exv4w12






Exhibit 4.12








James Hardie — Term Facility Agreement



Dated    2009



James
Hardie International Finance Limited (“Borrower” and “Obligors’ Agent”)

[•] (“Financier”)



     



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





 









 








James Hardie — Term Facility Agreement 

Contents




	 	 	 	 	 
	Details
	 	 	1	 
	General terms
	 	 	3	 
	 
	 
	1 Definitions
	 	 	3	 
	 
	 	 	 	 
	1.1 Definitions
	 	 	3	 
	1.2 Interaction with the Common Terms Deed Poll
	 	 	5	 
	 
	 
	2 The Facility and Facility Limit
	 	 	6	 
	 
	 	 	 	 
	2.1 Financier to fund
	 	 	6	 
	2.2 Maximum accommodation
	 	 	6	 
	 
	 
	3 Using the Facility
	 	 	6	 
	 
	 	 	 	 
	3.1 Drawing down
	 	 	6	 
	3.2 Requesting a drawdown
	 	 	6	 
	3.3 Effect of a Drawdown Notice
	 	 	6	 
	3.4 Conditions to first drawdown
	 	 	6	 
	3.5 Conditions to all drawdowns
	 	 	7	 
	3.6 Benefit of conditions
	 	 	7	 
	3.7 Currency and timing of drawdowns
	 	 	7	 
	 
	 
	4 Interest
	 	 	7	 
	 
	 	 	 	 
	4.1 Interest charges
	 	 	7	 
	4.2 Selection of Interest Period
	 	 	7	 
	4.3 When Interest Periods begin and end
	 	 	8	 
	4.4 Limit on Interest Periods
	 	 	8	 
	4.5 Notification of interest
	 	 	8	 
	4.6 Market disruption
	 	 	8	 
	4.7 Alternative basis of interest or funding
	 	 	9	 
	 
	 
	5 Repaying and prepaying
	 	 	9	 
	 
	 	 	 	 
	5.1 Repayment
	 	 	9	 
	5.2 Prepayment
	 	 	9	 
	5.3 Prepayment and the Facility Limit
	 	 	9	 
	 
	 
	6 Payments
	 	 	10	 
	 
	 	 	 	 
	6.1 Payment by direction
	 	 	10	 
	6.2 Amount Owing
	 	 	10	 
	6.3 Application of payments — pre-default
	 	 	10	 
	6.4 Application of payments — post-default
	 	 	10	 
	 
	 
	7 Cancellation
	 	 	10	 
	 
	 
	8 Fees
	 	 	10	 
	 
	 	 	 	 
	8.1 Approval Fee
	 	 	10	 
	8.2 Commitment fee
	 	 	10	 






	 	 	 
	Ó Mallesons Stephen Jaques 

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	 	James Hardie — Term Facility Agreement







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	9 Interest on overdue amounts
	 	 	11	 
	 
	 	 	 	 
	9.1 Obligation to pay
	 	 	11	 
	9.2 Compounding
	 	 	11	 
	9.3 Interest following judgment
	 	 	11	 
	 
	10 Money Laundering
	 	 	11	 
	 
	11 Governing law
	 	 	12	 
	 
	Schedule 1 - Drawdown Notice (clause 3)
	 	 	13	 
	 
	Schedule 2 - Selection Notice (clause 4.2)
	 	 	15	 
	 
	Signing page
	 	 	16	 






	 	 	 
	Ó Mallesons Stephen Jaques 

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	 	James Hardie — Term Facility Agreement






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James Hardie — Term Facility Agreement



Details



Interpretation – Definitions are in clause 1.




	 	 	 	 	 
	Parties	 	Borrower, Obligors’ Agent
and Financier, each as described below.	 	 
	 
