exv4w14






Exhibit 4.14









James Hardie -

Performing Subsidiary

Undertaking and

Guarantee Trust Deed




Dated 19 December 2006



James Hardie 117 Pty Limited (formerly known as LGTDD Pty Limited) (“Performing Subsidiary”)

AET Structured Finance Services Pty Limited (“Undertaking and Guarantee Trustee”)




Mallesons Stephen Jaques

Level 60

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:YC:MJC




 









 







James Hardie — Performing Subsidiary
Undertaking and Guarantee Trust Deed


Contents




	 	 	 	 	 	 	 

	Details	 	 	1	 
	General terms	 	 	4	 
	 
	 
	Part 1 Preliminary	 	 	4	 
	 
	1

	 	Interpretation
	 	 	4	 
	 
	 	 	 	 	 	 
	1.1

	 	Definitions
	 	 	4	 
	1.2

	 	References to certain general terms
	 	 	12	 
	1.3

	 	Number
	 	 	13	 
	1.4

	 	Headings
	 	 	13	 
	1.5

	 	Undertaking and Guarantee Trustee’s limitation of liability
	 	 	13	 
	1.6

	 	Undertaking and Guarantee Trustee’s knowledge
	 	 	14	 
	1.7

	 	Reliance on notices
	 	 	15	 
	1.8

	 	Condition precedent
	 	 	15	 
	 
	2

	 	Consideration and benefit
	 	 	15	 
	 
	 	 	 	 	 	 
	2.1

	 	Deed and deed poll
	 	 	15	 
	2.2

	 	Benefit
	 	 	15	 
	2.3

	 	Consideration
	 	 	16	 
	2.4

	 	Ceasing to be a beneficiary
	 	 	16	 
	 
	3

	 	Inconsistency and advice
	 	 	17	 
	 
	4

	 	Termination
	 	 	17	 
	 
	Part 2 Trust and the Undertaking and Guarantee Trustee	 	 	18	 
	 
	5

	 	Trust
	 	 	18	 
	 
	 	 	 	 	 	 
	5.1

	 	Declaration of trust
	 	 	18	 
	5.2

	 	Duration of trust
	 	 	18	 
	5.3

	 	Trust name
	 	 	19	 
	 
	6

	 	Nature of Guarantee
	 	 	19	 
	 
	 	 	 	 	 	 
	6.1

	 	Several nature of the Guarantee
	 	 	19	 
	6.2

	 	Claims in Insolvency
	 	 	19	 
	6.3

	 	Demands prior to Insolvency
	 	 	19	 
	 
	7

	 	Undertaking and Guarantee Trustee
	 	 	19	 
	 
	 	 	 	 	 	 
	7.1

	 	Appointment
	 	 	19	 
	7.2

	 	Remuneration
	 	 	20	 
	7.3

	 	Power
	 	 	20	 
	7.4

	 	Specific responsibilities
	 	 	20	 
	7.5

	 	No other duties
	 	 	22	 
	7.6

	 	Delegation
	 	 	23	 
	7.7

	 	Indemnity
	 	 	23	 
	7.8

	 	Payment by Beneficiaries
	 	 	24	 







	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8351255_10

	 	James Hardie — Performing Subsidiary Undertaking and Guarantee Trust Deed

12 December 2006
	 	i





 









 






	 	 	 	 	 	 	 

	7.9

	 	Adjustments amongst Beneficiaries
	 	 	25	 
	 
	8

	 	Change of Undertaking and Guarantee Trustee
	 	 	25	 
	 
	 	 	 	 	 	 
	8.1

	 	Retirement
	 	 	25	 
	8.2

	 	Removal
	 	 	25	 
	8.3

	 	Permitted successors
	 	 	26	 
	8.4

	 	When retirement or removal takes effect
	 	 	26	 
	8.5

	 	Discharge of further obligations
	 	 	26	 
	8.6

	 	Turnover
	 	 	26	 
	 
	9

	 	Register
	 	 	27	 
	 
	 	 	 	 	 	 
	9.1

	 	Establishment and maintenance of Register
	 	 	27	 
	9.2

	 	Information required in Register
	 	 	27	 
	9.3

	 	No trust
	 	 	27	 
	9.4

	 	Register conclusive
	 	 	27	 
	9.5

	 	Update and correction of Register
	 	 	28	 
	9.6

	 	Inspection of Register
	 	 	28	 
	 
	Part 3 Undertaking	 	 	29	 
	 
	10

	 	Undertaking
	 	 	29	 
	 
	11

	 	Guarantee and indemnity
	 	 	29	 
	 
	 	 	 	 	 	 
	11.1

	 	Guarantee
	 	 	29	 
	11.2

	 	Indemnity
	 	 	29	 
	 
	12

	 	Interest
	 	 	30	 
	 
	 	 	 	 	 	 
	12.1

	 	Obligation to pay interest
	 	 	30	 
	12.2

	 	Compounding
	 	 	31	 
	12.3

	 	Interest following judgment
	 	 	31	 
	 
	13

	 	Extent of guarantee and indemnity
	 	 	31	 
	 
	14

	 	Rights of the Beneficiary are protected
	 	 	32	 
	 
	15

	 	Performing Subsidiary’s rights
	 	 	33	 
	 
	 	 	 	 	 	 
	15.1

	 	Performing Subsidiary’s rights are suspended
	 	 	33	 
	15.2

	 	Performing Subsidiary’s right of proof limited
	 	 	33	 
	 
	16

	 	Power of Attorney
	 	 	34	 
	 
	 	 	 	 	 	 
	16.1

	 	Appointment
	 	 	34	 
	16.2

	 	Powers
	 	 	34	 
	16.3

	 	Application of insolvency dividends
	 	 	34	 
	 
	Part 4 Voting in Insolvency and Distribution of Recovered Money	 	 	35	 
	 
	17

	 	Voting in Insolvency proceedings
	 	 	35	 
	 
	 	 	 	 	 	 
	17.1

	 	Obtaining instructions
	 	 	35	 
	17.2

	 	Voting
	 	 	35	 
	 
	18

	 	Distribution of Recovered Money
	 	 	36	 
	 
	 	 	 	 	 	 
	18.1

	 	How the Undertaking and Guarantee Trustee is to distribute
	 	 	36	 






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8351255_10

	 	James Hardie — Performing Subsidiary Undertaking and Guarantee Trust Deed

12 December 2006
	 	ii





 









 






	 	 	 	 	 	 	 

	18.2

	 	Manner of distribution
	 	 	37	 
	18.3

	 	Receipt by Beneficiary not through Undertaking and Guarantee Trustee
	 	 	37	 
	18.4

	 	Accounting to Undertaking and Guarantee Trustee
	 	 	37	 
	18.5

	 	Refund to Beneficiary
	 	 	38	 
	18.6

	 	Deemed Payment
	 	 	38	 
	 
	Part 5 General provisions	 	 	39	 
	 
	19

	 	Payments
	 	 	39	 
	 
	 	 	 	 	 	 
	19.1

	 	Manner of payment by the Performing Subsidiary
	 	 	39	 
	19.2

	 	Direction to pay
	 	 	39	 
	19.3

	 	Currency of payment
	 	 	39	 
	 
	20

	 	Application of payments
	 	 	40	 
	 
	 	 	 	 	 	 
	20.1

	 	Application of money
	 	 	40	 
	20.2

	 	Order of payment
	 	 	40	 
	20.3

	 	Suspense account
	 	 	40	 
	20.4

	 	Remaining money
	 	 	40	 
	20.5

	 	Credit from date of receipt
	 	 	40	 
	 
	21

	 	Withholding tax
	 	 	40	 
	 
	 	 	 	 	 	 
	21.1

	 	Payments by the Performing Subsidiary
	 	 	40	 
	21.2

	 	Tax credit
	 	 	41	 
	 
	22

	 	Indirect Taxes
	 	 	41	 
	 
	23

	 	Costs
	 	 	42	 
	 
	 	 	 	 	 	 
	23.1

	 	What the Performing Subsidiary agrees to pay
	 	 	42	 
	23.2

	 	Currency conversion on judgment debt
	 	 	42	 
	 
	24

	 	Reinstatement of rights
	 	 	43	 
	 
	25

	 	No merger
	 	 	43	 
	 
	26

	 	Dealings
	 	 	43	 
	 
	 	 	 	 	 	 
	26.1

	 	Dealings by the Performing Subsidiary with the Compensation Debt
	 	 	43	 
	26.2

	 	Dealings by the Performing Subsidiary
	 	 	44	 
	26.3

	 	Dealings by Beneficiaries
	 	 	44	 
	 
	27

	 	Notices
	 	 	44	 
	 
	 	 	 	 	 	 
	27.1

	 	Form
	 	 	44	 
	27.2

	 	Demand under Guarantee
	 	 	44	 
	27.3

	 	Delivery
	 	 	45	 
	27.4

	 	When effective
	 	 	45	 
	27.5

	 	Receipt — postal
	 	 	45	 
	27.6

	 	Receipt — fax
	 	 	45	 
	 
	28

	 	General
	 	 	45	 
	 
	 	 	 	 	 	 
	28.1

	 	Consents
	 	 	45	 
	28.2

	 	Prompt performance
	 	 	45	 






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8351255_10

	 	James Hardie — Performing Subsidiary Undertaking and Guarantee Trust Deed

12 December 2006
	 	iii





 









 






	 	 	 	 	 	 	 

	28.3

	 	Certificates
	 	 	45	 
	28.4

	 	Set-off
	 	 	46	 
	28.5

	 	Discretion in exercising rights
	 	 	46	 
	28.6

	 	Partial exercising of rights
	 	 	46	 
	28.7

	 	Indemnities
	 	 	46	 
	28.8

	 	Inconsistent law
	 	 	46	 
	28.9

	 	Supervening legislation
	 	 	46	 
	28.10

	 	Remedies cumulative
	 	 	46	 
	28.11

	 	Time of the essence
	 	 	46	 
	28.12

	 	Variation and waiver
	 	 	47	 
	28.13

	 	Confidentiality
	 	 	47	 
	28.14

	 	Further steps
	 	 	47	 
	28.15

	 	Counterparts
	 	 	48	 
	28.16

	 	Governing law
	 	 	48	 
	28.17

	 	Serving documents
	 	 	48	 
	Schedule 1(A) — Form of Beneficiary Nomination Letter (clause 2)	 	 	49	 
	Schedule 1(B) — Form of Beneficiary Change Notification (clause 9.1(b))	 	 	51	 
	Signing page	 	 	52	 






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8351255_10

	 	James Hardie — Performing Subsidiary Undertaking and Guarantee Trust Deed

12 December 2006
	 	iv





 









 






James Hardie — Performing Subsidiary
Undertaking and Guarantee Trust Deed


Details




Interpretation — definitions are in clause 1.




	 	 	 	 	 

	 
	Parties	 	Performing Subsidiary and Undertaking and Guarantee Trustee
	 
	Performing 

Subsidiary

	 	Name
	 	James Hardie 117 Pty Limited (formerly
known as LGTDD Pty Limited)
	 
	 	 	 	 
	 

	 	Incorporated in
	 	Commonwealth of Australia
	 
	 	 	 	 
	 

	 	ABN
	 	30 116 110 948
	 
	 	 	 	 
	 

	 	Address
	 	Level 3

32 Pitt Street 

Sydney NSW 2000

Australia
	 
	 	 	 	 
	 

	 	Fax
	 	+ 612 8274 5218
	 
	 	 	 	 
	 

	 	Attention
	 	Managing Director and Company Secretary
	 
	Undertaking
and Guarantee
Trustee

	 	Name
	 	AET Structured Finance Services Pty
Limited
	 
	 	 	 	 
	 

	 	ABN
	 	12 106 424 088
	 
	 	 	 	 
	 

	 	Address
	 	80 Alfred Street

Milsons Point NSW 2061
	 
	 	 	 	 
	 

	 	Fax
	 	02 9028 5942
	 
	 	 	 	 
	 

	 	Attention
	 	Corporate Trust
	 
	In favour of	 	Each Beneficiary as defined in this deed.
	 
	Recitals	 	A   JHIL was listed on the Australian Stock Exchange in 1951 and,
by that time, the business then carried on by JHIL and its subsidiaries had
been carried on in Australia, in one form or another and under the “James
Hardie” name, for at least 60 years.

	 
	 	 	 	 
	 	 	B   Under plans of reorganisation and capital restructuring
executed between 1998 and 2001, JHIL sold on arm’s length terms
substantially all of its business, operations and undertaking to JHINV and
its subsidiaries with the result that JHINV became the ultimate holding
company of the businesses formerly carried on or controlled by JHIL.








	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8351255_10

	 	James Hardie — Performing Subsidiary Undertaking and Guarantee Trust Deed

12 December 2006
	 	1





 









 






	 	 	 	 	 

	 	 	C   JHINV is a company organised under the laws of the
Netherlands and is listed on both the Australian Stock Exchange and the New
York Stock Exchange (with the listing on the latter exchange via American
Depository Receipts or equivalent or replacement securities). At the date
of this deed, the James Hardie Group carries on the business of
manufacturing building products in the United States of America, Australia,
New Zealand and the Philippines.

	 
	 	 	 	 
	 	 	D   On 21 December 2004, JHINV and others entered into the Heads
of Agreement containing, among other things, a set of agreed principles on
which the Performing Subsidiary will provide, and JHINV will guarantee the
payment of, funding to the Charitable Fund on a long term basis of
compensation for personal injury and death claims made in Australia against
JHIL or certain former subsidiaries of JHIL arising from exposure to
asbestos in Australia.

