 	 	 	 	 
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	 	 	 	variations of any Transaction Documents, and to execute any new
Transaction Documents); and





	 	(iii)	 	to take such other action as may be necessary or
desirable under or in connection with the Transaction Documents; and






	 	(b)	 	confirms that it will be bound by any action taken by the Obligors’ Agent
under or in connection with the Transaction Documents.






	16.2	 	Acts of Obligors’ Agent






	 	(a)	 	The respective liabilities of each of the Obligors under the Transaction
Documents shall not be in any way affected by:






	 	(i)	 	any actual or purported irregularity in any act done or
failure to act by the Obligors’ Agent;
	 
	 	(ii)	 	the Obligors’ Agent acting (or purporting to act) in any
respect outside any authority conferred upon it by any Obligor; or
	 
	 	(iii)	 	any actual or purported failure by or inability of the
Obligors’ Agent to inform any Obligor of receipt by it of any notification
under the Transaction Documents.






	 	(b)	 	In the event of any conflict between any notices or other communications of
the Obligors’ Agent and any other Obligor, those of the Obligors’ Agent shall prevail.






	17	 	Notices
	 
	17.1	 	Form
	 
	 	 	Unless expressly stated otherwise in a Transaction Document, all notices,
certificates, consents, approvals, waivers and other communications in connection with
that Transaction Document (“Notices”) must be in writing, signed by an Authorised Officer
of the sender and marked for attention as set out or referred to in the Details of this
amended and restated deed or another Transaction Document or, if the recipient has
notified otherwise, marked for attention in the way last notified.
	 
	17.2	 	Delivery
	 
	 	 	Notices must be:






	 	(a)	 	delivered to the address set out or referred to in this amended and restated
deed or as set out as the recipient’s relevant address in another Transaction
Document; or
	 
	 	(b)	 	sent by prepaid post (airmail, if appropriate) to the address set out or
referred to in the Details or as set out as the recipient’s address in another
Transaction Document; or







	 	 	 	 	 
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	 	(c)	 	sent by fax to the fax number set out or referred to in the Details or as set
out as the recipient’s relevant fax number in another Transaction Document.






	 	 	However, if the intended recipient has notified a changed postal address or changed fax
number, then the communication must be to that address or number.
	 
	17.3	 	When effective
	 
	 	 	Notices take effect from the time they are received unless a later time is
specified in them.
	 
	17.4	 	Receipt — postal
	 
	 	 	If sent by post, Notices are taken to be received three Business Days after posting
(or five Business Days after posting if sent across national boundaries).
	 
	17.5	 	Receipt — fax
	 
	 	 	If sent by fax, Notices are taken to be received at the time shown in the
transmission report as the time that the whole fax was sent.
	 
	17.6	 	Receipt — general
	 
	 	 	Despite clauses 17.4 (“Receipt — postal”) and 17.5 (“Receipt — fax”), if Notices
are received after 5:00pm in the place of receipt or on a non-Business Day, they are taken
to be received at 9:00am on the next Business Day.
	 
	17.7	 	Notices to or from facility agent
	 
	 	 	A Notice to or from a facility agent appointed under a syndicated facility
constitutes sufficient notice to or from the Creditors under that Facility Agreement for
the purposes of this amended and restated deed.
	 
	17.8	 	Waiver of notice period
	 
	 	 	The Majority Creditor may waive a period of notice required to be given by an
Obligor under any Transaction Document.
	 
	18	 	General
	 
	18.1	 	Consents
	 
	 	 	Each Obligor agrees to comply with all conditions in any consent a Creditor gives
in connection with a Transaction Document if the Obligor relies on that consent in
performing its obligations under the Transaction Documents.
	 
	18.2	 	Certificates
	 
	 	 	A Creditor may give an Obligor a certificate about an amount payable or other
matter in connection with a Transaction Document. Subject to any applicable provision of
the Transaction Documents specifying the form or







	 	 	 	 	 
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	 	 	content of the certificate (including clause 6.2 of this amended and restated deed), the
certificate is sufficient evidence of the amount or matter, unless it is proved to be
incorrect.






