2013 Advance Payment Agreement



 Exhibit 4.45 

 
 



 

	
	 James Hardie Industries SE
 Europa House
2nd Floor, Harcourt Centre

Harcourt Street, Dublin 2, Ireland
  

T: +353 (0) 1 411 6924
 F: +353 (0) 1
497 1128



 March 2012 
  

			
	 The State of New South Wales
 c/- The Cabinet Office
 Level 39, Governor Macquarie
Tower
 1 Farrer Place

Sydney NSW 2000
  

Attention: Deputy Director – General (Legal)
	  	 Asbestos Injuries Compensation Fund Limited
 Suite 1, Level 7
 233 Castlereagh Street
 Sydney NSW 2000
  
 Attention:
The Chief Executive Officer

		
	Copy to:	  	
		
	 NSW Department of Premier & Cabinet

Level 39, Governor Macquarie Tower

1 Farrer Place
 Sydney NSW 2000
  
 Attention: Mr Paul Miller
	  	 Lifetime Care and Support Authority
 Level 24
 580 George Street
 Sydney NSW 2000
  
 Attention:
Chief Executive Officer,
 Mr David Bowen


 Strictly Private & Confidential 
 Dear Sirs 
 AFFA Advance Payment 
 We refer to the Amended and Restated Final Funding Agreement dated 21 November 2006 (the “AFFA”) between James Hardie Industries SE (“JHISE”) (formerly known as
James Hardie Industries N.V), James Hardie 117 Pty Limited (“JH117”), Asbestos Injuries Compensation Fund Limited (“AICF”) and the State of New South Wales (as amended from time to time). 

JH117 proposes to pay in advance part of the Annual Payment it is required to contribute to the AICF in respect of the Payment Date of 1 July 2012 on
the basis set out in this letter. 
 JH117 will pay US$138,677,000 to the AICF on 2 April 2012 (the “2013 Advance Payment”)
as a prepayment under clause 9.7(a)(ii) of the AFFA provided, and on the basis, that the parties to the AFFA agree that: 
  

	(a)	this letter constitutes sufficient notice of the 2013 Advance Payment in lieu of the 10 Business Days’ notice required by clause 9.7(a) of the AFFA; and


  

	(b)	clause 9.14 of the AFFA does not apply in relation to the 2013 Advance Payment, but rather the provisions of this letter are to apply in lieu of clause 9.14; and


  

  
  

James Hardie Industries SE is a limited liability company incorporated in Ireland with its registered office at 

Europa House, Harcourt Centre, Harcourt Street, Dublin 2, Ireland. 
 Directors: Michael Hammes (Chairman), Brian Anderson (USA), David Dilger, David Harrison (USA), 
 Alison Littley (UK), James Osborne, Donald McGauchie (Australia), Rudy van deer Meer (Netherlands). 
 Chief Executive Officer: Louis Gries 
 Company number: 485719










	(c)	the 2013 Advance Payment will be converted to Australian dollars at the spot Australian dollar / US dollar exchange rate (for purchasing AUD) shown on the Bloomberg
AUD/USD currency Bid-Quote page as at 10.00am (Sydney time) on 26 March 2012. 

 In relation to the 2013 Advance Payment:

  

	(i)	the amount of the 2013 Advance Payment shall be included in the net assets of the AICF for the purposes of calculating an Annual Contribution Amount if the Valuation
Ratio as at the last day of the Financial Year ending 31 March 2013 and each subsequent year is less than 2.75; 

  

	(ii)	the 2013 Advance Payment is not refundable and cannot cause the amount calculated under clause 9.3(a) of the AFFA to be negative; 


 

	(iii)	the 2013 Advance Payment will be included in the calculation of the Free Cash Flow in the Financial Year ending 31 March 2013 and the Free Cash Flow in each
subsequent year shall be calculated on the basis that the 2013 Advance Payment was made on 2 April 2012, but only if it is made on that date; 

  

	(iv)	 for the purposes of calculating the Free Cash Flow Amount in respect of the Payment Date of 1 July 2012, the Free Cash Flow will be equal to the
Free Cash Flow for the Financial Year ended 31 March 2012 pursuant to clause 9.5 of the AFFA less
US$396,220,0001 and adding that part of the 2013 Advance
Payment classified as “restricted cash” in the cash flow statement of the JHISE Group for the Financial Year ended 31 March 2012; 


  

	(v)	for the purposes of Schedule 3, the Annual Contribution Amount for the Financial Year ending 31 March 2012 and the Annual Contribution Amount in each subsequent
year shall be calculated on the basis that the 2013 Advance Payment was made on 2 April 2012, but only if it is made on that date; and 

  

	(vi)	in calculating the Valuation Ratio referred to in paragraph (a) of the definition of ED in clause 7.8(f) of the AFFA, the 2013 Advance Payment cannot render ED
equal to nil. 

 The attachment to this letter illustrates the intended effect on the Annual Payment in respect of the Payment Date
of 1 July 2012 of the calculation in paragraph (iv) above including the exchange rate to be used in making the relevant calculation. 

Please also confirm your acknowledgment and agreement of the above matters by signing and returning the attached copies of this letter to JHISE. The
parties to the AFFA acknowledge that except as amended by this letter, the terms of the AFFA remain in full force and effect. 
 Clauses 1
(Definitions and Interpretation), 26 (Governing law and Jurisdiction) and 27 (Counterparts) of the AFFA apply to this letter as if those provisions were set out in full in this letter. 

Executed as a deed 
 Signed, sealed
and delivered by James Hardie Industries SE 
  

			
	    /s/ James
Osborne                                        
	  	    /s/ Marcin
Firek                                        

	 Name:        James Osborne
	  	 Name:        MARCIN FIREK

	 Title:          Director
	  	 Title:          SECRETARY

		  	
                     DUBLIN,
IRELAND


  
  

	1 	 The 2013 Advance Payment is 35% of this amount, 35% being the applicable percentage determined in accordance with clause 9.6 of the AFFA.




	    	DUBLIN, IRELAND 








 Signed, sealed and delivered by James Hardie 117 Pty Limited 

 

			
	    /s/ Marcin
Firek                                        
	  	    /s/ G. M.
Jarvi                                        

	 Name:        MARCIN FIREK
	  	 Name:        GUY JARVI

	 Title:          COMPANY SECRETARY
	  	 Title:          DIRECTOR


 Accepted and Agreed: 
 Signed, sealed and delivered by The Honourable Gregory Eugene Smith MP, Attorney-General of New South Wales, 
 for The State of New South Wales 
     /s/ Gregory
Smith                                        

 Signed, sealed and delivered by Asbestos Injuries Compensation Fund Limited in its capacity as trustee for the Charitable Fund

  

			
	    /s/ Dennis
Loduwick                                	  	    /s/ Glenn
Revell                                
	 Name:        DENNIS LODUWICK
	  	 Name:        GLENN REVELL

	 Title:          Director
	  	 Title:          Company Secretary