	 
	 	 	 	 
	 	 	E   The Heads of Agreement also provided that the payment
obligations of the Performing Subsidiary to the Charitable Fund are to be
subordinated to the obligations of the Performing Subsidiary to certain
lenders to it.

	 
	 	 	 	 
	 	 	F   The principles contained in the Heads of Agreement have been
developed and set out in a legally binding and enforceable agreement known
as the Original Final Funding Agreement.

	 
	 	 	 	 
	 	 	G   On 8 June 2006 the Fund Trustee executed a Deed of Accession
so as to become a party to the Original Final Funding Agreement.

	 
	 	 	 	 
	 	 	H   On 21 November 2006 the parties to the Original Final Funding
Agreement (including the Fund Trustee) entered into the Final Funding
Agreement, thereby amending and restating the Original Final Funding
Agreement.

	 
	 	 	 	 
	 	 	I   On or about 14 December 2006 Asbestos Injuries Compensation
Fund Limited entered into the Trust Deed and on or about 14 December 2006
in its capacity as trustee of the Discretionary Fund became a party to the
Final Funding Agreement by executing a Deed of Accession.

	 
	 	 	 	 
	 	 	J   The creditor of the Performing Subsidiary under the Final
Funding Agreement is the Fund Trustee.

	 
	 	 	 	 
	 	 	K   The
Performing Subsidiary wishes to provide separate guarantees under this deed to the providers from time to time of financial
accommodation to the Controlled Entities of the Performing Subsidiary.









	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8351255_10

	 	James Hardie — Performing Subsidiary Undertaking and Guarantee Trust Deed

12 December 2006
	 	2






 









 






	 	 	 	 	 

	 
	 	 	 	 
	 	 	L   The Intercreditor Deed sets out certain arrangements in
relation to, among other things, the rights of the Fund Trustee and the NSW
Government in connection with the Compensation Debt and the rights of the
Undertaking and Guarantee Trustee and the Beneficiaries in connection with
this deed which have been agreed between the parties to the Intercreditor
Deed.


	 
	Date of deed

	 	See Signing page






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8351255_10

	 	James Hardie — Performing Subsidiary Undertaking and Guarantee Trust Deed

12 December 2006
	 	3







 












 





James Hardie — Performing Subsidiary
Undertaking and Guarantee Trust Deed


General terms




Part 1 Preliminary





	1	 	Interpretation
	 
	1.1	 	Definitions
	 
	 	 	These meanings apply unless the contrary intention appears:
	 
	 	 	A$, AUD or Australian Dollars means the lawful currency of Australia.
	 
	 	 	Audited Financial Statements has the meaning given to that term in the Intercreditor Deed.
	 
	 	 	Authorised Officer means:






	 	(a)	 	in the case of the Undertaking and Guarantee Trustee or a Beneficiary, a
director or secretary, or an officer 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 nominated by the
Undertaking and Guarantee Trustee or the Beneficiary, as the case may be, as an
Authorised Officer for the purposes of this deed;
	 
	 	(b)	 	in the case of the Performing Subsidiary, a person appointed by the
Performing Subsidiary and notified to the Undertaking and Guarantee Trustee as an
Authorised Officer for the purposes of this deed, and whose specimen signature is
provided with such notification to the Undertaking and Guarantee Trustee.






	 	 	Beneficiary means each person nominated as a “Beneficiary” in a Beneficiary Nomination
Letter (including, in the case of any group of creditors, an agent or trustee acting on
their behalf) and includes their successors and assigns, but excludes any person who has
ceased to be a Beneficiary in accordance with clause 2.4 (“Ceasing to be a Beneficiary”).
	 
	 	 	Beneficiary Change Form means a form sent to the Undertaking and Guarantee Trustee in
accordance with clause 9.1(b).
	 
	 	 	Beneficiary Nomination Letter means a letter substantially in the form set out in schedule
1(A) (“Beneficiary Nomination Letter”), signed by the Performing Subsidiary, accepted by
the relevant Beneficiary and confirmed by the Undertaking and Guarantee Trustee.






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8351255_10

	 	James Hardie — Performing Subsidiary Undertaking and Guarantee Trust Deed

12 December 2006
	 	4





 









 












	 	 	Business Day means a weekday (not being a public holiday) on which:






	 	(a)	 	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;
	 
	 	(b)	 	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 the
relevant Finance Document; and
	 
	 	(c)	 	for all other purposes, banks are open for general banking business in
Amsterdam, Sydney and any other place or places specified in the relevant Finance
Document.






	 	 	Charitable Fund has the meaning given to that term in the Final Funding Agreement.
	 
	 	 	Compensation Debt has the meaning given to the term “Compensation Debt (Performing
Subsidiary)” in the Intercreditor Deed.
	 
	 	 	Controlled Entity means in respect of a Person, another Person in respect of which the
first-mentioned Person is required to consolidate in its Audited Financial Statements but,
in the case of the Performing Subsidiary, does not include any Liable Entity (as defined
in the Final Funding Agreement) or the Fund Trustee. For the avoidance of doubt, the
Performing Subsidiary is not a Controlled Entity of the Performing Subsidiary Group.
	 
	 	 	Costs means costs, fees, disbursements, charges and expenses, including, without
limitation, where the Performing Subsidiary is liable to pay or reimburse the Costs, those
incurred in connection with advisers and, unless such Costs are incurred in connection
with:






	 	(a)	 	consideration of any action or claim (whether or not as part of, or
preparatory to, any enforcement action) relating to a Finance Document, the
Performing Subsidiary or the Guaranteed Money;
	 
	 	(b)	 	any costs or expenses relating to any advice described in clause 3(c);
	 
	 	(c)	 	the costs relating to any court application by the Undertaking and
Guarantee Trustee under clause 5.2; or
	 
	 	(d)	 	the costs of an Independent Expert appointed under clause 8.3 of the
Intercreditor Deed,






	 	 	only for an amount and on a basis previously agreed to in writing by the Performing
Subsidiary.
	 
	 	 	Debtor means, in respect of a Beneficiary at a particular time, the person or persons
primarily liable to the Beneficiary at that time under the Finance Documents.
	 
	 	 	Deed of Accession has the meaning given to that term in the Final Funding Agreement.






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8351255_10

	 	James Hardie — Performing Subsidiary Undertaking and Guarantee Trust Deed

12 December 2006
	 	5




 









 












	 	 	Default Rate means LIBOR plus 2% per annum. For the purpose of this definition, the
interest is calculated as if the overdue amount is a cash advance with interest periods
beginning and ending on the first and last days respectively of each calendar month (and
including both days), provided that the first interest period begins on and includes the
due date.
	 
	 	 	Details means the section of this deed headed “Details”.
	 
	 	 	Discretionary Fund has the meaning given to that term in the Final Funding Agreement.
	 
	 	 	Excluded Lender has the meaning given to that term in the Intercreditor Deed.
	 
	 	 	Excluded Tax means:






	 	(a)	 	a Tax imposed by any jurisdiction on or assessed against a Beneficiary as a
consequence of the Beneficiary 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 this deed or another document referred to in this
deed (without the allowance of a deduction);
	 
	 	(ii)	 	that is imposed as a result of the Beneficiary being
considered a resident or organised or doing business in that jurisdiction
solely as a result of it being a party to this deed or a transaction
contemplated by this deed; or






	 	(b)	 	a Tax which would not be required to be deducted by the Performing
Subsidiary if, before the Performing Subsidiary makes a relevant payment, a relevant
Beneficiary provided the Performing Subsidiary with any of its name, address,
registration number or similar details or any relevant tax exemption or similar
details.






	 	 	Final Funding Agreement means the deed dated 21 November 2006 between the NSW Government,
JHINV, the Performing Subsidiary and the Fund Trustee which amended and restated the
Original Final Funding Agreement.
	 
	 	 	Finance Documents means, in relation to a Beneficiary, each agreement:






	 	(a)	 	to which the Performing Subsidiary and the Beneficiary (together with any
other person) are a party or under which that Beneficiary has benefits or
obligations; and
	 
	 	(b)	 	which is nominated as a “Finance Document” in a Beneficiary Nomination
Letter.






	 	 	Finance Money Debt has the meaning given to the term “Finance Money Debt (Performing
Subsidiary)” in the Intercreditor Deed.






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8351255_10

	 	James Hardie — Performing Subsidiary Undertaking and Guarantee Trust Deed

12 December 2006
	 	6





 









 












	 	 	Fund Trustee means Asbestos Injuries Compensation Fund Limited in its capacity as trustee
of the Charitable Fund.
	 
	 	 	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 Performing
Subsidiary Group Member.
	 
	 	 	Guarantee means the guarantees and indemnities given by the Performing Subsidiary under
clause 11 (“Guarantee and indemnity”).
	 
	 	 	Guaranteed Money means all amounts that:






	 	(a)	 	at any time;
	 
	 	(b)	 	for any reason or circumstance in connection with any agreement,
transaction, instrument (whether or not negotiable), document, event, act, omission,
matter or thing whatsoever;
	 
	 	(c)	 	whether at law or otherwise; and
	 
	 	(d)	 	whether or not of a type within the contemplation of the Performing
Subsidiary or any other person at the date of this deed,






	 	 	are payable, are owing but not currently payable, are contingently owing, or remain
unpaid, by a Debtor to a Beneficiary under or in connection with the Finance Documents.
	 
	 	 	This definition applies:






	 	(i)	 	irrespective of the capacity in which the Debtor or the
Beneficiary became entitled to the amount concerned;
	 
	 	(ii)	 	irrespective of the capacity in which the Debtor or the
Beneficiary became liable in respect of the amount concerned;
	 
	 	(iii)	 	whether the Debtor or the Beneficiary is liable as
principal debtor, as surety or otherwise;
	 
	 	(iv)	 	whether the Debtor is liable alone, or together with
another person;
	 
	 	(v)	 	even if the Debtor owes an amount or obligation to the
Beneficiary because it was assigned to the Beneficiary, whether or not:






	 	(A)	 	the assignment was before, at the same
time as, or after the date of this deed; or
	 
	 	(B)	 	the Debtor consented to or was aware of
the assignment; or
	 
	 	(C)	 	the assigned obligation was secured;






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8351255_10

	 	James Hardie — Performing Subsidiary Undertaking and Guarantee Trust Deed

12 December 2006
	 	7





 









 












	 	(vi)	 	even if this deed was assigned to the Beneficiary,
whether or not:






	 	(A)	 	the Debtor or the Performing Subsidiary
consented to or was aware of the assignment; or
	 
	 	(B)	 	any of the Guaranteed Money was
previously unsecured; or






	 	(vii)	 	if the Performing Subsidiary is a trustee, whether or
not it has a right of indemnity from the trust fund.






	 	 	Heads of Agreement means the non-binding agreement entered into on 21 December 2004
between JHINV, the NSW Government, the Australian Council of Trade Unions, Unions New
South Wales and a representative of certain asbestos victims groups.
	 
	 	 	Independent Valuer means:






	 	(a)	 	any internationally recognised accountancy firm agreed to by the Performing
Subsidiary and the Undertaking and Guarantee Trustee in writing; or
	 
	 	(b)	 	if the Performing Subsidiary and the Undertaking and Guarantee Trustee
cannot agree on an internationally recognised accountancy firm, a person nominated by
the President of the Institute of Chartered Accountants in Australia.






	 	 	Indirect Tax means any goods and services tax, consumption tax, value added tax or any tax
of a similar nature.
	 
	 	 	Insolvency Event means, in respect of a person, the occurrence in respect of that person
of any event referred to in paragraphs (a) to (f) of the definition of “Insolvent” and,
for the avoidance of doubt, includes a Winding Up.
	 
	 	 	Insolvency Official means a custodian, receiver, receiver and manager, trustee,
liquidator, provisional liquidator, administrator or any other officer appointed in
connection with the Insolvency of the Performing Subsidiary.
	 
	 	 	A person is Insolvent if it:






	 	(a)	 	admits in writing its inability to pay its debts as they become due
(otherwise than as contemplated in clause 16.6 of the Final Funding Agreement);
	 
	 	(b)	 	makes an assignment for the benefit of its creditors generally;
	 
	 	(c)	 	consents to the appointment of a custodian (not being a nominee for the
person), receiver, receiver and manager, trustee or other officer with similar powers
with respect to it or with respect to a substantial part of its property;






	 	 	 	 	 

	 
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	 	(d)	 	consents to the appointment of an insolvency administrator or such an
insolvency administrator is appointed and that appointment is not terminated within
28 days;
	 
	 	(e)	 	is adjudicated as insolvent or to be liquidated, in each case, by a court
of competent jurisdiction;
	 
	 	(f)	 	is subject to Winding Up,






	 	 	and Insolvency has a corresponding meaning.
	 
	 	 	Intercreditor Deed means the deed entitled “Performing Subsidiary Intercreditor Deed”
between the NSW Government, Asbestos Injuries Compensation Fund Limited (in its capacity
as trustee of the Charitable Fund), the Performing Subsidiary and the Undertaking and
Guarantee Trustee dated on or about the date of this deed.
	 
	 	 	James Hardie Group means JHINV and its Subsidiaries and James Hardie Group Member means
any of them.
	 