	18.3	 	Set-off
	 
	 	 	At any time after a declaration is made under clause 10.2 of this amended and
restated deed, the Creditor making the declaration (or on whose behalf a declaration was
made by a facility agent for a syndicate of financiers) may set off any amount due for
payment by the Creditor to an Obligor against any amount due for payment by the Obligor to
the Creditor under the Transaction Document.
	 
	18.4	 	Discretion in exercising rights
	 
	 	 	A Creditor may exercise a right or remedy or give or refuse its consent under a
Transaction Document in any way it considers appropriate (including by imposing
conditions).
	 
	18.5	 	Partial exercising of rights
	 
	 	 	If a Creditor does not exercise a right or remedy under a Transaction Document
fully or at a given time, the Creditor may still exercise it later.
	 
	18.6	 	No liability for loss
	 
	 	 	No Creditor is liable for loss caused by the exercise or attempted exercise of,
failure to exercise, or delay in exercising, a right or remedy under a Transaction
Document.
	 
	18.7	 	Conflict of interest
	 
	 	 	A Creditor’s rights and remedies under any Transaction Document may be exercised
even if this involves a conflict of duty or the Creditor has a personal interest in their
exercise.
	 
	18.8	 	Remedies cumulative
	 
	 	 	The rights and remedies of a Creditor under any Transaction Document are in
addition to other rights and remedies given by law independently of the Transaction
Document.
	 
	18.9	 	Indemnities
	 
	 	 	Any indemnity in a Transaction Document is a continuing obligation, independent of
each Obligor’s other obligations under that Transaction Document and continues after the
Transaction Document ends. It is not necessary for a Creditor to incur expense or make
payment before enforcing a right of indemnity under a Transaction Document.







	 	 	 	 	 
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	18.10	 	Rights and obligations are unaffected
	 
	 	 	Rights given to a Creditor under a Transaction Document and each Obligor’s
liabilities under it are not affected by anything which might otherwise affect them at
law.
	 
	18.11	 	Inconsistent law
	 
	 	 	To the extent permitted by law, each Transaction Document prevails to the extent it
is inconsistent with any law.
	 
	18.12	 	Supervening legislation
	 
	 	 	Any present or future legislation which operates to vary the obligations of any
Obligor in connection with a Transaction Document with the result that a Creditor’s
rights, powers or remedies are adversely affected (including by way of delay or
postponement) is excluded except to the extent that its exclusion is prohibited or
rendered ineffective by law.
	 
	18.13	 	Variation
	 
	 	 	A provision of a Transaction Document, or right created under it, may not be varied
except in writing signed by the party or parties to be bound (whether directly or through
a properly authorised agent or attorney). A provision of this amended and restated deed
may only be amended by agreement between the Obligors and each relevant Creditor.
	 
	18.14	 	Waiver
	 
	 	 	A provision of this amended and restated deed or right created under it may not be
waived except in writing by the party granting the waiver.
	 
	18.15	 	Confidentiality
	 
	 	 	No Obligor or Creditor may disclose information provided by any party to a
Transaction Document that is not publicly available (including the existence of or
contents of any Transaction Document) except:






	 	(a)	 	to any person in connection with an exercise of rights or (subject to
compliance with clause 15 a dealing with rights or obligations under a Transaction
Document (including when a Creditor consults other Creditors after an Event of Default
or in connection with preparatory steps such as negotiating with any potential
assignee or potential sub-participant or other person who is considering contracting
with the Creditor in connection with a Transaction Document);
	 
	 	(b)	 	on a confidential basis, to officers, employees, legal and other advisers and
auditors of any Obligor or Creditor;
	 
	 	(c)	 	on a confidential basis, to any party to a Transaction Document or any
Related Entity of any party to a Transaction Document;
	 
	 	(d)	 	with the consent of the party who provided the information (such consent not
to be unreasonably withheld); or







	 	 	 	 	 
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	 	(e)	 	as required by any law or stock exchange or any Governmental Agency
(including for Australian, US, Irish and Dutch tax authorities, in each case to the
extent applicable).






	 	 	Each Obligor and Creditor is taken to consent to disclosures made in accordance with this
clause 18.15.