	 
	Borrower and

Obligors’ Agent

	 	Name
	 	James Hardie International Finance
Limited
	 
	 	 	 	 
	 

	 	Corporate seat
	 	Ireland
	 
	 	 	 	 
	 

	 	Registered Number
	 	471702 
	 
	 	 	 	 
	 

	 	Address
	 	[Arthur Cox Building
	 

	 	 	 	Earlsfort Terrace
	 

	 	 	 	Dublin 2
	 

	 	 	 	Ireland]
	 
	 	 	 	 
	 

	 	Fax
	 	[+353 1 618 0618]
	 
	 	 	 	 
	 

	 	Attention
	 	[Bradwell Limited, Company Secretary]
	 
	Financier

	 	Name
	 	[•] 
	 
	 	 	 	 
	 

	 	ABN
	 	[•] 
	 
	 	 	 	 
	 

	 	Address
	 	[•] 
	 
	 	 	 	 
	 

	 	Fax
	 	[•] 
	 
	 	 	 	 
	 

	 	Attention
	 	[•] 
	 
	Facility

	 	Description
	 	Revolving US$ cash advance facility.
	 
	 	 	 	 
	 

	 	Facility Limit
	 	US$ [•]
	 
	 	 	 	 
	 

	 	Maturity Date
	 	The [•] anniversary of the date of this agreement.
	 
	 	 	 	 
	 

	 	Currency
	 	US$ 
	 
	 	 	 	 
	 

	 	Interest Rate
	 	For an Interest Period, means LIBOR plus the Margin.
	 
	 	 	 	 
	 

	 	Margin
	 	[•]






	 	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 







	 	 	 
	Ó Mallesons Stephen Jaques 

10065177_4

	 	James Hardie — Term Facility Agreement






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	 	Interest Periods
	 	Subject to clause 4.2 (“Selection of Interest
Period”), 1, 2, 3 or 6 months, or such other period as
agreed between the Borrower and Financier.
	 
	 	 	 	 
	 

	 	Purpose
	 	For general corporate purposes of the Group,
including, without limitation:
	 
	 	 	 	 
	 

	 	 	 	 •    to fund the Group’s working capital requirements;

	 
	 	 	 	 
	 

	 	 	 	 •    to refinance existing Financial Indebtedness and
pay related transaction costs;

	 
	 	 	 	 
	 

	 	 	 	 •    to fund or reimburse against capital expenditure
costs and payments to the Fund by any Group member; and/or

	 
	 	 	 	 
	 

	 	 	 	 •    to fund distributions or other capital payments (if
any).

	 
	Fees

(also see clause 8)

	 	Approval Fee
	 	[•]% of the Facility Limit, payable on the terms set
out in clause 8.1 (“Approval Fee”).
	 
	 
	 

	 	Commitment fee
	 	[•]% per annum of the applicable Margin calculated on the daily
balance of the Undrawn Facility Limit. It accrues and is payable on the
terms set out in clause 8.2 (“Commitment Fee”).
	 
	 
	Date of
agreement

	 	See Signing page	 	 







	 	 	 
	Ó Mallesons Stephen Jaques 

10065177_4

	 	James Hardie — Term Facility Agreement






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James Hardie — Term Facility Agreement




General terms





	1	 	Definitions
	 
	1.1	 	Definitions
	 
	 	 	Amount Owing means the total of all amounts which are then due for payment, or
which will or may become due for payment, in connection with any Financing Document
(including transactions in connection with them) to the Financier.
	 
	 	 	Availability Period means the period commencing on the date of this agreement and
ending on the Maturity Date or, if earlier, the date on which the Facility Limit is
cancelled in full.
	 
	 	 	Borrower means the person so described in the Details.
	 
	 	 	Common Terms Deed Poll means the deed poll entitled “James Hardie — Common Terms Deed
Poll” entered into by the Borrower and the Guarantor as amended and restated on or about
[•] 2009.
	 
	 	 	Default Rate means the applicable Interest Rate at the time plus 2% per annum. For
the purpose of this definition, 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 a year of 360 days as if the overdue amount is a cash advance with Interest Periods of
30 days (or another period chosen from time to time by the Financier) with the first
Interest Period starting on and including the due date.
	 
	 	 	Details means the section of this agreement headed “Details”.
	 
	 	 	Drawdown Date means the Business Day on which a drawdown of the Facility is or is to
be made but does not include a rollover of a Drawing on the last day of an Interest Period.
	 