	 	 	JHIL means ABN 60 Pty Limited (ABN 60 000 009 263) (formerly known as James Hardie
Industries Limited).
	 
	 	 	JHINV means James Hardie Industries N.V. (ABN 49 097 829 895).
	 
	 	 	LIBOR means, in relation to any overdue amount:






	 	(a)	 	the applicable British Bankers’ Association Interest Settlement Rate for
the currency in which the overdue amount is payable (“Due Currency”) 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 Beneficiary to whom the
overdue amount is owed may specify another page or service displaying the appropriate
rate after consultation with the Performing Subsidiary) (“Screen Rate”); or
	 
	 	(b)	 	(if no Screen Rate is available for the Due Currency and the interest
period of that overdue amount) the arithmetic mean of the rates (rounded upwards to
four decimal places) as supplied to the Beneficiary to whom the overdue amount is
owed at its request quoted by the principal London offices of at least three leading
international banks chosen by the Beneficiary in consultation with the Performing
Subsidiary to other leading international banks in the London interbank market,






	 	 	as of 11.00 am (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 the Due Currency and for a period comparable to the interest period for the
overdue amount.
	 
	 	 	Liquidation means, in respect of any person, the liquidation of all or substantially all
of its assets (other than, in the case of the Performing Subsidiary, where the acquirer of
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	 	 	deed of accession become bound to observe all the obligations of the Performing Subsidiary
under this deed and the other Related Agreements to which the Performing Subsidiary is a
party) with the intention of distributing the proceeds to creditors or security holders,
or a final order directing or requiring such liquidation is made or entered or deemed to
have been made or entered by any court of competent jurisdiction.






	 	 	Notice of Voting in Insolvency means a written notice from an Insolvency Official of any
matter or matters in connection with the Insolvency (including, without limitation, the
Winding Up) of the Performing Subsidiary and requiring or inviting the casting of votes by
creditors of the Performing Subsidiary in relation to such matter or matters.
	 
	 	 	NSW Government means the State of New South Wales.
	 
	 	 	Original Final Funding Agreement means the legally binding agreement so entitled and
entered into on 1 December 2005 between the JHINV, the Performing Subsidiary and the NSW
Government giving effect to the arrangements contemplated by the Heads of Agreement.
	 
	 	 	Performing Subsidiary means the person so described in the Details.
	 
	 	 	Performing Subsidiary Group means the Performing Subsidiary and its Controlled Entities
and Performing Subsidiary Group Member means any of them.
	 
	 	 	Person includes any general partnership, limited partnership, corporation, limited
liability company, joint venture, trust, business trust, governmental agency,
co-operative, association, individual or other entity, and the heirs, executors,
administrators, legal representatives, successors and assigns of such a Person as the
context may require.
	 
	 	 	Proceeds has the meaning given to that term in the Intercreditor Deed.
	 
	 	 	Proportion means, in respect of a Beneficiary at any time, the Beneficiary’s proportion of
the Finance Money Debt (including all Proceeds) divided by the total of all Finance Money
Debt at that time, expressed as a percentage.
	 
	 	 	Recovered Money means all amounts paid to or recovered by the Undertaking and Guarantee
Trustee in respect of the Finance Money Debt during an Insolvency of the Performing
Subsidiary which has not yet been distributed under clause 18 (“Distribution of Recovered
Money”).
	 
	 	 	Register means the register to be established and maintained by the Undertaking and
Guarantee Trustee under clause 9 (“Register”).
	 
	 	 	Related Agreement has the meaning given to that term in the Final Funding Agreement.
	 
	 	 	Related Entity has the meaning it has in the Corporations Act.
	 
	 	 	Relevant Documents means:






	 	(a)	 	the Final Funding Agreement;






	 	 	 	 	 

	 
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	 	(b)	 	any Related Agreement; and
	 
	 	(c)	 	any Finance Document.






	 	 	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.






	 	 	Security Provider means a person (other than the Performing Subsidiary) who at any time is
liable by guarantee, indemnity or otherwise alone or jointly, or jointly and individually,
to pay or indemnify against non-payment of the Finance Money Debt.
	 
	 	 	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 Beneficiary) 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.
	 
	 	 	Trust means the Performing Subsidiary Undertaking and Guarantee Trust established by
clause 5.1(a) (“Declaration of Trust”) of this deed.
	 
	 	 	Trust Deed has the meaning given to that term in the Final Funding Agreement.
	 
	 	 	Undertaking means the undertaking given by the Performing Subsidiary under clause 10(a)
(“Undertaking”).
	 
	 	 	Undertaking and Guarantee Trustee means the person so described in the Details.
	 
	 	 	US$, USD or US Dollars means the lawful currency of the United States of America.
	 
	 	 	Winding Up means, in respect of a person, the occurrence of any one or more of the
following events in relation to that person:






	 	(a)	 	a final court order is entered that it be wound up or declared bankrupt;






	 	 	 	 	 

	 
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	 	(b)	 	a liquidator (excluding a provisional liquidator) is appointed to it and
the appointment is not subsequently terminated;
	 
	 	(c)	 	a court declaration of bankruptcy is made in relation to it and is not
subsequently withdrawn, struck out or dismissed, vacated or reversed;
	 
	 	(d)	 	the Liquidation of that person; and
	 
	 	(e)	 	any comparable action occurs under the law of any competent jurisdiction
which has a substantially similar effect to any of the above paragraphs (a) to (g) of
this definition,






	 	 	and an order shall be deemed to be final when timely-commenced proceedings for review of
such an order has been concluded without such order being subsequently dismissed,
withdrawn, struck out, vacated or reversed, and the time for commencing any further
proceeding for review of such order has expired.
	 
	1.2	 	References to certain general terms 
	 
	 	 	Unless the contrary intention appears, a reference in this deed to:






	 	(a)	 	a group of persons is a reference to any two or more of them collectively
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 collectively and each of them individually;
	 
	 	(c)	 	an agreement, representation or warranty by two or more persons binds them
collectively and each of them individually but an agreement, representation or
warranty by a Beneficiary binds the Beneficiary 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 deed) includes any variation 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)	 	the word “person” includes an individual, a firm, a body corporate, a
partnership, a joint venture, an unincorporated association and any Government
Agency;






	 	 	 	 	 

	 
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	 	(h)	 	a particular person includes a reference to the person’s executors,
administrators, successors, substitutes (including persons taking by novation) and
assigns;
	 
	 	(i)	 	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; and
	 
	 	(j)	 	the Corporations Act is a reference to the Corporations Act 2001 of
Australia.






	1.3	 	Number
	 
	 	 	The singular includes the plural and vice versa.       
	 
	1.4	 	Headings
	 
	 	 	Headings (including those in brackets at the beginning of paragraphs) are for
convenience only and do not affect the interpretation of this deed.
	 
	1.5	 	Undertaking and Guarantee Trustee’s limitation of liability






	 	(a)	 	A liability arising under or in connection with this deed is limited to and can
be enforced against the Undertaking and Guarantee Trustee only to the extent to which
it can be satisfied out of any property held by the Undertaking and Guarantee Trustee
out of which the Undertaking and Guarantee Trustee is actually indemnified for the
liability. This limitation of the Undertaking and Guarantee Trustee’s liability
applies despite any other provision of this deed and extends to all liabilities and
obligations of the Undertaking and Guarantee Trustee in any way connected with any
representation, warranty, conduct, omission, agreement or transaction related to this
deed.
	 
	 	(b)	 	The parties (other than the Undertaking and Guarantee Trustee) may not sue
the Undertaking and Guarantee Trustee in any capacity other than as trustee of the
Trust, including seeking the appointment of a receiver (except in relation to property
of the Trust), a liquidator, an administrator or any other similar person to the
Undertaking and Guarantee Trustee or prove in any liquidation of or affecting the
Undertaking and Guarantee Trustee (except in relation to the property of the Trust).
	 
	 	(c)	 	The parties waive their rights and release the Undertaking and Guarantee
Trustee from any personal liability in respect of any loss or damage which any of them
may suffer as a consequence of a failure of the Undertaking and Guarantee Trustee to
perform its obligations under this deed, which cannot be paid or satisfied out of any
property of the Trust held by the Undertaking and Guarantee Trustee.
	 
	 	(d)	 	The provisions of this clause 1.5 will not apply to any obligation or
liability of the Undertaking and Guarantee Trustee to the extent to which such
obligation or liability:






	 	 	 	 	 

	 
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	 	(i)	 	arises as a result of the Undertaking and Guarantee
Trustee’s fraud, gross negligence or wilful misconduct; or
	 
	 	(ii)	 	cannot be satisfied out of any property held by the
Undertaking and Guarantee Trustee as a result of the Undertaking and
Guarantee Trustee’s fraud, gross negligence or wilful misconduct.






	 	(e)	 	No act or omission of the Undertaking and Guarantee Trustee (including any
related failure to satisfy its obligations or breach of representation or warranty
under this deed) will be considered fraud, gross negligence or wilful misconduct of
the Undertaking and Guarantee Trustee to the extent to which the act or omission was
caused or contributed to by any failure of any party (other than the Undertaking and
Guarantee Trustee) or any other person to fulfil its obligations relating to the Trust
or by any other act or omission of the parties (other than the Undertaking and
Guarantee Trustee) or any other person having obligations relating to the Undertaking
and Guarantee Trust.
	 
	 	(f)	 	Any fraud, gross negligence or wilful misconduct of an attorney, agent or
delegate appointed by the Undertaking and Guarantee Trustee in accordance with this
deed is not, and is not to be deemed to be, an act on behalf of the Undertaking and
Guarantee Trustee for the purposes of this deed and does not create rights or
obligations on any party to this deed nor expose the Undertaking and Guarantee Trustee
to any personal liability provided that:






	 	(i)	 	nothing in this clause 1.5(f) relieves the Undertaking
and Guarantee Trustee from any liability to the extent of any fraud, gross
negligence or wilful misconduct of the Undertaking and Guarantee Trustee in
the selection, appointment, oversight or supervision of any such attorney,
agent or delegate; and
	 
	 	(ii)	 	the Undertaking and Guarantee Trustee must, to the extent
permitted by law, take all reasonable steps to recover compensation for any
expenses, losses, liabilities, actions, proceedings or claims that are
incurred by the Undertaking and Guarantee Trustee (or would have been
incurred but for the operation of this clause 1.5(f)) as a direct or
indirect consequence of the fraud, gross negligence or wilful misconduct of
any attorney, agent or delegate appointed by the Undertaking and Guarantee
Trustee from any such attorney, agent or delegate..






	1.6	 	Undertaking and Guarantee Trustee’s knowledge
	 
	 	 	The Undertaking and Guarantee Trustee will only be considered to have knowledge or
awareness of, or notice of, any thing, or grounds to believe any thing, by virtue of the
officers of the Undertaking and Guarantee Trustee having day to day responsibility for the
administration of the Undertaking and Guarantee Trustee having actual knowledge, actual
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	 	 	notice of that thing, or grounds or reason to believe that thing (and similar references
will be interpreted in this way).






	1.7	 	Reliance on notices
	 
	 	 	Where any notice is provided by any of the parties (other than the Undertaking and
Guarantee Trustee) to the Undertaking and Guarantee Trustee and the notice has been
executed by an Authorised Officer of that party then the Undertaking and Guarantee Trustee
may assume that the notice has been properly prepared and considered by that party and the
Undertaking and Guarantee Trustee is not required to investigate further.
	 
	1.8	 	Condition precedent
	 
	 	 	Notwithstanding any other provision of this deed, the provisions of, and the
obligations of the parties under, this deed are subject to, and do not commence until,
each of the conditions set out in clause 2.1 of the Final Funding Agreement have been
satisfied or waived in writing by the parties to the Final Funding Agreement.
	 
	2	 	Consideration and benefit
	 
	2.1	 	Deed and deed poll
	 
	 	 	This deed takes effect as both:






	 	(a)	 	a deed between the Performing Subsidiary and the Undertaking and Guarantee
Trustee; and
	 
	 	(b)	 	a deed poll by the Performing Subsidiary and the Undertaking and Guarantee
Trustee in favour of the Beneficiaries.






	2.2	 	Benefit






	 	(a)	 	Each Beneficiary has the benefit of, and is entitled to enforce, this deed in
accordance with its terms even though it is not a party to, or is not in existence at
the time of execution and delivery of, this deed.
	 
	 	(b)	 	Subject to the Intercreditor Deed and clause 2.2(c), the benefit and
obligations of this deed may be extended to any other person (and such person shall
become a Beneficiary) in relation to any other document (and such document shall
become a Finance Document) under which liabilities are owed to such person where such
liabilities are, or required to be, included in the James Hardie Group’s financial
statements or accompanying notes as debt or borrowings (including, without
limitation, bank loans, letter of credit facilities, derivatives and debt capital
markets issues which are, or are required to be so included or noted) of the
Performing Subsidiary (or a Performing Subsidiary Group Member, the performance of
whose obligations has been guaranteed by the Performing Subsidiary) by the Performing
Subsidiary signing and delivering to that person (or an agent or trustee acting on
behalf of that person) and Undertaking and Guarantee Trustee, a Beneficiary
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	 	 	 	or an agent or trustee acting on behalf of that person countersigning such
Beneficiary Nomination Letter and delivering the countersigned Beneficiary
Nomination Letter to the Undertaking and Guarantee Trustee.






	 	(c)	 	An Excluded Lender cannot be a Beneficiary.






