exv4w11






Exhibit 4.11









Novation Deed




Dated [•] 2009




James Hardie International Finance B.V. (“Outgoing Borrower”)

James Hardie International Finance Limited (“Incoming Borrower”)

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

[James Hardie Australia Pty Limited (ABN 12 084 635 558) (“JHA”)]

[•] (“Financier”)

James Hardie Industries N.V. (ABN 49 097 829 895) (“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




10376047_1




 









 





Novation Deed



Details



Interpretation — definitions are in clause 1.




	 	 	 	 	 
	 
	Parties	 	Outgoing Borrower, Incoming Borrower, JHBP, Financier and Guarantor
	 
	Outgoing Borrower

	 	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
	 
	Incoming

	 	Name
	 	James Hardie International Finance Limited
	 
	 	 	 	 
	Borrower
	 	 	 	 
	 

	 	Company 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
	 
	 	 	 	 
	 

	 	Attention
	 	Company Secretary






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

10376047_1

	 	Novation Deed

15 June 2010
	 	1





 









 






	 	 	 	 	 

	 
	[JHA

	 	Name
	 	James Hardie Australia Pty Limited
	 
	 	 	 	 
	 

	 	ABN
	 	12 084 635 558
	 
	 	 	 	 
	 

	 	Address
	 	Level 3
	 

	 	 	 	22 Pitt Street
	 

	 	 	 	Sydney NSW 2000
	 

	 	 	 	Australia
	 
	 	 	 	 
	 

	 	Fax
	 	+ 61 2 8274 5218
	 
	 		 	 
	 

	 	Attention
	 	Company Secretary]
	 
	Financier

	 	Name
	 	[•]
	 
	 	 	 	 
	 

	 	ABN / Company
No. (if applicable)
	 	[•]
	 
	 	 	 	 
	 

	 	Address
	 	[•]
	 
	 	 	 	 
	 

	 	Fax
	 	[•]
	 
	 	 	 	 
	 

	 	Attention
	 	[•]
	 
	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
	 






	 	 	 	 	 

	Recitals

	 	A
	 	The Outgoing Borrower, JHBP and the Financier are parties to
the Transaction Documents.
	 
	 	 	 	 
	 

	 	B
	 	The Outgoing Borrower, the Incoming Borrower, JHBP and the
Guarantor are parties to the Common Terms Deed Poll which is made for
the benefit of, and enforceable by, each Creditor (as defined in the
Common Terms Deed Poll).





	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

10376047_1

	 	Novation Deed

15 June 2010
	 	2






 









 






	 	 	 	 	 
	 

	 	C
	 	Pursuant to various Facility Nomination Letters, for the
purposes of the Common Terms Deed Poll:
	 
	 	 	 	 
	 

	 	 	 	(a) the Financier has been nominated as a “Creditor” in relation to each
of the Transaction Documents; and

	 
	 	 	 	 
	 

	 	 	 	
(b) each Facility Agreement has been nominated as a “Facility Agreement”.

	 
	 	 	 	 
	 

	 	D
	 	The Guarantor intends to transform its status to a Societas
Europaea and subsequently to transfer its registered office and
corporate domicile from The Netherlands to the Republic of Ireland
(together, the “Redomicile Transaction”).
	 
	 	 	 	 
	 

	 	E
	 	As part of the Redomicile Transaction, the Outgoing Borrower
intends to transfer all of rights and obligations under the Transaction
Documents to the Incoming Borrower pursuant to this deed.
	 






	 	 	 

	Date of the deed

	 	See Signing Page






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

10376047_1

	 	Novation Deed

15 June 2010
	 	3





 









 






Novation Deed




General Terms





	1	 	Interpretation
	 
	1.1	 	Definitions
	 
	 	 	The following meanings apply unless the contrary intention appears:
	 
	 	 	Common Terms Deed Poll means the deed poll named “James Hardie — Common Terms Deed Poll”
as amended and restated on or about the date of this deed given by the Outgoing Borrower,
the Incoming Borrower, JHBP and the Guarantor.
	 
	 	 	Details means the section of this deed headed “Details”.
	 