	18.15A	 	Creditor’s compliance with law
	 
	 	 	Each Obligor consents to a Creditor obtaining, verifying, recording and/or
disclosing to any Government Agency all information concerning that Obligor, the
Transaction Documents and the transactions contemplated thereunder which the Creditor is
required by the law of any country (including, without limitation, laws relating to money
laundering and/or the financing of terrorism) to obtain, verify, record and/or disclose.
The Obligors agree to provide all information to the Creditor that the Creditor reasonably
requires to comply with any such law.
	 
	18.16	 	No responsibility for other’s obligations
	 
	 	 	If a Creditor does not comply with its obligations under a Transaction Document,
this does not relieve any other Creditor or an Obligor of any of their respective
obligations. No party is responsible for the obligations of another party.
	 
	18.17	 	Further steps
	 
	 	 	Each Obligor agrees to do anything a Creditor reasonably asks (such as obtaining
consents, signing and producing documents and getting documents completed and signed):






	 	(a)	 	to bind the Obligor and any other person intended to be bound under a
Transaction Document;
	 
	 	(b)	 	to enable a Creditor to register any power of attorney or any Transaction
Document; or
	 
	 	(c)	 	to show whether the Obligor is complying with this amended and restated deed.






	18.18	 	Counterparts
	 
	 	 	A Transaction Document may consist of a number of copies, each signed by one or
more parties to the document. If so, the signed copies are treated as making up the one
document.
	 
	18.19	 	Governing law
	 
	 	 	Each Transaction Document is governed by the law in force in New South Wales. Each
Obligor submits to the non-exclusive jurisdiction of the courts of that place.






	 	 	 	 	 
	© Mallesons Stephen Jaques

	 	James Hardie — Common Terms Deed Poll
	 	 
	9807451_3

	 	 	 	 







57









 







	18.20	 	Serving documents
	 
	 	 	Subject to clause 18.21 (“Process Agent”) and without preventing any other method
of service, any document in a court action may be served on a party by being delivered to
or left at that party’s address for service of notices under clause 17 (“Notices”).
	 
	18.21	 	Process Agent
	 
	 	 	Each Non-Australian Obligor appoints James Hardie Australia Pty Limited (ABN 12 084
635 558) of Level 3, 22 Pitt Street, Sydney NSW 2000 (Attention: The Company Secretary)
as its agent for service of process to receive any document in connection with the
Transaction Documents. If for any reason James Hardie Australia Pty Limited (ABN 12 084
635 558) ceases to be able to act as process agent for the Non-Australian Obligor, the
Non-Australian Obligor must promptly appoint another person in New South Wales to act as
its process agent and must promptly notify each Creditor (or, in the case of a syndicated
facility, the facility agent) of that appointment.
	 
	18.22	 	Each Creditor’s consent to this amended and restated deed
	 
	 	 	The terms of this amended and restated deed will take effect (and prevail over the
terms of the Previous Deeds) as between the Obligors and a Creditor only after that
Creditor has provided its written consent to the Obligors in respect of this amended and
restated deed and until that time the Previous Deeds will apply as between the Obligors
and that Creditor.
	 
	 	 	Subject to the above paragraph, the Previous Deeds remain in full force and effect.





EXECUTED as a deed poll






	 	 	 	 	 
	© Mallesons Stephen Jaques

	 	James Hardie — Common Terms Deed Poll
	 	 
	9807451_3

	 	 	 	 








58









 








James Hardie — Common Terms Deed Poll



Schedule 1 — Verification Certificate (clause 3.1









[name]

[address]




Tel [insert]

Fax [insert]




To: [Name of financier]



US$ [•]  Facility Agreement dated  [•]  20## between [Name of Borrower] and [Name
of financier]
(“Facility Agreement”)



I [name] am a director of [James Hardie International Finance B.V. (with corporate seat in
Amsterdam) / James Hardie International Finance Limited (with a registered office in Dublin) /
James Hardie Industries N.V. (with corporate seat in Amsterdam) / James Hardie Building Products,
Inc. (incorporated in Delaware)] (“Company”). I refer to the Facility Agreement. Definitions in
the Facility Agreement apply in this Certificate.