	2.3	 	Consideration
	 
	 	 	Each party acknowledges incurring obligations and giving rights under this deed for
valuable consideration received and to be received from, among others, each Beneficiary.
	 
	2.4	 	Ceasing to be a beneficiary






	 	(a)	 	The Performing Subsidiary may request that a Beneficiary sign a consent
confirming its cessation as a beneficiary of the Trust if, at the time of the
Performing Subsidiary’s request:






	 	(i)	 	there is no Guaranteed Money in respect of that
Beneficiary;
	 
	 	(ii)	 	the Performing Subsidiary has no outstanding obligations
to the Beneficiary under this deed; and
	 
	 	(iii)	 	that Beneficiary has no further obligation to provide
financial accommodation to the Debtor under the Finance Documents.






	 	(b)	 	A Beneficiary may at any time notify the Undertaking and Guarantee Trustee
in writing that the Beneficiary wishes to cease to be a beneficiary of the Trust.
Any such notice does not limit the Beneficiary’s rights against the Performing
Subsidiary other than its rights as a beneficiary of the Trust.
	 
	 	(c)	 	The relevant Beneficiary undertakes to do all things necessary to give
effect to the cessation of its being a beneficiary under clause 2.4(a) (if it is
satisfied, acting reasonably, that clauses 2.4(a)(i), 2.4(a)(ii) and 2.4(a)(iii) are
satisfied) or 2.4(b), including, without limitation, the execution of the consent
referred to in clause 2.4(a) and the surrender of its Beneficiary Nomination Letter.
	 
	 	(d)	 	A Beneficiary ceases to be a beneficiary of the Trust and thereupon ceases
to have the benefit of the Undertaking:






	 	(i)	 	under clause 2.4(a), on receipt by the Undertaking and
Guarantee Trustee of a signed consent;
	 
	 	(ii)	 	under clause 2.4(b), on receipt by the Undertaking and
Guarantee Trustee of notice from the Beneficiary.






	 	 	 	Upon receipt of the relevant signed consent or notice, the Undertaking and
Guarantee Trustee must remove the Beneficiary’s name from the Register.






	 	 	 	 	 

	 
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	3	 	Inconsistency and advice






	 	(a)	 	If any provision of the Final Funding Agreement, any Related Agreement
(excluding this deed, the Intercreditor Deed, or the Intercreditor Deed (Performing
Subsidiary)), or any other Finance Document is inconsistent with this deed, this deed
prevails to the extent of the inconsistency.
	 
	 	(b)	 	Each of the parties to this deed undertake to use all reasonable endeavours
to procure that the Relevant Documents which are not executed as at the date of this
deed are executed in a form that minimises the likelihood of any inconsistency.
	 
	 	(c)	 	In the event that the Undertaking and Guarantee Trustee may be required to
exercise any discretion, judgement or issue a notice or determine a matter relating to
this deed or any Relevant Document, the Undertaking and Guarantee Trustee will be
entitled to seek such legal, accounting, tax or other advice as is reasonable in all
the circumstances.






	4	 	Termination
	 
	 	 	Without prejudice to the provisions of clause 8.5, upon the Performing Subsidiary
delivering:






	 	(a)	 	to the Undertaking and Guarantee Trustee:






	 	(i)	 	a written notice stating that the Final Funding Agreement
and its Related Agreements have been terminated; and
	 
	 	(ii)	 	legal opinions from lawyers practising in New South Wales
and each other jurisdiction whose laws govern any such Related Agreement
which collectively confirm that the Final Funding Agreement and its Related
Agreements have ceased to be in full force and effect under their respective
governing laws,






	 	(b)	 	to each Beneficiary:






	 	(i)	 	an original signed counterpart of a replacement
guarantee; and
	 
	 	(ii)	 	legal opinions from lawyers practising in New South Wales
in respect of such replacement guarantee which confirm that such replacement
guarantee constitutes a valid, binding and enforceable obligation of the
Performing Subsidiary (subject to their customary assumptions and
qualifications),






	 	 	this deed is automatically terminated and, with respect to each Beneficiary, replaced by
such replacement guarantee.






	 	 	 	 	 

	 
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James Hardie — Performing Subsidiary
Undertaking and Guarantee Trust Deed




Part 2 Trust and the Undertaking and Guarantee Trustee





	5	 	Trust
	 
	5.1	 	Declaration of trust
	 
	 	 	The Undertaking and Guarantee Trustee:






	 	(a)	 	declares that it holds the benefit of the Undertaking and Guarantee, each
Relevant Document and any other document in connection with the Undertaking and
Guarantee or any Relevant Document which contains provisions in favour of, or for the
benefit of, the Undertaking and Guarantee Trustee or a Beneficiary (including,
without limitation, all representations, warranties and undertakings made in favour
of the Undertaking and Guarantee Trustee or any Beneficiary and any other rights,
claims or entitlements of the Undertaking and Guarantee Trustee or a Beneficiary
under the Undertaking and Guarantee or any Relevant Document) on separate trusts for
each relevant Beneficiary in accordance with, and on the terms of, this deed; and
	 
	 	(b)	 	agrees to comply with the provisions of this deed which purport to bind it
and to perform the duties and responsibilities of the Undertaking and Guarantee
Trustee specified in this deed.






	5.2	 	Duration of trust
	 
	 	 	Each trust created pursuant to clause 5.1 commences on the date of the relevant
Beneficiary Nomination Letter and terminates on the earlier of.






	 	(a)	 	the date the relevant Beneficiary ceases to be a beneficiary in accordance
with clause 2.4;
	 
	 	(b)	 	the date this deed is automatically terminated under clause 4;
	 
	 	(c)	 	the date on which the obligations of the Performing Subsidiary to pay the
Guaranteed Money pursuant to this deed are fully discharged in accordance with this
deed; and
	 
	 	(d)	 	the day before the eightieth anniversary of the date of this deed.






	 	 	The termination of a trust created pursuant to clause 5.1 in accordance with this clause
5.2 does not affect any other trust created pursuant to clause 5.1. Any such other trust
is preserved and continues in existence until terminated in accordance with this clause
5.2.
	 
	 	 	The Undertaking and Guarantee Trustee must use reasonable endeavours prior to the
eightieth anniversary (if applicable) of the date of this deed to resettle the property
then held on trust by the Undertaking and Guarantee Trustee in new trusts for the
Beneficiaries on identical terms to those contained in this deed.






	 	 	 	 	 

	 
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	 	 	In the event that the Undertaking and Guarantee Trustee is unable to resettle the property
of the Trust, then it will be entitled to seek directions from an appropriate court
regarding the settlement of new trusts for the Beneficiaries, as required under this
clause 5.2.
	 
	5.3	 	Trust name
	 
	 	 	The trusts established under clause 5.1(a) shall be collectively known as the
Performing Subsidiary Undertaking and Guarantee Trust.
	 
	6	 	Nature of Guarantee
	 
	6.1	 	Several nature of the Guarantee
	 
	 	 	The benefit of the Guarantee held by the Undertaking and Guarantee Trustee in
accordance with, and on the terms of, this deed is held by the Undertaking and Guarantee
Trustee on trust for the benefit of each Beneficiary severally with respect to the
Guaranteed Money owing to the relevant Beneficiary.
	 
	6.2	 	Claims in Insolvency
	 
	 	 	Each Beneficiary is severally a creditor of the Performing Subsidiary in relation
to the Guaranteed Money owing to the Beneficiary, but its rights under the Guarantee in an
Insolvency of the Performing Subsidiary are subject to the terms of this deed and are to
be exercised by the Undertaking and Guarantee Trustee on its behalf on the terms of this
deed.
	 
	6.3	 	Demands prior to Insolvency
	 
	 	 	Prior to an Insolvency of the Performing Subsidiary, and subject to the terms of
this deed, each Beneficiary individually may make a demand under the Guarantee with
respect to the Guaranteed Money owing to that Beneficiary.
	 
	7	 	Undertaking and Guarantee Trustee
	 
	7.1	 	Appointment
	 
	 	 	The Performing Subsidiary appoints the Undertaking and Guarantee Trustee as the
trustee for each Beneficiary in respect of the Undertaking and Guarantee, each Relevant
Document and any other document in connection with the Undertaking and Guarantee or any
Relevant Document which contains provisions in favour of, or for the benefit of, the
Undertaking and Guarantee Trustee or a Beneficiary (including, without limitation, all
representations, warranties and undertakings made in favour of the Undertaking and
Guarantee Trustee or any Beneficiary and any other rights, claims or entitlements of the
Undertaking and Guarantee Trustee or a Beneficiary under the Undertaking and Guarantee or
any Relevant Document).
	 
	 	 	The Undertaking and Guarantee Trustee accepts that appointment on the terms and conditions
of this deed.






	 	 	 	 	 

	 
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	7.2	 	Remuneration






	 	(a)	 	The Performing Subsidiary must pay the Undertaking and Guarantee Trustee the fee
separately agreed by the Performing Subsidiary and the Undertaking and Guarantee
Trustee (including without limitation fees in relation to the Undertaking and
Guarantee Trustee’s time and attendance on all matters in connection with the
enforcement of Beneficiaries’ rights under this deed, the Trust, and each Relevant
Document, as separately agreed by the Performing Subsidiary and the Undertaking and
Guarantee Trustee).
	 
	 	(b)	 	If the Undertaking and Guarantee Trustee is required at any time to
undertake:






	 	(i)	 	any duties in connection with the enforcement of
Beneficiaries’ rights under this deed, the Trust and each Relevant Document;
or
	 
	 	(ii)	 	any duties which are agreed by the Performing Subsidiary
to be of an exceptional nature or otherwise outside the scope of the normal
duties of the Undertaking and Guarantee Trustee,






	 	 	 	then the Undertaking and Guarantee Trustee is entitled to such additional fees as
may be agreed between the Undertaking and Guarantee Trustee and the Performing
Subsidiary or, failing agreement, such fees as are determined by the Independent
Valuer (acting as an expert and not as an arbitrator). The Independent Valuer’s
determination shall be conclusive and binding on the Performing Subsidiary and
the Undertaking and Guarantee Trustee so far as permitted by law.






	7.3	 	Power
	 
	 	 	In connection with the discharge of its duties and obligations under this deed, the
Undertaking and Guarantee Trustee has all the powers of a natural person, but must
exercise those powers subject to the provisions of this deed.
	 
	7.4	 	Specific responsibilities
	 
	 	 	The Undertaking and Guarantee Trustee agrees:






	 	(a)	 	to notify the Beneficiaries of any change in the Undertaking and Guarantee
Trustee’s principal office and address for notices under this deed;
	 
	 	(b)	 	to maintain the Register in accordance with clause 9 (“Register”);
	 
	 	(c)	 	to diligently perform its obligations under the Intercreditor Deed;
	 
	 	(d)	 	in relation to each matter arising under or in connection with the
Intercreditor Deed which requires the exercise of any right or discretion vested in
the Financiers collectively (as therein defined) or the Undertaking and Guarantee
Trustee (on behalf of the Financiers






	 	 	 	 	 

	 
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	 	 	 	(as therein defined)) (including, without limitation, a request for consent
or the waiver of a right), to:






	 	(i)	 	promptly send to each Beneficiary (at the address last
notified by the Beneficiary) a notice which:






	 	(A)	 	notifies the Beneficiary of the details
of the matter and the legal basis (by reference to the particular
clause of the Intercreditor Deed) for the exercise of a right or
discretion by the Financiers, or the Undertaking and Guarantee
Trustee on their behalf, in relation to the matter; and
	 
	 	(B)	 	requests the Beneficiary to advise in
writing, with such details as the Undertaking and Guarantee Trustee
may request and within [five] Business Days of the date of the
notice (or such shorter period as the Undertaking and Guarantee
Trustee determines is reasonable having regard to all relevant
circumstances):






	 	(aa)	 	the amount of its
participation in the Finance Money Debt at that time; and
	 
	 	(ab)	 	its instructions as
to how the right or discretion should be exercised by the
Undertaking and Guarantee Trustee in relation to the
matter described in the notice; and






	 	(ii)	 	notwithstanding the instructions of any individual
Beneficiary, act in accordance with the instructions of the Beneficiaries
whose aggregate participation in the Finance Money Debt (as advised by those
Beneficiaries) represents more than 50% of the aggregate value of all
Finance Money Debt (as advised by all Beneficiaries), provided that if any
Beneficiary fails to respond to the Undertaking and Guarantee Trustee’s
notice within the time stated therein, the Undertaking and Guarantee Trustee
may, in its discretion if it believes doing so is in the best interests of
the Beneficiaries as a whole (without regard to the particular circumstances
or interests of any individual Beneficiary), act in accordance with the
instructions of the Beneficiaries who do respond within the stated time
(“Responding Beneficiaries”) and whose aggregate participation in the
Finance Money Debt (as advised by those Responding Beneficiaries) represents
more than 50% of the aggregate value of the Finance Money Debt of all
Responding Beneficiaries;






	 	(e)	 	upon receipt of written notice from the Performing Subsidiary or a
Beneficiary of the commencement of any Insolvency of the Performing Subsidiary, to
promptly send to each Beneficiary (at the address last notified by the Beneficiary) a
notice which:






	 	 	 	 	 

	 
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	 	(i)	 	states that the Undertaking and Guarantee Trustee has
been so notified; and
	 
	 	(ii)	 	requests the Beneficiary to advise in writing, with such
details as the Undertaking and Guarantee Trustee may request and within
[five] Business Days of the date of the notice (or such shorter period as
the Undertaking and Guarantee Trustee determines is reasonable having regard
to all relevant circumstances), the amount of its participation in the
Finance Money Debt at that time; and






	 	(f)	 	in any Insolvency of the Performing Subsidiary:






	 	(i)	 	to distribute all Notices of Voting in Insolvency, and to
vote on any matter or matters the subject of a Notice of Voting in
Insolvency, in accordance with clause 17 (“Voting in Insolvency
proceedings”);
	 
	 	(ii)	 	(if required for the purposes of any proceedings relating
to, or in connection with, the Insolvency of the Performing Subsidiary) to
prove separately for all amounts of Finance Money Debt notified by
Beneficiaries in accordance with clause 7.4(e)(ii). For the avoidance of
doubt, each Beneficiary expressly authorises the Undertaking and Guarantee
Trustee to prove for all amounts of Finance Money Debt owing to it in the
name of the Undertaking and Guarantee Trustee, in the name of the
Undertaking and Guarantee Trustee as trustee for that Beneficiary or in the
name of that Beneficiary; and
	 
	 	(iii)	 	to distribute all Recovered Money in accordance with
clause 18 (“Distribution of Recovered Money”).