	 	 	Drawdown Notice means a completed notice in writing, substantially in the form of, and
containing the information and representations and warranties set out in, schedule 1
(“Drawdown Notice”) and signed by an Authorised Officer of the Borrower.
	 
	 	 	Drawing means the outstanding principal amount of a drawdown made under the Facility.
	 
	 	 	Facility means the facility made available under this agreement.
	 
	 	 	Facility Limit means the amount set out as such in the Details, as reduced by the total of
all cancellations under this agreement.






	 	 	 
	Ó Mallesons Stephen Jaques 

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	 	James Hardie — Term Facility Agreement






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	 	 	Fee Payment Date means each 31 March, 30 June, 30 September and 31 December after the date
of this agreement.
	 
	 	 	Financier means the person so described in the Details.
	 
	 	 	Financing Document means each of:






	 	(a)	 	this agreement;
	 
	 	(b)	 	the Common Terms Deed Poll;
	 
	 	(c)	 	the Guarantee and Subordination Documents;
	 
	 	(d)	 	each Drawdown Notice;
	 
	 	(e)	 	each Selection Notice;
	 
	 	(f)	 	any other document which the Borrower and the Financier agree to be a
Financing Document; and
	 
	 	(g)	 	any document entered into for the purpose of amending or novating any of
the above.






	 	 	Interest Payment Date means, in respect of an Interest Period, the last day of that
Interest Period.
	 
	 	 	Interest Period means each period selected in accordance with clause 4.2 (“Selection
of Interest Period”).
	 
	 	 	Interest Rate means, subject to clause 4.6 (“Market disruption”), the interest rate
set out in the Details.
	 
	 	 	LIBOR means, in relation to any Drawing:






	 	(a)	 	the applicable British Bankers’ Association Interest Settlement Rate for
US$ and the relevant period displayed on the appropriate page of the Reuters screen
(but if the agreed page is replaced or service ceases to be available, the Financier
may specify another page or service displaying the appropriate rate after
consultation with the Borrower) (“Screen Rate”); or
	 
	 	(b)	 	(if no Screen Rate is available for US$ and the Interest Period of that
Drawing) the arithmetic mean of the rates (rounded upwards to four decimal places) as
supplied to the Financier at its request quoted by the principal London offices of at
least three leading international banks chosen by the Financier in consultation with
the Borrower to other leading banks in the London interbank market,






	 	 	as of 11:00am (London time) on the day two Business Days before the first day of an
Interest Period for which the interest rate is to be determined for the offering of
deposits in US$ and for a period comparable to the Interest Period for that Drawing.
	 
	 	 	Margin means on any day, the margin set out in the Details.







	 	 	 
	Ó Mallesons Stephen Jaques 

10065177_4

	 	James Hardie — Term Facility Agreement






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	 	 	Market Disruption Event means:






	 	(a)	 	at or about noon on the day two Business Days before the first day of an
Interest Period for which the interest rate is to be determined, by reason of
circumstances affecting the London interbank market for US$, the “LIBOR” component of
the Interest Rate cannot be determined; or
	 
	 	(b)	 	before close of business in London on the day two Business Days before the
first day of an Interest Period for which the interest rate is to be determined, the
Financier determines that the cost to it of obtaining matching deposits in the London
interbank market would be in excess of LIBOR.






	 	 	Maturity Date means the maturity date for the Facility as set out in the Details, but
if that is not a Business Day, then the preceding Business Day.
	 
	 	 	Selection Notice means a notice under clause 4.2(b) (“Selection of Interest Period”),
to be substantially in the form of schedule 2 (“Selection Notice”).
	 
	 	 	Undrawn Facility Limit means the Facility Limit less the aggregate of all Drawings
outstanding.






	1.2	 	Interaction with the Common Terms Deed Poll






	 	(a)	 	The Borrower acknowledges that:






	 	(i)	 	the Financier is a Creditor; and
	 
	 	(ii)	 	this agreement is a Facility Agreement,






	 	 	 	for the purposes of the Common Terms Deed Poll.
	 