I CERTIFY as follows:





	1	 	Attached to this Certificate is a complete and up to date copy of:






	 	(a)	 	the constituent documents of the Company; and
	 
	 	(b)	 	a written resolution of the board of directors of the Company and power of
attorney in the name of the Company, evidencing resolutions of the board of
directors of the Company approving execution of those of the following documents to
which the Company is expressed to be a party, appointing attorneys for that purpose
and appointing Authorised Officers of the Company for the purposes of those
documents:






	 	(i)	 	the Facility Agreement;
	 
	 	(ii)	 	the Common Terms Deed Poll; and
	 
	 	(iii)	 	any Beneficiary Nomination Letter, Facility Nomination
Letter or Financier Nomination Letter in relation to the Facility Agreement.






	 	 	 	Those resolutions and that power of attorney have not been amended, modified or
revoked and are in full force and effect.







	 	 	 	 	 
	© Mallesons Stephen Jaques

	 	James Hardie — Common Terms Deed Poll
	 	 
	9807451_3

	 	 	 	 






59









 












	2	 	Set out below are specimen signatures of the Authorised Officers of the Company.
	 
	 	 	Authorised Officers#





	 	 	 	 	 
	Name	 	Position	 	Signature
	*

	 	*	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	*

	 	*	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	*

	 	*	 	 
	 

	 	 	 	 







 




			
	#	 	One of the Authorised Officers must be the chief financial officer, treasurer or
principal accounting officer of the Group (see clause 9.7 of the Common Terms Deed Poll).





	 	 	 	 	 
	DATED

	 	2008
	 	 
	 
	 	 	 	 
	 	 	 
	Name:
	 	 	 	 






	 	 	 	 	 
	© Mallesons Stephen Jaques

	 	James Hardie — Common Terms Deed Poll
	 	 
	9807451_3

	 	 	 	 







60









 








James Hardie — Common Terms Deed Poll




Schedule 2 — Facility Nomination Letter

(clause 2.1









James Hardie International

Finance B.V.

Atrium, Unit 08

Strawinskylaan 3077

1077 ZX Amsterdam

The Netherlands




Tel +31 20 3012980

Fax +31 20 4042544




			
	 	 	 
	To: [Creditor]
	 	[Date]






James Hardie — Common Terms Deed Poll — Facility Nomination Letter



We refer to the James Hardie — Common Terms Deed Poll as amended and restated on [•] 2009 (“CTDP”).



For the purposes of the CTDP, on and from the date of this letter:





	1.	 	we nominate [each of] the following agreement[s] as a Facility Agreement:
	 
	 	 	Name: [•]

Date: [•]

Parties: [•]
	 
	 	 	[repeat as necessary]
	 
	2.	 	the agreement, and each document named or referred to as a [“Financing Document”] in such
agreement, is a Transaction Document for the purposes of the CTDP; and
	 
	3.	 	we nominate you as a “Creditor” pursuant to that Facility Agreement.




Please confirm your acceptance of the above nomination, and the benefit and obligations of the
CTDP, by signing and returning the attached copy of this letter.



Clauses 1 (“Interpretation”) and 18.19 (“Governing law”) of the CTDP described above apply to this
letter as they were fully set out in this letter.




For and on behalf of

James Hardie International Finance B.V. as Obligors’ Agent

(with corporate seat in Amsterdam)



Authorised Officer: [Name]




	 	 	 	 	 
	© Mallesons Stephen Jaques

	 	James Hardie — Common Terms Deed Poll
	 	 
	9807451_3

	 	 	 	 






61









 







We accept and agree to the above nomination. We accept the benefit and obligations of the CTDP,
and we agree to be bound by the terms of that deed.




 





	 	 	 
	*	 	If JHIF is an Obligor, add the following sentence: We confirm that we are [insert relevant
category of PMP, eg, a company from which redeemable funds will be obtained in an amount of at
least EUR 50,000 (or the equivalent in another currency)] and accordingly we are a PMP within the
meaning of the CTDP. In making this representation, we rely on, and have not independently
investigated, the definition of PMP set out in the CTDP.