	7.5	 	No other duties






	 	(a)	 	The Undertaking and Guarantee Trustee has no duties or responsibilities except
those expressly set out in this deed or which the Undertaking and Guarantee Trustee
has otherwise agreed in writing that it will undertake.
	 
	 	(b)	 	Without limiting the generality of clause 7.5(a), the Undertaking and
Guarantee Trustee has no obligation to keep itself informed, or to inform the
Beneficiaries, about:






	 	(i)	 	the performance by any party of its obligations under
this deed or any other agreement; or
	 
	 	(ii)	 	the affairs, financial condition or business of any
person.






	 	(c)	 	Except in the case of manifest error, the Undertaking and Guarantee Trustee
may rely upon any certification, notification or other written advice given to it in
good faith as being conclusive on its face and is






	 	 	 	 	 

	 
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	 	 	 	not obliged to make any inquiries as to the correctness of the contents of that
certificate, notification or advice.






	 	(d)	 	Each Beneficiary expressly authorises the Undertaking and Guarantee Trustee
to act in accordance with the express terms of this deed, notwithstanding that in
doing so the Undertaking and Guarantee Trustee may be in breach of any fiduciary or
other duties owed by it to that Beneficiary.
	 
	 	(e)	 	Each Beneficiary expressly authorises the Undertaking and Guarantee Trustee
to intermingle the Recovered Money prior to any distribution under clause 18 to the
extent permitted by applicable law.
	 
	 	(f)	 	Each Beneficiary expressly waives any right or action it may have in law or
equity against the Undertaking and Guarantee Trustee, arising from any action the
Undertaking and Guarantee Trustee may take in accordance with clause 7.5(d) and
7.5(e).






	7.6	 	Delegation






	 	(a)	 	The Undertaking and Guarantee Trustee may employ agents and attorneys and may
delegate any of its rights or obligations in the capacity as trustee under this deed
without notifying any person of the delegation.
	 
	 	(b)	 	The Undertaking and Guarantee Trustee agrees to exercise reasonable care in
selecting delegates and to supervise their actions.
	 
	 	(c)	 	The Undertaking and Guarantee Trustee is responsible for any loss arising
due to the fraud, gross negligence or wilful misconduct of its delegate or gross or
wilful breach by the delegate of their obligations where that delegate is a Related
Entity to the Undertaking and Guarantee Trustee.
	 
	 	(d)	 	For the avoidance of doubt, in relation to each separate trust created
pursuant to clause 5.1, the Undertaking and Guarantee Trustee may employ the same or
separate agents and attorneys and may delegate any of its rights or obligations in
the capacity as trustee under this deed to the same or separate persons to those
agents, attorneys and delegates employed or appointed for any other trust created
pursuant to clause 5.1.






	7.7	 	Indemnity






	 	(a)	 	The Undertaking and Guarantee Trustee and its officers and agents are entitled
to be continually indemnified out of the Trust in the same proportions specified in
clause 7.7(c) against all expenses, losses, liabilities, actions, proceedings, claims
and demands (whether actual, contingent, prospective or otherwise) that are incurred
as a direct or indirect consequence of the execution of this deed or any Relevant
Document or any act or omission by any person under this deed or any Relevant
Document.
	 
	 	(b)	 	The indemnity in clause 7.7(a):






	 	 	 	 	 

	 
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	 	(i)	 	is separate from any indemnity allowed by law;
	 
	 	(ii)	 	survives the termination of this deed; and
	 
	 	(iii)	 	does not extend to any expenses, losses, liabilities,
actions, proceedings, claims and demands to the extent that they are
attributable to:






	 	(A)	 	a failure by the Undertaking and
Guarantee Trustee to properly perform its duties under this deed,
any Relevant Document or under the Corporations Act 2001; or
	 
	 	(B)	 	fraud, gross negligence or wilful
misconduct on the part of the Undertaking and Guarantee Trustee or
the officer or agent seeking to be indemnified under clause 7.7(a).






	 	(c)	 	Each Beneficiary individually in accordance with its Proportion,
indemnifies the Undertaking and Guarantee Trustee and its officers and agents against
the non-receipt of a payment from the Performing Subsidiary and the Costs incurred by
the Undertaking and Guarantee Trustee or relevant officer or agent in funding the
amount not paid, if the Undertaking and Guarantee Trustee or relevant officer or
agent:






	 	(i)	 	reasonably claims a payment from the Performing
Subsidiary under clause 23.1 (“What the Performing Subsidiary agrees to
pay”); and
	 
	 	(ii)	 	does not receive it within seven days after the claim is
made.






	 	 	 	Each Beneficiary agrees to pay amounts due under this indemnity to the
Undertaking and Guarantee Trustee or relevant officer or agent on demand from the
Undertaking and Guarantee Trustee or relevant officer or agent.
	 
	 	(d)	 	The Performing Subsidiary indemnifies each Beneficiary against any
liability or loss arising from, and any Costs incurred in connection with, the
Beneficiary making a payment under clause 7.7(a). The Performing Subsidiary agrees
to pay amounts due under this indemnity on demand from the Beneficiaries.
	 
	 	(e)	 	Each payment to be made under this clause 7.7 must be made in Australian
dollars.






	7.8	 	Payment by Beneficiaries
	 
	 	 	If the Undertaking and Guarantee Trustee:






	 	(a)	 	proposes to exercise a right arising in its capacity as trustee for the
Beneficiaries under this deed or any Relevant Document or take any other action in
that capacity; or






	 	 	 	 	 

	 
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	 	(b)	 	the Undertaking and Guarantee Trustee is directed to exercise a right or
take any action in its capacity as trustee for the Beneficiaries under this deed or
any Relevant Document,






	 	 	and the Undertaking and Guarantee Trustee reasonably considers this could result in the
Performing Subsidiary becoming obliged to pay an amount to the Undertaking and Guarantee
Trustee under clause 23.1 (“What the Performing Subsidiary agrees to pay”), then the
Undertaking and Guarantee Trustee:






	 	(i)	 	may request the Beneficiaries to pay to the Undertaking and Guarantee Trustee
an amount at least equal to the amount the Undertaking and Guarantee Trustee
reasonably determines would be the Performing Subsidiary’s liability to the
Undertaking and Guarantee Trustee; and
	 
	 	(ii)	 	need not act until the Beneficiaries do so.






	 	 	Each Beneficiary agrees to fund under this clause 7.8 rateably in accordance with its
Proportion.






	7.9	 	Adjustments amongst Beneficiaries






	 	(a)	 	If a Beneficiary (a “Defaulting Beneficiary”) fails to pay any amount (a
“Default Amount”) to the Undertaking and Guarantee Trustee under clause 7.7(a) or 7.8,
any other Beneficiary (a “Funding Beneficiary”) acting alone or together with other
Funding Beneficiaries may pay an amount equal to the Default Amount to the Undertaking
and Guarantee Trustee.
	 
	 	(b)	 	If the Undertaking and Guarantee Trustee receives a payment made in
accordance with clause 7.9(a), it must:






	 	(i)	 	deduct an amount equal to the Default Amount from any
payment it is obliged to make to the Defaulting Beneficiary; and
	 
	 	(ii)	 	pay an amount equal to each Funding Beneficiary’s
contribution to the Default Amount to that Funding Beneficiary.






	8	 	Change of Undertaking and Guarantee Trustee
	 
	8.1	 	Retirement
	 
	 	 	The Undertaking and Guarantee Trustee may retire by giving the Performing
Subsidiary and each Beneficiary at least 90 days’ notice of its intention to do so and
without being required to give any reasons for that retirement.
	 
	8.2	 	Removal
	 
	 	 	If the Undertaking and Guarantee Trustee breaches any material obligation under
this deed and (if the breach is capable of remedy) does not correct the breach within a 30
Days, or if the Undertaking and Guarantee Trustee






	 	 	 	 	 

	 
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	 	 	becomes Insolvent, the Performing Subsidiary may remove the Undertaking and Guarantee
Trustee as trustee under this deed by giving the Undertaking and Guarantee Trustee at
least 45 days’ notice.






	8.3	 	Permitted successors
	 
	 	 	Subject to the Intercreditor Deed, the successor trustee must be a reputable and
experienced professional trustee company, bank or financial institution (or a Related
Entity of any of them) nominated by the Performing Subsidiary.
	 
	8.4	 	When retirement or removal takes effect
	 
	 	 	The retirement or removal of the Undertaking and Guarantee Trustee takes effect
when both of the requirements in paragraphs (a) and (b) have been met or if the
circumstances in paragraph (c) apply:






	 	(a)	 	a successor trustee has been appointed; and
	 
	 	(b)	 	the successor trustee, each other party to this deed and each person having
the benefit of this deed (although not a party to it) have the same rights and
obligations among themselves as they would have had if the successor trustee had been
party to this deed at the date of its execution. The retiring or removed trustee and
the Performing Subsidiary agree to sign documents (including a retirement and
appointment document) and do anything else necessary or appropriate to give effect to
this. Everything the retiring trustee is required to do under this clause is at the
Performing Subsidiary’s expense except that if the Undertaking and Guarantee Trustee
has been removed, it is at its own expense; or
	 
	 	(c)	 	no successor trustee has been appointed or its appointment has not become
effective within 60 days of the end of the relevant retirement or removal notice
period applicable under this clause 8 but the Undertaking and Guarantee Trustee has
the approval of an appropriate court to cease acting as successor trustee under this
deed.






	8.5	 	Discharge of further obligations
	 
	 	 	When a successor trustee is appointed, the retiring or removed trustee is
discharged from any further obligation under this deed. This discharge does not prejudice
any accrued right or obligation.
	 
	8.6	 	Turnover
	 
	 	 	Each Beneficiary agrees for the benefit of the other Beneficiaries that if:






	 	(a)	 	it receives or recovers an amount of Guaranteed Money; and
	 
	 	(b)	 	at the time of receipt or recovery of such amount, the Undertaking and
Guarantee Trustee has retired or been removed and either a successor undertaking and
guarantee trustee has not been appointed or the successor undertaking and guarantee
trustee’s appointment is not effective,






	 	 	 	 	 

	 
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	 	then, to the extent such amount exceeds that Beneficiary’s Proportion of the Guaranteed
Money (the “Turnover Amount”), it:






	 	(i)	 	holds the Turnover Amount on trust for the other
Beneficiaries; and
	 
	 	(ii)	 	agrees to pay the Turnover Amount to the other
Beneficiaries rateably in accordance with their Proportions.






	9	 	Register
	 
	9.1	 	Establishment and maintenance of Register






	 	(a)	 	The Undertaking and Guarantee Trustee must establish and maintain the Register
in accordance with this deed.
	 
	 	(b)	 	Each Beneficiary must give notice to the Undertaking and Guarantee Trustee
within 10 Business Days (or, if JHINV is at that time Insolvent, 2 Business Days) of
the date of any change to any of the details in clause 9.2 below such notice to be
substantially in the form of the Beneficiary Change Notification set out in schedule
1(B).






	9.2	 	Information required in Register
	 
	 	 	The Undertaking and Guarantee Trustee must enter the following information in the
Register:






	 	(a)	 	the name and address of each Beneficiary; and
	 
	 	(b)	 	in relation to each Beneficiary, a list of each Finance Document; and
	 
	 	(c)	 	in respect of each Finance Document, the date, the parties to it and the
name of it; and
	 
	 	(d)	 	the date of each entry in the Register; and
	 
	 	(e)	 	particulars of changes notified to the Undertaking and Guarantee Trustee of
information recorded in the Register; and
	 
	 	(f)	 	any other particulars as the Undertaking and Guarantee Trustee thinks fit.






	9.3	 	No trust
	 
	 	 	No notice of any trust express or implied or constructive is to be entered in the
Register regardless of whether it relates to or arises under this deed or any Relevant
Document.
	 
	9.4	 	Register conclusive
	 
	 	 	The Register is conclusive evidence, in the absence of manifest error, of the
matters recorded in it.