	 	(b)	 	On execution of this agreement, the provisions of the Common Terms Deed
Poll (subject to paragraph (d) below) are incorporated into this agreement to the
intent and effect that any such provision for the benefit of a Creditor or the
Borrower (as defined in the Common Terms Deed Poll) may be enforced by the Financier
or the Borrower to the same extent as if the Financier was a party to the Common
Terms Deed Poll.
	 
	 	(c)	 	A term which has a defined meaning (including by reference to another
document) in the Common Terms Deed Poll has the same meaning when used in this
agreement unless it is expressly defined in this agreement, in which case the meaning
in this agreement prevails.
	 
	 	(d)	 	Where a conflict arises between a provision of the Common Terms Deed Poll
and this agreement, the Common Terms Deed Poll will prevail unless the provision in
this agreement includes words substantially to the effect of “Despite the terms of
the Common Terms Deed Poll”, in which case the relevant provision of this agreement
prevails.






	 	 	 
	Ó Mallesons Stephen Jaques 

10065177_4

	 	James Hardie — Term Facility Agreement








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	2	 	The Facility and Facility Limit
	 
	2.1	 	Financier to fund
	 
	 	 	The Financier agrees to provide to the Borrower the financial accommodation
requested by the Obligors’ Agent under this agreement.
	 
	2.2	 	Maximum accommodation
	 
	 	 	The financial accommodation to be provided under this agreement must not exceed the
Facility Limit.
	 
	3	 	Using the Facility
	 
	3.1	 	Drawing down
	 
	 	 	The Borrower need not use the Facility. However, if the Borrower wants to use the
Facility, it may do so by one or more drawdowns.
	 
	3.2	 	Requesting a drawdown






	 	(a)	 	If the Borrower wants a drawdown, the Obligors’ Agent must provide a written
Drawdown Notice to the Financier by 11:00am (London time) at least 2 Business Days
prior to the requested Drawdown Date (or such later time as the Financier may agree).
	 
	 	(b)	 	The minimum amount of a Drawing is the lesser of:






	 	(i)	 	US$1,000,000; and
	 
	 	(ii)	 	the Undrawn Facility Limit.






	 	(c)	 	Unless the Drawing is for the Undrawn Facility Limit, the Drawing must be
in integral multiples of $500,000.






	3.3	 	Effect of a Drawdown Notice
	 
	 	 	A Drawdown Notice is effective when the Financier actually receives it in legible
form. An effective Drawdown Notice is irrevocable.
	 
	3.4	 	Conditions to first drawdown
	 
	 	 	The Borrower agrees not to request the first drawdown, and a Financier is not
obliged to provide the first drawdown, unless:






	 	(a)	 	all the conditions precedent listed in clause 3 (“Conditions precedent”) of
the Common Terms Deed Poll have been either satisfied or waived in accordance with
that agreement; and
	 
	 	(b)	 	a completed Facility Nomination Letter nominating this agreement as a
Facility Agreement has been received by the Financier.







	 	 	 
	Ó Mallesons Stephen Jaques 

10065177_4

	 	James Hardie — Term Facility Agreement






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	3.5	 	Conditions to all drawdowns
	 
	 	 	In addition to the conditions precedent in clause 3 (“Conditions precedent”) of the
Common Terms Deed Poll, the Financier need not provide any financial accommodation on a
Drawdown Date unless it is satisfied that:






	 	(a)	 	the Drawdown Date is a Business Day during the Availability Period for the
Facility;
	 
	 	(b)	 	the amount of the Drawing equals or exceeds the minimum drawdown amount set
out in clause 3.2(b) (“Requesting a drawdown”);
	 
	 	(c)	 	after the Drawing has been made, the sum of all outstanding Drawings will
not exceed the Facility Limit;
	 
	 	(d)	 	the Financier has received a Drawdown Notice in respect of the requested
drawdown in accordance with clause 3.2 (“Requesting a drawdown”); and
	 
	 	(e)	 	the proposed Drawing is for one or more of the purposes set out in the
Details.






	3.6	 	Benefit of conditions
	 
	 	 	Each condition to a drawdown is for the sole benefit of the Financier and may only
be waived by the Financier.
	 