	 	 	Deed of Confirmation means the Deed of Confirmation dated 23 June 2009 between the
Outgoing Borrower, JHBP, the Guarantor and the Financier.
	 
	 	 	Effective Date means 4 September 2009 provided the Financier has confirmed receipt of the
items described in clause 4.4 of the Deed of Confirmation.
	 
	 	 	Facility Nomination Letter means each “James Hardie — Common Terms Deed Poll — Facility
Nomination Letter” between the Outgoing Borrower (as Obligors’ Agent) and the Financier.
	 
	 	 	Financier means the person so described in the Details.
	 
	 	 	JHISE means JHINV once it has transformed from its present corporate form as a Dutch NV
(Naamloze Vernootschap) into an SE (Societas Europaea).
	 
	 	 	Transaction Documents means each document set out in Schedule 1 (“Transaction Documents”)
	 
	1.2	 	Definitions in Common Terms Deed Poll
	 
	 	 	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 deed unless it is expressly
defined in this deed, in which case the meaning in this deed prevails.
	 
	1.3	 	Consideration
	 
	 	 	Each party to this deed acknowledges incurring obligations and giving rights under this
deed for valuable consideration received from each other party.
	 
	1.4	 	Further assurances
	 
	 	 	Each party shall take all steps, execute all documents and do everything reasonably
required by each other party to give effect to any of the transactions contemplated by
this deed.





	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

10376047_1

	 	Novation Deed

15 June 2010
	 	4





 









 












	2	 	Novation
	 
	2.1	 	Novation
	 
	 	 	With effect on and from the Effective Date:






	 	(a)	 	the Outgoing Borrower and the Financier have no further rights against each
other or obligations to each other in connection with the Transaction Documents, and
release each other from all claims, demands, costs and expenses arising in connection
with the Transaction Documents;
	 
	 	(b)	 	the Incoming Borrower has the same rights against, and owes the same
obligations to, the Financier in connection with the Transaction Documents and the
Financier has the same rights against, and owes the same obligations to the Incoming
Borrower in connection with the Transaction Documents, as if the Incoming Borrower
had been named as a party to the Transaction Documents instead of the Outgoing
Borrower from and including the date of each Transaction Document to which the
Outgoing Borrower is a party.
	 
	 	 	 	(In this paragraph (b) a reference to the “same” rights or obligations is a
reference to rights or obligations which are the same in nature and character as
those rights or obligations rather than the same as to the person entitled to
them or obliged to perform them);
	 
	 	(c)	 	each reference in the Transaction Documents to the Outgoing Borrower with a
corporate seat in Amsterdam, The Netherlands will be read as a reference to the
Incoming Borrower with a registered office in Dublin, the Republic of Ireland; and
	 
	 	(d)	 	each reference to the account details of the Outgoing Borrower is a
reference to the account details for the Incoming Borrower, as notified by the
Incoming Borrower to the Financier promptly following the Effective Date and
otherwise from time to time; and
	 
	 	(e)	 	the address for service of notice of the Incoming Borrower for the purposes
of the Transaction Documents is as specified in the Details.






	2.2	 	JHBP rights and obligations unaffected
	 
	 	 	Notwithstanding anything in this deed, the rights and obligations as between JHBP and the
Financier under the Transaction Documents remain unaffected by the release and assumption
in clause 2.1.
	 
	2.3	 	[JHA rights and obligations unaffected
	 
	 	 	Notwithstanding anything in this deed, the rights and obligations as between JHA and the
Financier under the Transaction Documents remain unaffected by the release and assumption
in clause 2.1.]
	 
	2.4	 	Obligors’ Agent
	 
	 	 	With effect on and from the Effective Date, for the purposes of the Common Terms Deed
Poll:






	 	(a)	 	the Outgoing Borrower ceases to be the “Obligors’ Agent”;





	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

10376047_1

	 	Novation Deed

15 June 2010
	 	5





 









 












	 	(b)	 	the New Borrower is appointed as “Obligors’ Agent” by JHBP and the
Guarantor and the New Borrower accepts that appointment; and
	 
	 	(c)	 	this deed serves as notification of the appointment to the Financier (as a
Creditor under the Common Terms Deed Poll).