	 	 	 	 	 

	 
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	9.5	 	Update and correction of Register
	 
	 	 	The Undertaking and Guarantee Trustee agrees to:






	 	(a)	 	update the Register when it is notified of any change in any of the details
recorded in respect of a Beneficiary or a Finance Document; and
	 
	 	(b)	 	correct the Register if it becomes aware that any details in the Register
are incorrect or incomplete.






	9.6	 	Inspection of Register
	 
	 	 	The Performing Subsidiary and each Beneficiary may inspect the Register in respect
of information that may be disclosed to it without breach by any party of any duty of
confidentiality or any law, regulation or directive relating to privacy:






	 	(a)	 	on prior reasonable notice to the Undertaking and Guarantee Trustee; and
	 
	 	(b)	 	between 9.30 am and 4.30 pm on any day on which business is generally
carried on in the place where the Register is kept.






	 	 	 	 	 

	 
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James Hardie — Performing Subsidiary
Undertaking and Guarantee Trust Deed




Part 3 Undertaking





	10	 	Undertaking
	 
	 	 	The Performing Subsidiary undertakes:






	 	(a)	 	to pay all amounts payable by it under the Finance Documents and this deed;
and
	 
	 	(b)	 	to comply with all of its obligations under the Finance Documents and this
deed.






	11	 	Guarantee and indemnity






	11.1	 	Guarantee






	 	(a)	 	The Performing Subsidiary unconditionally and irrevocably guarantees in
accordance with, and on the terms of this deed, and for the benefit of each
Beneficiary and the Undertaking and Guarantee Trustee, payment of the Guaranteed
Money.
	 
	 	(b)	 	If the Debtor does not pay the Guaranteed Money on time and in accordance
with the Finance Documents then, subject to clause 11.1(c), the Performing Subsidiary
agrees to pay the Guaranteed Money to:






	 	(i)	 	prior to an Insolvency of the Performing Subsidiary, the
relevant Beneficiary following a demand by that Beneficiary to the
Performing Subsidiary; or
	 
	 	(ii)	 	otherwise, the Undertaking and Guarantee Trustee
following a demand by the relevant Beneficiary, or the Undertaking and
Guarantee Trustee on behalf of that Beneficiary, to the Performing
Subsidiary.






	 	(c)	 	A demand on the Performing Subsidiary under this clause 11.1:






	 	(i)	 	may be made only if the Beneficiary has first made a
demand on the Debtor and the demand is not satisfied within 2 Business Days;
	 
	 	(ii)	 	may be made at any time and from time to time; and
	 
	 	(iii)	 	must be made in writing in accordance with clause 27
(“Notices”).






	11.2	 	Indemnity






	 	(a)	 	The Performing Subsidiary indemnifies in accordance with, and on the terms of
this deed, each Beneficiary and the Undertaking and






	 	 	 	 	 

	 
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	 	 	 	Guarantee Trustee against any liability or loss arising, and any Costs it suffers
or incurs:






	 	(i)	 	if the Debtor does not, or is unable to, pay the
Guaranteed Money in accordance with the Finance Documents; or
	 
	 	(ii)	 	if an obligation the Debtor would otherwise have to pay
the Guaranteed Money (or which would have been Guaranteed Money had it not
been irrecoverable) is found to be unenforceable, void or voidable; or
	 
	 	(iii)	 	if an obligation the Performing Subsidiary would
otherwise have under clause 11.1 (“Guarantee”) is found to be unenforceable;
or
	 
	 	(iv)	 	if the Beneficiary or the Undertaking and Guarantee
Trustee is obliged, or agrees, to pay an amount to a trustee in bankruptcy
or liquidator (of an Insolvent person) in connection with a payment by the
Performing Subsidiary or the Debtor. (For example, the Beneficiary may have
to, or may agree to, pay interest on the amount); or
	 
	 	(v)	 	if the Performing Subsidiary defaults under clause 11.1
(“Guarantee”).






	 	(b)	 	Subject to clause 11.1(c), the Performing Subsidiary agrees to pay amounts
due under this indemnity to:






	 	(i)	 	prior to an Insolvency of the Performing Subsidiary, the
relevant Beneficiary following a demand by that Beneficiary to the
Performing Subsidiary; or
	 
	 	(ii)	 	otherwise, the Undertaking and Guarantee Trustee
following a demand by the relevant Beneficiary, or the Undertaking and
Guarantee Trustee on behalf of that Beneficiary, to the Performing
Subsidiary.






	 	(c)	 	A demand on the Performing Subsidiary under this clause 11.1:






	 	(i)	 	may be made at any time and from time to time; and
	 
	 	(ii)	 	must be made in writing in accordance with clause 27.






	12	 	Interest






	12.1	 	Obligation to pay interest
	 
	 	 	The Performing Subsidiary agrees to pay interest at the Default Rate on:






	 	(a)	 	any part of the Guaranteed Money which is due for payment but which is not
otherwise incurring interest; and





	 	 	 	 	 

	 
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	 	(b)	 	any amount payable by it under this deed (other than under clause 11.1)
which is not paid on the due date for payment.






	 	 	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 Performing Subsidiary agrees to pay interest under this clause on demand from the
Beneficiary.
	 
	12.2	 	Compounding
	 
	 	 	Interest payable under clause 12.1 (“Obligation to pay interest”) which is not paid
when due for payment may be added to the overdue amount by the Beneficiary 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 12.1 (“Obligation to pay interest”).
	 
	12.3	 	Interest following judgment
	 
	 	 	If a liability becomes merged in a judgment, the Performing Subsidiary agrees to
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 Performing Subsidiary agrees to pay interest under this clause on demand from the
Beneficiary.






	13	 	Extent of guarantee and indemnity






	 	(a)	 	The Guarantee is a continuing obligation despite any intervening payment,
settlement or other thing and extends to all of the Guaranteed Money.
	 
	 	(b)	 	Subject to compliance by the Beneficiary with clauses 11.1(c) (“Guarantee”)
and 27 (“Notices”), the Performing Subsidiary waives any right it has of first
requiring the Undertaking and Guarantee Trustee or the Beneficiary to commence
proceedings or enforce any other right against the Debtor or any other person before
claiming from the Performing Subsidiary under the Guarantee.





	 	 	 	 	 

	 
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	14	 	Rights of the Beneficiary are protected
	 
	 	 	Rights given to each Beneficiary under the Guarantee, and the Performing
Subsidiary’s liabilities under it, are not affected by any act or omission of the
Beneficiary or any other person or by any act, other matter or thing whatsoever, whether
negligent or not. For example, those rights and liabilities are not affected by:






	 	(a)	 	any act or omission:






	 	(i)	 	varying or replacing any arrangement under which the
Guaranteed Money is expressed to be owing, such as by increasing a facility
limit or extending the term;
	 
	 	(ii)	 	releasing or discharging the Debtor (including, without
limitation, discharge by operation of law) or giving the Debtor a concession
(such as more time to pay);
	 
	 	(iii)	 	releasing any person who gives a guarantee or indemnity
in connection with any of the Debtor’s obligations;
	 
	 	(iv)	 	releasing, losing the benefit of, or not obtaining any
Security Interest or negotiable instrument;
	 
	 	(v)	 	by which the obligations of any person who guarantees any
of the Debtor’s obligations (including under the Guarantee) may not be
enforceable;
	 
	 	(vi)	 	by which any person who was intended to guarantee any of
the Debtor’s obligations does not do so, or does not do so effectively;
	 
	 	(vii)	 	by which a person who is a co-surety or co-indemnifier
for payment of the Guaranteed Money is discharged under an agreement or by
operation of law;
	 
	 	(viii)	 	by which any Security Interest which could be registered is not
registered,






	 	 	 	or any other thing causing any prejudice (including, but not limited to, material
prejudice) to any person;
	 
	 	(b)	 	a person dealing in any way with a Security Interest, guarantee, indemnity,
judgment or negotiable instrument;
	 
	 	(c)	 	the death, mental or physical disability, incapacity or Insolvency or any
legal limitation of any person including the Performing Subsidiary or the Debtor;
	 
	 	(d)	 	changes in the membership, name or business of any person;
	 
	 	(e)	 	the Debtor opening an account with any Beneficiary;
	 
	 	(f)	 	acquiescence or delay by any Beneficiary or any other person;





	 	 	 	 	 

	 
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	 	(g)	 	an assignment of rights or a novation in connection with the Guaranteed
Money;
	 
	 	(h)	 	the acceptance of the repudiation of, or termination of, any Finance
Document or any other document or agreement;
	 
	 	(i)	 	any payment to a Beneficiary, including any payment which at the payment
date or at any time after the payment date is, in whole or in part, illegal, void,
voidable, avoided or unenforceable.






	 	 	This clause 14 applies regardless of whether the Performing Subsidiary is aware of, has
consented to or is given notice of any act, omission, matter or thing referred to in this
clause 14. This clause 14 does not limit the obligations of the Performing Subsidiary
under this deed.






	15	 	Performing Subsidiary’s rights
	 
	15.1	 	Performing Subsidiary’s rights are suspended
	 
	 	 	As long as there is any Guaranteed Money, the Performing Subsidiary may not,
without the consent of each Beneficiary (or, in the case of a group or syndicate of
Beneficiaries, an agent or trustee on their behalf):






	 	(a)	 	reduce its liability under the Guarantee by claiming that it or the Debtor
or any other person has a right of set-off or counterclaim against the Beneficiary;
or
	 
	 	(b)	 	exercise any legal right to claim to be entitled to the benefit of another
guarantee, indemnity or Security Interest that secures amounts including the
Guaranteed Money or any other amount payable under the Guarantee (for example, the
Performing Subsidiary may not try to enforce or require the enforcement of any
Security Interest the Beneficiary has taken that secures amounts including the
Guaranteed Money); or
	 
	 	(c)	 	claim an amount from the Debtor, or another guarantor of the Guaranteed
Money, under a right of indemnity; or
	 
	 	(d)	 	claim an amount in the Insolvency of the Debtor or of another guarantor of
the Guaranteed Money.






	15.2	 	Performing Subsidiary’s right of proof limited
	 
	 	 	The Performing Subsidiary agrees not to exercise in its capacity as a guarantor
under this deed a right of proof after an event occurs relating to the Insolvency of the
Debtor or another guarantor of the Guaranteed Money independently of an attorney appointed
under clause 16.1 (“Appointment”).





	 	 	 	 	 

	 
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	16	 	Power of Attorney
	 
	16.1	 	Appointment
	 
	 	 	The Performing Subsidiary irrevocably appoints the Undertaking and Guarantee
Trustee and each of its Authorised Officers individually as its attorney and agrees to
formally approve all action taken by an attorney under clause 16.2 (“Powers”).
	 
	16.2	 	Powers
	 
	 	 	Each attorney appointed under clause 16.1 (“Appointment”) may:






	 	(a)	 	do anything which the Performing Subsidiary may lawfully do to exercise its
right of proof after an Insolvency Event occurs in respect of the Debtor or any other
guarantor of the Debtor’s obligations. (These things may be done in the Performing
Subsidiary’s name or the attorney’s name and they include signing and delivering
documents, taking part in legal proceedings and receiving any dividend arising out of
the right of proof); and
	 
	 	(b)	 	delegate its powers (including this power) and revoke a delegation; and
	 
	 	(c)	 	exercise its powers even if this involves a conflict of duty and even if it
has a personal interest in doing so.






	16.3	 	Application of insolvency dividends
	 
	 	 	The attorney need not account to the Performing Subsidiary for any dividend
received on exercising the right of proof under clause 16.2(a) (“Powers”) except to the
extent that any dividend remains after each Beneficiary has received all of the Guaranteed
Money and all other amounts payable under the Finance Documents.





	 	 	 	 	 

	 
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James Hardie — Performing Subsidiary
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Part 4 Voting in Insolvency and Distribution of Recovered Money





	17	 	Voting in Insolvency proceedings
	 
	17.1	 	Obtaining instructions
	 
	 	 	Upon receipt of a Notice of Voting in Insolvency, the Undertaking and Guarantee
Trustee must promptly send to each Beneficiary (at the address last notified by the
Beneficiary) a notice which:






	 	(a)	 	encloses a copy of the Notice of Voting in Insolvency;
	 
	 	(b)	 	requests the Beneficiary to advise in writing, within five Business Days of
the date of the notice (or such shorter period as the Undertaking and Guarantee
Trustee determines is reasonable having regard to the terms of the Notice of Voting
in Insolvency):






	 	(i)	 	its instructions as to how the Undertaking and Guarantee
Trustee should vote on its behalf on each of the matters to be voted upon as
described in the Notice of Voting in Insolvency;
	 
	 	(ii)	 	any other information reasonably requested by the
Undertaking and Guarantee Trustee to enable it to vote on behalf of the
Beneficiary in accordance with the Notice of Voting in Insolvency; and
	 
	 	(iii)	 	its instructions as to how the Undertaking and Guarantee
Trustee should vote in respect of the Compensation Debt on each of the
matters to be voted upon as described in the Notice of Voting in Insolvency.