	3.7	 	Currency and timing of drawdowns
	 
	 	 	The Financier agrees to make each drawdown available to the account specified in
the relevant Drawdown Notice in immediately available US$ funds by 2:00pm (London time) on
the relevant Drawdown Date.
	 
	4	 	Interest
	 
	4.1	 	Interest charges
	 
	 	 	The Borrower must pay interest on each Drawing for each of its Interest Periods at
the applicable Interest Rate. Interest:






	 	(a)	 	accrues daily from and including the first day of an Interest Period to but
excluding the last day of the Interest Period; and
	 
	 	(b)	 	is payable in arrears on each relevant Interest Payment Date; and
	 
	 	(c)	 	is calculated on actual days elapsed and a year of 360 days.






	4.2	 	Selection of Interest Period
	 
	 	 	An Interest Period for a Drawing is:






	 	(a)	 	for the first Interest Period, the period specified in the Drawdown Notice
for that Drawing; and






	 	 	 
	Ó Mallesons Stephen Jaques 

10065177_4

	 	James Hardie — Term Facility Agreement







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	 	(b)	 	for each subsequent Interest Period, a period notified in a Selection
Notice given by the Borrower to the Financier on the Business Day before the last day
of the current Interest Period. However, in each case, the specified period must be
one that is set out in the Details. If the Obligors’ Agent does not give correct
notice, the subsequent Interest Period is the same length as the Interest Period
which immediately precedes it (or it is the period until the Maturity Date, if that
is shorter than the preceding Interest Period).






	4.3	 	When Interest Periods begin and end






	 	(a)	 	An Interest Period for a Drawing begins:






	 	(i)	 	for the first Interest Period, on its Drawdown Date; and
	 
	 	(ii)	 	for each subsequent Interest Period, on the day when the
preceding Interest Period for the Drawing ends.






	 	(b)	 	An Interest Period which would otherwise end on a day which is not a
Business Day ends on the next Business Day (unless that day falls in the following
month, in which case the Interest Period ends on the previous Business Day).
However, an Interest Period which would otherwise end after the Maturity Date ends on
the Maturity Date.
	 
	 	(c)	 	If an Interest Period of one or a number of months commences on a date in a
month for which there is no corresponding date in the month in which the Interest
Period is to end, it will end on the last Business Day of the latter month.






	4.4	 	Limit on Interest Periods
	 
	 	 	In selecting Interest Periods under clause 4.2 (“Selection of Interest Period”),
the Obligors’ Agent must ensure that there are no more than 5 different Interest Periods
at any one time.
	 
	4.5	 	Notification of interest
	 
	 	 	Interest on a Drawing is payable in immediately available funds.
	 
	 	 	The Financier will notify the Obligors’ Agent of the interest rates determined under this
agreement as soon as they are ascertained. Failure to do so will not affect the
obligations of the Borrower in any way.
	 
	4.6	 	Market disruption
	 
	 	 	If a Market Disruption Event occurs in relation to a Drawing for any Interest
Period, then the Interest Rate on that Drawing for the Interest Period shall be the rate
per annum which is the sum of:






	 	(a)	 	the Margin; and
	 
	 	(b)	 	the rate notified by the Financier as soon as practicable and in any event
before interest is due to be paid in respect of that Interest Period, to be that
which expresses as a percentage rate per annum the






	 	 	 
	Ó Mallesons Stephen Jaques 

10065177_4

	 	James Hardie — Term Facility Agreement







8










 






	 	 	 	cost to the Financier of funding its participation in that Drawing from whatever
source it may reasonably select.






	4.7	 	Alternative basis of interest or funding






	 	(a)	 	If a Market Disruption Event occurs and the Financier or the Borrower so
requires, the Financier and the Borrower shall enter into negotiations (for a period
of not more than thirty days) with a view to agreeing a substitute basis for
determining the rate of interest.
	 
	 	(b)	 	Any alternative basis agreed pursuant to paragraph (a) above shall, with
the prior consent of the Financier and the Borrower, be binding on each of them.






	5	 	Repaying and prepaying
	 
	5.1	 	Repayment
	 
	 	 	The Borrower agrees to repay the total of the Drawings and all interest and other
amounts (including default interest) which have accrued or which are otherwise payable
(but unpaid) in respect of this agreement on the Maturity Date.
	 