	2.5	 	Consent and acknowledgement
	 
	 	 	Each party:






	 	(a)	 	consents to the novation effected by this deed; and
	 
	 	(b)	 	acknowledges that nothing in this deed or any of the transactions
contemplated by this deed constitutes:






	 	(i)	 	a breach of any term of the Transaction Documents;
	 
	 	(ii)	 	an Event of Default under the Common Terms Deed Poll; or
	 
	 	(iii)	 	any other event or circumstance which, with the giving
of notice, lapse of time, or fulfilment of any condition, would cause the
acceleration of any payment to be made under, or the termination or
enforcement of any of the Facility Agreements.






	3	 	Representations and Warranties
	 
	3.1	 	General representations and warranties
	 
	 	 	Each party represents and warrants to each other party that:






	 	(a)	 	(incorporation) it is validly incorporated and has the power to carry on
its business as it is now being conducted;
	 
	 	(b)	 	(power) it has the power to enter into and perform its obligations under
this deed;
	 
	 	(c)	 	(authority) it has taken all action which is necessary to authorise the
entry into and performance of its obligations under this deed; and
	 
	 	(d)	 	(binding obligations) this deed constitutes legal, valid and binding
obligations, enforceable in accordance with their terms.






	3.2	 	Representations and warranties from each Obligor
	 
	 	 	Each Obligor makes the representations and warranties contained in clause 8.1
(“Representations and warranties”) of the Common Terms Deed Poll on the Effective Date.
	 
	4	 	Governing Law
	 
	 	 	Clause 18.19 (“Governing law”) of the Common Terms Deed Poll applies to this deed as
if fully set out in this deed poll






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

10376047_1

	 	Novation Deed

15 June 2010
	 	6





 









 












	5	 	General
	 
	5.1	 	Costs
	 
	 	 	The parties agree to pay their own legal and other costs and expenses in connection with
the negotiation, preparation, execution and completion of this deed and of other related
documentation, except stamp duty.
	 
	5.2	 	Stamp duty
	 
	 	 	The Incoming Borrower agrees to pay all stamp duty (including fines and penalties)
chargeable, payable or assessed in relation to this deed and any transaction contemplated
by it.
	 
	5.3	 	Counterparts
	 
	 	 	This deed may be executed in counterparts. All counterparts when taken together
constitute one document and the date on which the last counterpart is executed will be the
date of the deed.
	 
	5.4	 	No merger
	 
	 	 	The representations, warranties and indemnities in this deed do not merge on the Effective
Date.
	 
	5.5	 	Construction
	 
	 	 	No rule of construction applies to the disadvantage of a party because that party was
responsible for the preparation of, or seeks to rely on this agreement or any part of it.
	 
	5.6	 	Entire agreement
	 
	 	 	This deed constitutes the entire agreement of the parties about its subject matter and
supersedes all previous agreements, understandings and negotiations on that subject.
	 
	5.7	 	Confidentiality
	 
	 	 	Clause 18.15 (“Confidentiality”) of the Common Terms Deed Poll applies to this deed as if
it were fully set out in this deed and as if the New Borrower is a “Obligor” for the
purposes of that clause.
	 
	5.8	 	Transaction Document
	 
	 	 	The parties agree that this deed is a Transaction Document for the purposes of the Common
Terms Deed Poll.




EXECUTED as deed.







	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

10376047_1

	 	Novation Deed

15 June 2010
	 	7







 









 








Novation Deed




Schedule 1 — Transaction Documents



Each of the following agreements are “Facility Agreements”:



[•]



and together with the following:





	 	[(a) 	 	 the Common Terms Deed Poll; and
	 
	 	(b)	 	each Confirmation evidencing a Transaction (each term as defined in the
ISDA Master Agreement noted above);]




are the “Transaction Documents”.






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

10376047_1

	 	Novation Deed

15 June 2010
	 	8






 









 








Novation Deed



Signing page



DATED: 
                                        
2009



[insert execution clauses]





 







	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

10376047_1

	 	Novation Deed

15 June 2010
	 	9