For and on behalf of [Insert name of Creditor]




by its Authorised Officer

Name:

Title:






	 	 	 	 	 
	© Mallesons Stephen Jaques

	 	James Hardie — Common Terms Deed Poll
	 	 
	9807451_3

	 	 	 	 







62









 








James Hardie — Common Terms Deed Poll




Schedule 3 — Form of New Borrower Deed Poll

(clause 14.1




Deed Poll




	 	 	 
	New Borrower

	 	[Insert name and ABN/ACN or other registration number]
	 
	 	 
	 

	 	of: [Insert address]
	 
	 	 
	 

	 	Fax no:
	 
	 	 
	 

	 	Attention:
	 
	 	 
	CTDP

	 	James Hardie — Common Terms Deed Poll as amended and restated on [•] 2009





BY THIS DEED POLL the New Borrower described above, for the benefit of each Creditor under
the CTDP described above:





	(a)	 	irrevocably agrees that from the date of this deed poll it is a Borrower under the CTDP;
	 
	(b)	 	irrevocably agrees to comply with and be bound by all current and future obligations of a
Borrower or an Obligor under the CTDP or any other Transaction Document to which it is a
party;
	 
	(c)	 	acknowledges having read a copy of the CTDP before signing this deed poll;
	 
	(d)	 	gives, as at the date of this deed poll, all representations and warranties on the part of a
Borrower or an Obligor contained in the CTDP; and
	 
	(e)	 	acknowledges receiving valuable consideration for this deed poll.




Clauses 1 (“Interpretation”) and 18.19 (“Governing law”) of the CTDP described above apply to this
deed poll as if they were fully set out in this deed poll.



DATED [Insert Date]



EXECUTED as a deed poll



[Insert execution clause for New Borrower and, if it is a Dutch company, its corporate seat]





	 	 	 	 	 
	© Mallesons Stephen Jaques

	 	James Hardie — Common Terms Deed Poll
	 	 
	9807451_3

	 	 	 	 







63









 








James Hardie — Common Terms Deed Poll




Schedule 4 — Form of Release Request

(clause 14.2)




[Date]




To:     [Each relevant Creditor]




James Hardie — Common Terms Deed Poll — Release Request



We refer to the deed entitled James Hardie — Common Terms Deed Poll as amended and restated on
[•] 2009 (“CTDP”).





	(a)	 	Release request
	 
	 	 	We request each of you release [Insert name of retiring Borrower] (“Retiring Borrower”)
from all liability under the CTDP pursuant to the attached Deed of Release.
	 
	(b)	 	Representation and warranty
	 
	 	 	We represent and warrant that no Event of Default or Potential Event of Default is
continuing or will result from the release of the Retiring Borrower.




Clause 1 of the CTDP applies to this Release Request as if it was fully set out in this Release
Request.




	 	 	 
	For and on behalf of

	 	For and on behalf of
	James Hardie Industries N.V. 

(with corporate seat in Amsterdam)

	 	[Insert the name of the retiring
Borrower and, if it is a Dutch company,
its corporate seat]
	 
	 	 
	Authorised Officer: [Name]

	 	Authorised Officer: [Name]






	 	 	 	 	 
	© Mallesons Stephen Jaques

	 	James Hardie — Common Terms Deed Poll
	 	 
	9807451_3

	 	 	 	 







64









 








James Hardie — Common Terms Deed Poll




Schedule 5 — Form of Deed of Release

(clause 14.2)




Deed of Release




	 	 	 
	Parties

	 	The Creditor, the Retiring Borrower and the Obligors’
Agent, as described below.
	 
	 	 
	Creditor

	 	[Insert name and ABN/ACN or other registration number
of a relevant Creditor]
	 
	 	 
	Retiring
Borrower

	 	[Insert name and ABN/ACN or other registration number]
	 
	 	 
	Obligors’
Agent

	 	[     ] on behalf of each Obligor other than the
Retiring Borrower.
	 
	 	 
	CTDP

	 	James Hardie — Common Terms Deed Poll as amended and
restated on [•] 2009.





The Creditor releases the Retiring Borrower described above from all liability under the CTDP
described above, with effect from [insert date or “the date of this deed”].



Nothing in this deed affects the obligations of the Retiring Borrower described above other than
under the CTDP.