	5.2	 	Prepayment
	 
	 	 	The Borrower may prepay all or part of a Drawing as follows:






	 	(a)	 	if only part of a Drawing is prepaid, it must be at least US$1,000,000 and
a whole multiple of US$500,000, or such lesser amount as may be agreed by the
Financier (at its discretion) from time to time; and
	 
	 	(b)	 	the Borrower must also pay all accrued (but unpaid) interest on that
Drawing; and
	 
	 	(c)	 	the Obligors’ Agent must notify the proposed prepayment in writing to the
Financier at least 10 Business Days prior to the date of the requested prepayment (as
at close of business Sydney time) (once given, a notice of prepayment is irrevocable
and the Borrower is obliged to prepay in accordance with the notice).






	 	 	If the prepayment is made on an Interest Payment Date for the Drawing to be prepaid, no
Break Costs are payable. However, if the Borrower prepays on a day other than the
Interest Payment Date for the Drawing to be prepaid and the Financier incurs any Break
Costs as a result of such prepayment, then the Borrower will be liable for Break Costs (if
any) under clause 12 (“Costs and indemnities”) of the Common Terms Deed Poll.
	 
	5.3	 	Prepayment and the Facility Limit
	 
	 	 	The Facility Limit is not reduced by amounts prepaid under clause 5.2
(“Prepayment”).






	 	 	 
	Ó Mallesons Stephen Jaques 

10065177_4

	 	James Hardie — Term Facility Agreement








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	6	 	Payments
	 
	6.1	 	Payment by direction
	 
	 	 	If the Financier directs the Borrower to pay a particular party or in a particular
manner, the Borrower is taken to have satisfied its obligation to the Financier by paying
in accordance with the direction.
	 
	6.2	 	Amount Owing
	 
	 	 	Subject to the provisions of any Financing Document, the Borrower agrees to repay
the Amount Owing on the Maturity Date under this agreement.
	 
	6.3	 	Application of payments — pre-default
	 
	 	 	Prior to an Event of Default, the Financier will apply amounts paid by the Borrower
in accordance with the terms of the Financing Documents.
	 
	6.4	 	Application of payments — post-default
	 
	 	 	If an Event of Default subsists, the Financier may apply amounts paid by the
Borrower towards satisfaction of the Borrower’s obligations under the Financing Documents
in the manner it sees fit, unless the Financing Documents expressly provide otherwise.
This appropriation overrides any purported appropriation by the Borrower or any other
person.
	 
	7	 	Cancellation
	 
	 	 	The Borrower may cancel the Undrawn Facility Limit in whole or in part at any time
during the Availability Period by notifying the Financier in writing at least 2 Business
Days prior to the date the cancellation is to take effect. A partial cancellation must be
at least US$1,000,000, unless the Financier agrees otherwise. Once given, the notice is
irrevocable. The Facility Limit is reduced by the amount of any cancellation.
	 
	 	 	The Facility Limit is automatically cancelled at 5:30pm (London time) on the last day of
the Availability Period.
	 
	8	 	Fees
	 
	8.1	 	Approval Fee
	 
	 	 	The Borrower agrees to pay on execution of this agreement, an Approval Fee as set
out in the Details.
	 
	8.2	 	Commitment fee
	 
	 	 	The Borrower agrees to pay in arrears on each Fee Payment Date, on any cancellation
date described below and on the Maturity Date, the accrued but unpaid commitment fee as
set out in the Details.
	 
	 	 	If the Borrower cancels any of the Undrawn Facility Limit, it also agrees to pay on the
cancellation date, the commitment fee in respect of the cancelled






	 	 	 
	Ó Mallesons Stephen Jaques 
10065177_4

	 	James Hardie — Term Facility
Agreement







10









 







	 	 	amount from (but
excluding) the last Fee Payment Date up to and including the cancellation date.
	 
	 	 	The commitment fee is calculated on actual days elapsed using a 360 day year.
	 
	9	 	Interest on overdue amounts
	 
	 	 	This clause applies despite the provisions of the Common Terms Deed Poll.       
	 