	17.2	 	Voting
	 
	 	 	The Undertaking and Guarantee Trustee will vote on any matter or matters the
subject of a Notice of Voting in Insolvency:






	 	(a)	 	on behalf of each Beneficiary (in respect of that Beneficiary’s
participation in the Finance Money Debt) which instructs the Undertaking and
Guarantee Trustee in accordance with clause 17.1 (“Obtaining instructions”) — in
accordance with those instructions; and
	 
	 	(b)	 	in respect of the Compensation Debt:






	 	(i)	 	if the Undertaking and Guarantee Trustee is required by
the Intercreditor Deed to vote the Compensation Debt in the manner nominated
by the NSW Government — in the manner so nominated;





	 	 	 	 	 

	 
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	 	(ii)	 	if the Undertaking and Guarantee Trustee is not required
by the Intercreditor Deed to vote the Compensation Debt in the manner
nominated by the NSW Government — in accordance with the instructions
(advised in accordance with clause 17.1(b)(iii) (“Obtaining instructions”))
of the Beneficiaries whose aggregate participation in the Finance Money Debt
(as advised by those Beneficiaries) represents more than 50% of the
aggregate value of all Finance Money Debt (as advised by all Beneficiaries),
provided that if any Beneficiary fails to respond to the Undertaking and
Guarantee Trustee’s notice within the time stated therein, the Undertaking
and Guarantee Trustee may, in its discretion if it believes doing so is in
the best interests of the Beneficiaries as a whole (without regard to the
particular circumstances or interests of any individual Beneficiary), act in
accordance with the instructions of the Beneficiaries who do respond within
the stated time (“Responding Beneficiaries”) and whose aggregate
participation in the Finance Money Debt (as advised by those Responding
Beneficiaries) represents more than 50% of the aggregate value of the
Finance Money Debt of all Responding Beneficiaries.






	 	 	For the avoidance of doubt, in relation to each separate trust created pursuant to clause
5.1, the Undertaking and Guarantee Trustee may employ or appoint the same or separate
proxies, representatives, agents or attorneys to vote on any matter or matters the subject
of a Notice of Voting in Insolvency to those proxies, representatives, agents or attorneys
employed or appointed for any other trust created pursuant to clause 5.1.






	18	 	Distribution of Recovered Money






	18.1	 	How the Undertaking and Guarantee Trustee is to distribute
	 
	 	 	The Undertaking and Guarantee Trustee agrees to distribute all Recovered Money as
follows:






	 	(a)	 	first, to itself for its Costs (including but not limited to costs in
connection with enforcement under the Intercreditor Deed) and other amounts due to it
in its capacity as trustee of the Trust; and
	 
	 	(b)	 	secondly, to the extent of any balance after payment of amounts due to the
Undertaking and Guarantee Trustee under clause 18.1(a), to the Beneficiaries to
satisfy the Finance Money Debt, so that each Beneficiary receives its Proportion of
the Recovered Money;
	 
	 	(c)	 	thirdly, to the extent of any balance after repayment of the Finance Money
Debt, to the Charitable Fund (or otherwise for the benefit of the Charitable Fund or
the beneficiaries of the Charitable Fund) to satisfy the Compensation Debt; and





	 	 	 	 	 

	 
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	 	(d)	 	fourthly, to the extent of any balance after repayment of the Compensation Debt,
to the Performing Subsidiary (for its own account).






	 	 	To the extent Recovered Money has been received by the Undertaking and Guarantee Trustee
after an Insolvency of the Performing Subsidiary, which Insolvency has led to a partial
payment of the Finance Money Debt or Compensation Debt, the Finance Money Debt referred to
in paragraph (b) above shall be calculated taking into account only that part of the
Finance Money Debt which has been irrevocably admitted in the Insolvency.
	 
	18.2	 	Manner of distribution
	 
	 	 	The Undertaking and Guarantee Trustee agrees to distribute amounts to each
Beneficiary promptly after receipt in immediately available funds, to an account nominated
in writing by the Beneficiary.
	 
	18.3	 	Receipt by Beneficiary not through Undertaking and Guarantee Trustee
	 
	 	 	Each Beneficiary agrees to notify the Undertaking and Guarantee Trustee (after the
date of the notice issued by the Undertaking and Guarantee Trustee under clause 7.4(e) of
this deed) promptly of its receipt from the Performing Subsidiary (other than by payment
through the Undertaking and Guarantee Trustee) of any amount of Finance Money Debt on or
after the commencement of an Insolvency of the Performing Subsidiary (including, without
limitation, a recovery by set-off (including under clause 28.4 (“Set-off”) of this deed)
or banker’s lien). The parties acknowledge that a receipt by way of set-off occurs at the
time the Beneficiary applies the set-off in its books of account, irrespective of the time
when the amount set off was deposited with that party.
	 
	18.4	 	Accounting to Undertaking and Guarantee Trustee
	 
	 	 	If a receipt referred to in clause 18.3 (“Receipt by Beneficiary not through
Undertaking and Guarantee Trustee”) represents an amount which, had it been received by
the Undertaking and Guarantee Trustee, would have been distributable not only to the
Beneficiary who receives it but also to the other Beneficiaries, then the Beneficiary
agrees to pay to the Undertaking and Guarantee Trustee promptly following receipt of the
notice issued by the Undertaking and Guarantee Trustee under clause 7.4(e) of this deed an
amount equivalent to the amount received within two Business Days of receiving it. The
amount paid to the Undertaking and Guarantee Trustee is to be:






	 	(a)	 	taken to have been received by the Undertaking and Guarantee Trustee and
not by the Beneficiary who receives it (and the participation of that Beneficiary in
the Finance Money Debt is taken not to have been reduced by that amount); and
	 
	 	(b)	 	distributed by the Undertaking and Guarantee Trustee to the parties
entitled to it in accordance with clause 18.1 (“How the Undertaking and Guarantee
Trustee is to distribute”).





	 	 	 	 	 

	 
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	18.5	 	Refund to Beneficiary
	 
	 	 	If a Beneficiary who receives a payment referred to in clause 18.3 (“Receipt by
Beneficiary not through Undertaking and Guarantee Trustee”) is obliged to refund any part
of it under laws relating to insolvency then, on request from the Beneficiary, each party
to which any part of the payment was distributed must repay to the Beneficiary the
proportion of the amount received by that party equal to the proportion of the payment
received by the Beneficiary which the Beneficiary is obliged to refund.
	 
	18.6	 	Deemed Payment
	 
	 	 	An amount paid under clause 18.5 (“Refund to Beneficiary”) will be deemed to have
been a payment for the account of the Undertaking and Guarantee Trustee and not to the
relevant Beneficiary for its own account and to that extent the liability to the relevant
Beneficiary will not be reduced by the amount received, other than to the extent of any
distribution received by the relevant Beneficiary under clause 18.4(b).





	 	 	 	 	 

	 
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James Hardie — Performing Subsidiary
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Part 5 General provisions





	19	 	Payments






	19.1	 	Manner of payment by the Performing Subsidiary
	 
	 	 	The Performing Subsidiary agrees to make payments under the Finance Documents:






	 	(a)	 	in full without set-off or counterclaim and without any deduction in
respect of Taxes unless prohibited by law;
	 
	 	(b)	 	if the payment relates to the Guaranteed Money, in the currency in which
the payment is due, and otherwise in US Dollars in immediately available funds; and
	 
	 	(c)	 	to the Undertaking and Guarantee Trustee by payment into the account
nominated by the Undertaking and Guarantee Trustee, or by payment as the Undertaking
and Guarantee Trustee otherwise directs.






	 	 	If the Undertaking and Guarantee Trustee directs the Performing Subsidiary to pay a
particular person or in a particular manner, the Performing Subsidiary is taken to have
satisfied its obligation to the Undertaking and Guarantee Trustee by paying in accordance
with the direction.
	 
	19.2	 	Direction to pay
	 
	 	 	The Undertaking and Guarantee Trustee directs that until the Performing Subsidiary
becomes Insolvent or would become Insolvent by paying the Compensation Debt (whichever
occurs first), the Performing Subsidiary make all payments due under the Finance Documents
to the Beneficiary entitled to such payments.
	 
	19.3	 	Currency of payment
	 
	 	 	The Performing Subsidiary waives any right it has in any jurisdiction to pay an
amount other than in the currency in which it is due. However, if the Beneficiary
receives an amount in a currency other than that in which it is due:






	 	(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 Performing Subsidiary 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.





	 	 	 	 	 

	 
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	20	 	Application of payments






	20.1	 	Application of money
	 
	 	 	Subject to the Finance Documents, each Beneficiary may apply money paid by the
Debtor, the Debtor’s estate, the Performing Subsidiary or otherwise towards satisfaction
of the Guaranteed Money and other money payable under this deed in the manner it sees fit.
	 
	20.2	 	Order of payment
	 
	 	 	Subject to the Finance Documents, each Beneficiary may use money received under
this deed towards paying any part of the Guaranteed Money the Beneficiary chooses. This
applies even if that part only falls due after the Beneficiary gives a notice of demand.
	 
	20.3	 	Suspense account
	 
	 	 	Subject to the Finance Documents, each Beneficiary may place in an
interest bearing suspense account any payment it receives towards satisfaction of the
Guaranteed Money (and any net interest on that payment after tax) for as long as it thinks
prudent and need not apply the payment or net interest towards satisfying the Guaranteed
Money or other money payable under this deed.
	 
	20.4	 	Remaining money
	 
	 	 	Each Beneficiary agrees to pay any money remaining after the Guaranteed Money is
paid either to the Performing Subsidiary (which the Beneficiary may do by paying it into
an account in the Performing Subsidiary’s name) or to another person entitled to it. In
doing so, it does not incur any liability to the Performing Subsidiary. The Beneficiary
is not required to pay the Performing Subsidiary interest on any money remaining after the
Guaranteed Money is paid.
	 
	20.5	 	Credit from date of receipt
	 
	 	 	The Performing Subsidiary is only credited with money from the date the Beneficiary
actually receives it.






	21	 	Withholding tax






	21.1	 	Payments by the Performing Subsidiary
	 
	 	 	If a law requires the Performing Subsidiary to deduct or withhold an amount in
respect of Taxes (other than Indirect Taxes) in respect of a payment under this deed such
that a Beneficiary (“Indemnified Party”) would not actually receive on the due date the
full amount provided for under this deed, then:






	 	(a)	 	the Performing Subsidiary agrees to deduct the amount for such Taxes and
any further deduction applicable to any further payment due under paragraph (c)
below; and





	 	 	 	 	 

	 
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	 	(b)	 	the Performing Subsidiary 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 paragraph (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.






	21.2	 	Tax credit
	 
	 	 	If and to the extent that any Beneficiary 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 the Performing Subsidiary to pay any additional amount pursuant to clause
21.1 (“Payments by the Performing Subsidiary”), that Beneficiary shall:






	 	(a)	 	give notice thereof to the Performing Subsidiary 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 Performing Subsidiary such amount of the credit, rebate or benefit as that
Beneficiary shall, in its opinion (acting reasonably), have determined to be
attributable to the deduction or withholding. In complying with this clause, no
Beneficiary need disclose to the Performing Subsidiary information about their tax
affairs or order them in a particular way.






	22	 	Indirect Taxes






	 	(a)	 	All payments to be made by the Performing Subsidiary under or in connection
with this deed 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 Performing Subsidiary makes the payment:






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






	 	(b)	 	Where this deed requires the Performing Subsidiary to reimburse a
Beneficiary for any Costs or expenses, the Performing Subsidiary shall also at the
same time pay and indemnify that Beneficiary against all Indirect Tax incurred by
that Beneficiary in respect of the Costs or expenses save to the extent that that
Beneficiary is entitled to






	 	 	 	 	 

	 
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	 	 	 	repayment or credit in respect of the Indirect Tax. The Beneficiary will
promptly provide to the Performing Subsidiary a tax invoice complying with the
relevant law relating to that Indirect Tax.






	23	 	Costs






	23.1	 	What the Performing Subsidiary agrees to pay
	 
	 	 	The Performing Subsidiary agrees to pay or reimburse the Undertaking and Guarantee
Trustee and each Beneficiary on demand for:






	 	(a)	 	its reasonable Costs in connection with:






	 	(i)	 	the registration of, and payment of Taxes on, this deed;
	 
	 	(ii)	 	giving and considering consents, waivers and releases
requested by the Performing Subsidiary in connection with this deed; and
	 
	 	(iii)	 	any expenditure incurred in accordance with clause 3(c);






	 	(b)	 	its Costs in exercising, enforcing or preserving rights against the
Performing Subsidiary under this deed; and
	 
	 	(c)	 	Taxes and fees (including registration fees) and fines and penalties in
respect of fees paid, or that the Undertaking and Guarantee Trustee or the
Beneficiary reasonably believes are payable, in connection with this deed or a
payment or receipt or any other transaction involving the Performing Subsidiary
contemplated by this deed. However, the Performing Subsidiary need not pay a fine or
penalty in connection with Taxes or fees to the extent that it has placed the
Undertaking and Guarantee Trustee or the Beneficiary in sufficient cleared funds for
the Undertaking and Guarantee Trustee or Beneficiary (as the case may be) to be able
to pay the Taxes or fees by the due date.






	23.2	 	Currency conversion on judgment debt
	 
	 	 	If a judgment, order or proof of debt for an amount payable by the Performing
Subsidiary under this deed is expressed in a currency other than the currency in which the
amount is due under this deed, then the Performing Subsidiary indemnifies the Beneficiary
against:






	 	(a)	 	any difference arising from converting the other currency if the rate of
exchange used by the Beneficiary under clause 19.3 (“Currency of payment”) for
converting currency when it receives a payment in the other currency is less
favourable to the Beneficiary 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.