Each Obligor (other than the Retiring Borrower) consents to this release and agrees that nothing in
this deed affects its obligations to the Creditor or the Creditor’s rights in respect of the
Obligors (other than the Retiring Borrower) under a Transaction Document.



Clauses 1 (“Interpretation”) and 18.19 (“Governing law”) of the CTDP described above apply to this
deed as if they were fully set out in this deed.



DATED [Insert date]



EXECUTED as a deed



[Insert execution clauses for (1) each Creditor, (2) the Obligors’ Agent (and its corporate seat)
on behalf of each Obligor other than the Retiring Borrower, and (3) the Retiring Borrower and, if
it is a Dutch company, its corporate seat]




	 	 	 	 	 
	© Mallesons Stephen Jaques

	 	James Hardie — Common Terms Deed Poll
	 	 
	9807451_3

	 	 	 	 






65











 





James Hardie — Common Terms Deed Poll




Signing page




	 	 	 	 	 	 	 
	DATED:

	 	 	2009	 	 	 
	 
	 	 	 	 	 	 
	SIGNED, SEALED AND

	 	 	)	 	 	 
	DELIVERED by

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	and

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	as attorneys for JAMES HARDIE

	 	 	)	 	 	 
	INTERNATIONAL FINANCE

	 	 	)	 	 	 
	B.V. under power of attorney dated

	 	 	)	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	)	 	 	 
	in the presence of:

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	 

	 	 	 	 	 	 
	Signature of witness

	 	 	)	 	 	By executing this amended and
	 

	 	 	)	 	 	restated deed each attorney states that
	 

	 	 	)	 	 	the attorney has received no notice of
	Name of witness (block letters)

	 	 	)	 	 	revocation of the power of attorney
	 
	 	 	 	 	 	 
	SIGNED, SEALED AND

	 	 	)	 	 	 
	DELIVERED by

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	and

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	as attorneys for JAMES HARDIE

	 	 	)	 	 	 
	INTERNATIONAL FINANCE

	 	 	)	 	 	 
	LIMITED under power of attorney

	 	 	)	 	 	 
	dated

	 	 	)	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	)	 	 	 
	in the presence of:

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	 

	 	 	 	 	 	 
	Signature of witness

	 	 	)	 	 	By executing this amended and
	 

	 	 	)	 	 	restated deed each attorney states that
	 

	 	 	)	 	 	the attorney has received no notice of
	Name of witness (block letters)

	 	 	)	 	 	revocation of the power of attorney






	 	 	 	 	 
	© Mallesons Stephen Jaques

	 	James Hardie — Common Terms Deed Poll
	 	 
	9807451_3

	 	 	 	 








66









 






	 	 	 	 	 	 	 
	SIGNED, SEALED AND

	 	 	)	 	 	 
	DELIVERED by

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	and

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	as attorneys for JAMES HARDIE

	 	 	)	 	 	 
	BUILDING PRODUCTS, INC.

	 	 	)	 	 	 
	under power of attorney dated

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	in the presence of:

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	Signature of witness

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	Name of witness (block letters)

	 	 	)	 	 	By executing this amended and
	 

	 	 	)	 	 	restated deed each attorney states that
	 

	 	 	)	 	 	the attorney has received no notice of
	 

	 	 	)	 	 	revocation of the power of attorney
	 

	 	 	)	 	 	 
	SIGNED, SEALED AND

	 	 	)	 	 	 
	DELIVERED by

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	and

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	as attorneys for JAMES HARDIE

	 	 	)	 	 	 
	INDUSTRIES N.V. under power of

	 	 	)	 	 	 
	attorney dated

	 	 	)	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	)	 	 	 
	in the presence of:

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	Signature of witness

	 	 	)	 	 	By executing this amended and
	 

	 	 	)	 	 	restated deed each attorney states that
	 

	 	 	)	 	 	the attorney has received no notice of
	Name of witness (block letters)

	 	 	)	 	 	revocation of the power of attorney






	 	 	 	 	 
	© Mallesons Stephen Jaques

	 	James Hardie — Common Terms Deed Poll
	 	 
	9807451_3

	 	 	 	 







67