	9.1	 	Obligation to pay
	 
	 	 	If the Borrower does not pay any amount under or in respect of this agreement
(including an amount of interest payable under this clause 9.1) on the due date for
payment, the Borrower must pay interest on that amount at the Default Rate. The interest
accrues daily from (and including) the due date to (but excluding) the date of actual
payment and is calculated on actual days elapsed and a year of 360 days.
	 
	 	 	The Borrower must pay interest under this clause to the Financier on demand from the
Financier on the last Business Day of each calendar month.
	 
	9.2	 	Compounding
	 
	 	 	Interest payable under clause 9.1 (“Obligation to pay”) which is not paid when due
for payment may be added to the overdue amount by the Financier on the last Business Day
of each calendar month. Interest is payable on the increased overdue amount at the
Default Rate in the manner set out in clause 9.1 (“Obligation to pay”).
	 
	9.3	 	Interest following judgment
	 
	 	 	If a liability becomes merged in a judgment, the Borrower must pay interest on the
amount of that liability as an independent obligation. This interest:






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






	 	 	The Borrower must pay interest under this clause to the Financier on demand from the
Financier.
	 
	10	 	Money Laundering
	 
	 	 	The Borrower agrees that the Financier may delay, block, or refuse to make any
payment if the Financier believes on reasonable grounds that making that payment will
breach any law in Australia or any other country where such
payment is to be made, and the Financier will incur no liability to the Borrower if it
does so.






	 	 	 
	Ó Mallesons Stephen Jaques 

10065177_4

	 	James Hardie — Term Facility Agreement







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	 	 	The Borrower must provide all information to the Financier that the Financier reasonably
requires to comply with any law in Australia or any other country. The Borrower agrees the
Financier may disclose information which it provides to the Financier where required by
any law in Australia or any other country.
	 
	 	 	Unless the Borrower has disclosed that it is acting in a trustee capacity or on behalf of
another party, the Borrower warrants that it is acting on its own behalf in applying for
and using any of the Financier’s products or services.
	 
	 	 	The Borrower declares and undertakes to the Financier that the payment of monies by the
Financier in accordance with any written instructions given by the Borrower will not
breach any law in Australia or any other country where such money is to be paid.
	 
	11	 	Governing law
	 
	 	 	This agreement is governed by the law in force in New South Wales and the Borrower
submits to the non-exclusive jurisdiction of the courts of that place.




EXECUTED as an agreement.





	 	 	 
	Ó Mallesons Stephen Jaques 

10065177_4

	 	James Hardie — Term Facility Agreement






12









 






James Hardie — Term Facility Agreement




Schedule 1 — Drawdown Notice (clause 3)




To: [                    ]




Attention: [                    ]




Fax: [                    ]




[Date]



Drawdown Notice — James Hardie — Term Facility Agreement dated [          ] 2009 between James Hardie
International Finance Limited (“Borrower” and
“Obligors’ Agent”) and
[          ]
(“Financier”) (“Facility Agreement”)



Under clause 3.2 (“Requesting a drawdown”) of the Facility Agreement, the Obligors’ Agent gives
notice as follows.1 



The Borrower wants to borrow under the Facility.





	•	 	The requested Drawdown Date is [          ].2
	 
	•	 	The amount of the proposed drawdown is US$[          ].
	 
	•	 	The requested first Interest Period is [          ].
	 
	•	 	The proposed drawdown is to be paid to:
	 
	 	 	Account number: [          ]
	 
	 	 	Account name: [          ]
	 
	 	 	Bank: [          ]
	 
	 	 	Branch: [          ]
	 
	 	 	Branch identifying number (Fedwire, BSB, etc): [          ]





Representations and Warranties



The Borrower represents and warrants that:



[for the first Drawdown only]: the representations and warranties in clause 8 (“Representations and
warranties”) of the Common Terms Deed Poll are correct and not misleading on the date of this
notice and that each will be correct and not misleading on the Drawdown Date.



[for any subsequent Drawdown]: those representations and warranties listed in clause 3.2(a)
(“Conditions to subsequent drawdowns”) of the Common Terms Deed Poll as required to be true on the
date of each drawdown notice, are correct and not misleading on the date of this notice and that
each will be correct and not misleading on the Drawdown Date.



No Event of Default or Potential Event of Default subsists at the date of this notice or will
result from the provision of the requested utilisation.




	 	 	 
	Ó Mallesons Stephen Jaques 

10065177_4

	 	James Hardie — Term Facility Agreement






13









 





Clause 1 (“Definitions”) of the Facility Agreement applies to this notice as if it was fully set
out in this notice.




                                      
                      

[Name of person] being

an Authorised Officer of

James Hardie International Finance Limited

as Obligors’ Agent (with corporate seat in Ireland)




Instructions for completion





	1	 	All items must be completed.
	 
	2	 	Must be a Business Day within the Availability Period.






	 	 	 
	Ó Mallesons Stephen Jaques 

10065177_4

	 	James Hardie — Term Facility Agreement








14









 






James Hardie — Term Facility Agreement




Schedule 2 — Selection Notice (clause 4.2)




To: [                    ]




Attention: [                    ]




Fax: [                    ]




[Date]



Selection Notice — James Hardie — Term Facility Agreement dated [     ] 2009 between James Hardie
International Finance Limited (“Borrower” and
“Obligors’ Agent”) and
[                    ]
(“Financier”) (“Facility Agreement”)



Terms defined in the Facility Agreement have the same meaning when used in this notice.



This is an irrevocable notice under clause 4.2 (“Selection of Interest Period”) of the Facility
Agreement.



Under clause 4.2 (“Selection of Interest Period”) of the Facility Agreement, the Obligors’ Agent
gives notice as follows:



The current Interest Period is due to end on [                    ].



The Interest Period following the current Interest Period is to be a period of
[                    ]1.




                                      
                      

[Name of person] being

an Authorised Officer of

James Hardie International Finance Limited

as Obligors’ Agent (with corporate seat in Ireland)




Instructions for completion





	1	 	To be an Interest Period set out in the Details






	 	 	 
	Ó Mallesons Stephen Jaques 

10065177_4

	 	James Hardie — Term Facility Agreement







15









 






James Hardie — Term Facility Agreement




Signing page




	 	 	 	 	 	 	 
	DATED:

	 	 	2009	 	 	 
	 
	 	 	 	 	 	 
	Borrower and Obligors’ Agent
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	SIGNED by

	 	) 
	 	 
	 

	 	) 
	 	 
	and

	 	) 
	 	 
	 

	 	) 
	 	 
	as attorneys for JAMES HARDIE

	 	) 
	 	 
	INTERNATIONAL FINANCE

	 	) 
	 	 
	LIMITED under power of attorney

	 	) 
	 	 
	dated

	 	) 
	 	 
	 

	 	) 
	 	 
	in the presence of:

	 	) 
	 	 
	 

	 	) 
	 	 
 
	 


	 	) 
	 	By executing this agreement each
	Signature of witness

	 	) 
	 	attorney states that the attorney has
	 
	 


	 	) 
	 	received no notice of revocation of
	Name of witness (block letters)

	 	) 
	 	the power of attorney
	 
	 	 	 	 	 	 
	Financier
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	SIGNED by

	 	) 
	 	 
	 

	 	) 
	 	 
	as attorney for [FINANCIER] under

	 	) 
	 	 
	power of attorney dated

	 	) 
	 	 
	in the presence of:

	 	) 
	 	 
	 

	 	) 
	 	 
	 

	 	) 
	 	 
	 

	 	) 
	 	 
	 

	 	) 
	 	 
	 


	 	) 
	 	 
	Signature of witness

	 	) 
	 	 
	 

	 	) 
	 	 
	 

	 	) 
	 	 
 
	 


	 	) 
	 	By executing this agreement the
	Name of witness (block letters)

	 	) 
	 	attorney states that the attorney has
	 

	 	) 
	 	received no notice of revocation of
	 

	 	) 
	 	the power of attorney






	 	 	 
	Ó Mallesons Stephen Jaques 

10065177_4

	 	James Hardie — Term Facility Agreement







16