	 	 	 	 	 

	 
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	24	 	Reinstatement of rights
	 
	 	 	Under law relating to Insolvency Events, a person may claim that a transaction
(including a payment) in connection with the Finance Documents or the Finance Money Debt
is void or voidable. If a claim is made and upheld, conceded or compromised, then to the
extent to which the claim concerns a transaction in connection with the Finance Documents:






	 	(a)	 	the Beneficiary is immediately entitled as against the Performing
Subsidiary to the rights in respect of the amounts payable under the Finance
Documents to which it was entitled immediately before the transaction; and
	 
	 	(b)	 	on request from the Beneficiary, the Performing Subsidiary agrees to do
anything (including signing any document) reasonably required to restore to the
Beneficiary any Security Interest held by it from the Performing Subsidiary
immediately before the transaction.






	 	 	This clause applies whether or not the Beneficiary knew, or ought to have known, that the
transaction would be void or voidable.






	25	 	No merger
	 
	 	 	This deed does not merge with or adversely affect, and is not adversely affected by
any of the following:






	 	(a)	 	any Security Interest, guarantee or other right or remedy to which a
Beneficiary is entitled; or
	 
	 	(b)	 	a judgment which a Beneficiary obtains against the Performing Subsidiary,
the Debtor or any other person in connection with the Guaranteed Money.






	 	 	The Beneficiary may still exercise its rights under this deed as well as under the
judgment, Security Interest or right or remedy.
	 
	26	 	Dealings






	26.1	 	Dealings by the Performing Subsidiary with the Compensation Debt
	 
	 	 	Without the consent of each Beneficiary (or, in the case of a group or syndicate of
Beneficiaries, an agent or trustee on their behalf), the Performing Subsidiary may not:






	 	(a)	 	vary, amend or replace the Final Funding Agreement, or enter into an
agreement having that effect;
	 
	 	(b)	 	during the Insolvency of the Performing Subsidiary, exercise any right of
set-off in respect of the Compensation Debt (except as contemplated by clauses 4.3
and 6.2 of the Intercreditor Deed);





	 	 	 	 	 

	 
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	 	(c)	 	create or allow to exist any Security Interest or guarantee, indemnity or
assurance against financial loss in respect of the Compensation Debt in accordance
with the Final Funding Agreement; or
	 
	 	(d)	 	enter into any arrangement, take any action or fail to do any thing, which
results in the Compensation Debt not being subordinated to the Finance Money Debt in
accordance with the terms of the Intercreditor Deed,






	 	 	provided that such consent is not to be unreasonably withheld if such action is not
adverse in any material respect to the interests of the Beneficiaries under the
Intercreditor Deed.






	26.2	 	Dealings by the Performing Subsidiary
	 
	 	 	The Performing Subsidiary may not assign or otherwise deal with its rights under
this deed or allow any interest in it to arise or be varied, without the consent of each
Beneficiary (or, in the case of a group or syndicate of Finance Beneficiaries, an agent or
trustee on their behalf).
	 
	26.3	 	Dealings by Beneficiaries
	 
	 	 	Subject to the Finance Documents, a Beneficiary may assign or otherwise deal with
its rights under this deed in any way it considers appropriate. If a Beneficiary does
this, the Performing Subsidiary may not claim against any assignee (or any other person
who has an interest in this deed) any right of set-off or other rights it has against the
Beneficiary.






	27	 	Notices






	27.1	 	Form
	 
	 	 	Unless expressly stated otherwise in this deed, all demands, notices, certificates,
consents, approvals, waivers and other communications in connection with this deed
(“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 or, if the recipient has notified
otherwise, then marked for attention in the way last notified.
	 
	27.2	 	Demand under Guarantee
	 
	 	 	Any demand made by a Beneficiary under the Guarantee must comply with the following
requirements (in addition to those contained in clause 27.1 (“Form”)):






	 	(a)	 	clearly identify the Finance Document under which the Guaranteed Money is
payable by the Debtor;
	 
	 	(b)	 	state the amount of the Guaranteed Money demanded and describe in
reasonably adequate detail the nature of the unpaid obligation; and
	 
	 	(c)	 	state the date on which demand was made on the Debtor and certify that the
Guaranteed Money remains unpaid at the date of the demand.





	 	 	 	 	 

	 
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	27.3	 	Delivery
	 
	 	 	Notices must be:






	 	(a)	 	delivered to the address set out or referred to in the Details (or, in the
case of a Beneficiary, the address identified in the Register); or
	 
	 	(b)	 	sent by prepaid post (airmail if appropriate) to the address set out or
referred to in the Details (or, in the case of a Beneficiary, the address identified
in the Register); or
	 
	 	(c)	 	sent by fax to the fax number set out or referred to in the Details (or, in
the case of a Beneficiary, the address identified in the Register).






	 	 	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.
	 
	27.4	 	When effective
	 
	 	 	Notices take effect from the time they are received unless a later time is
specified in them.
	 
	27.5	 	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).
	 
	27.6	 	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.






	28	 	General






	28.1	 	Consents
	 
	 	 	The Performing Subsidiary agrees to comply with all conditions in any consents
given in connection with this deed if the Performing Subsidiary relies on that consent in
performing its obligations under this deed.
	 
	28.2	 	Prompt performance
	 
	 	 	If this deed specifies when the Performing Subsidiary agrees to perform an
obligation, it agrees to perform it by the time specified. the Performing Subsidiary
agrees to perform all other obligations promptly.
	 
	28.3	 	Certificates
	 
	 	 	A Beneficiary may give the Undertaking and Guarantee Trustee or the Performing
Subsidiary a certificate about an amount payable or other matter in connection with this
deed or a Finance Document. The certificate is






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8351255_10
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	 	 	sufficient evidence of the amount or matter, unless it is proved to be incorrect.
	 
	28.4	 	Set-off
	 
	 	 	A Beneficiary may set off any amount due for payment by the Beneficiary to the
Performing Subsidiary against any amount due for payment by the Performing Subsidiary to
the Beneficiary under this deed. This does not restrict any right of insolvency set-off
which may arise under Dutch law.
	 
	28.5	 	Discretion in exercising rights 
	 
	 	 	A Beneficiary may exercise a right or remedy or give or refuse its consent in any
way it considers appropriate (including by imposing conditions), unless this deed
expressly states otherwise.
	 
	28.6	 	Partial exercising of rights 
	 
	 	 	If a Beneficiary does not exercise a right or remedy fully or at a given time, the
Beneficiary may still exercise it later.
	 
	28.7	 	Indemnities
	 
	 	 	The indemnities in this deed are continuing obligations, independent of the
Performing Subsidiary’s other obligations under this deed and continue after this deed
ends. It is not necessary for a Beneficiary to incur expense or make payment before
enforcing a right of indemnity under this deed.
	 
	28.8	 	Inconsistent law
	 
	 	 	To the extent permitted by law, this deed prevails to the extent it is inconsistent
with any law.
	 
	28.9	 	Supervening legislation
	 
	 	 	Any present or future legislation which operates to vary the obligations of the
Performing Subsidiary in connection with this deed with the result that the Beneficiaries’
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.
	 
	28.10	 	Remedies cumulative 
	 
	 	 	The rights and remedies of each Beneficiary under this deed are in addition to
other rights and remedies given by law independently of this deed.
	 
	28.11	 	Time of the essence
	 
	 	 	Time is of the essence in this agreement in respect of an obligation of the
Performing Subsidiary to pay money.





	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8351255_10
	 	James Hardie — Performing Subsidiary Undertaking and Guarantee Trust Deed

12 December 2006
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	28.12	 	Variation and waiver
	 
	 	 	Unless this deed expressly states otherwise, a provision of this deed, or right
created under it, may not be waived or varied except in writing signed by the party or
parties to be bound and with the prior written consent of each Beneficiary (or, in the
case of a group or syndicate of Beneficiaries, an agent or trustee on their behalf).
	 
	28.13	 	Confidentiality
	 
	 	 	No party to this deed, nor any Beneficiary, may disclose information provided by
any party or Beneficiary that is not publicly available (including the existence of or
contents of this deed or any Finance Document) except:






	 	(a)	 	to any person in connection with an exercise of rights or (subject to
compliance with clause 26 (“Dealings”)) a dealing with rights or obligations under
this deed (including when a Beneficiary consults other Beneficiaries 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 Beneficiary
in connection with a Finance Document); or
	 
	 	(b)	 	to officers, employees, legal and other advisers and auditors of any party
to this deed or any Beneficiary, provided the recipient agrees to act consistently
with this clause 28.13; or
	 
	 	(c)	 	to any party to a Finance Document or any Related Entity of any party to a
Finance Document, provided the recipient agrees to act consistently with this clause
28.13; or
	 
	 	(d)	 	with the consent of the party who provided the information (such consent
not to be unreasonably withheld); or
	 
	 	(e)	 	as required by any law or stock exchange or any Government Agency.






	 	 	Each party to this deed and each Beneficiary is taken to consent to disclosures made in
accordance with this clause 28.13.
	 
	28.14	 	Further steps
	 
	 	 	The Performing Subsidiary and each Beneficiary agrees to do anything reasonably
required by the Undertaking and Guarantee Trustee (such as obtaining consents, signing and
producing documents, producing receipts and getting documents completed and signed):






	 	(a)	 	to enable the Undertaking and Guarantee Trustee to perform its duties under
this deed;
	 
	 	(b)	 	to enable the Beneficiaries or the Undertaking and Guarantee Trustee to
exercise their rights in connection with this deed; and
	 
	 	(c)	 	(in the case of the Performing Subsidiary) to show whether it is complying
with this deed.





	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8351255_10
	 	James Hardie — Performing Subsidiary Undertaking and Guarantee Trust Deed

12 December 2006
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	28.15	 	Counterparts
	 
	 	 	This deed may consist of a number of copies, each signed by one or more parties to
the deed. If so, the signed copies are treated as making up the one document.
	 
	28.16	 	Governing law
	 
	 	 	This deed is governed by the law in force in New South Wales. Each of the
Undertaking and Guarantee Trustee, the Performing Subsidiary and the Beneficiaries submit
to the non-exclusive jurisdiction of the courts of New South Wales.
	 
	28.17	 	Serving documents
	 
	 	 	Without preventing any other method of service, any document in a court action may
be served on a party by being delivered or left at that party’s address for service of
notices under clause 27.3 (“Delivery”).





EXECUTED as a deed



 
	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8351255_10
	 	James Hardie — Performing Subsidiary Undertaking and Guarantee Trust Deed

12 December 2006
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James Hardie — Performing Subsidiary
Undertaking and Guarantee Trust Deed




Schedule 1(A) — Form of Beneficiary Nomination Letter (clause 2)




[Date]




To: [Beneficiary]



James Hardie — Performing Subsidiary Undertaking and Guarantee Trust Deed — Beneficiary Nomination Letter



We refer to the James Hardie — Performing Subsidiary Undertaking and Guarantee Trust Deed
between James Hardie 117 Pty Limited and AET Structured Finance Services Pty Limited (as
Undertaking and Guarantee Trustee) dated [          ] 2006 (“Performing Subsidiary Undertaking
and Guarantee Trust Deed”).



For the purposes of the Performing Subsidiary Undertaking and Guarantee Trust Deed, on and from the
date of this letter:





	1.	 	we nominate the following document as a Finance Document:





	 	 	 	 	 	 	 

	 

	 	 Name:
	 	[ ]
	 	 
	 

	 	 Date:
	 	[ ]	 	 
	 

	 	 Parties:
	 	[ ]	 	 







	2.	 	the agreement described above, and each document named or referred to as a [“Financing
Document”] in that agreement, is a Finance Document for the purposes of the Performing
Subsidiary Undertaking and Guarantee Trust Deed; and
	 
	3.	 	we nominate you as a “Beneficiary” in relation to that Finance Document.




Please confirm your acceptance of the above nomination, and the benefit and obligations of the
Performing Subsidiary Undertaking and Guarantee Trust Deed, by signing and returning the attached
copy of this letter.



Clauses 1 (“Interpretation”) and 28.16 (“Governing law”) of the Performing Subsidiary Undertaking
and Guarantee Trust Deed apply to this letter as they were fully set out in this letter.




For and on behalf of

James Hardie 117 Pty Limited.




by its Authorised Officer:

Name:

Title:





 
	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8351255_10
	 	James Hardie — Performing Subsidiary Undertaking and Guarantee Trust Deed

12 December 2006
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We accept and agree to the above nomination. We accept the benefit and obligations of the
Performing Subsidiary Undertaking and Guarantee Trust Deed, and we agree to be bound by the terms
of that deed.




For and on behalf of

[Insert name of Beneficiary]




by its Authorised Officer

Name:

Title:



The Undertaking and Guarantee Trustee confirms that it holds the benefit of this nomination and the
other documents described in clause 5.1(a) of the Performing Subsidiary Undertaking and Guarantee
Trust Deed on trust for the Beneficiary in accordance with the terms of the Performing Subsidiary
Undertaking and Guarantee Trust Deed.



For and on behalf of

AET STRUCTURED FINANCE SERVICES PTY LIMITED

as Undertaking and Guarantee Trustee




by its Authorised Officer

Name:

Title:



 
	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8351255_10
	 	James Hardie — Performing Subsidiary Undertaking and Guarantee Trust Deed

12 December 2006
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James Hardie — Performing Subsidiary
Undertaking and Guarantee Trust Deed



Schedule 1(B) — Form of Beneficiary Change Notification (clause 9.1(b))




[Date]




To: [Undertaking and Guarantee Trustee]



James Hardie — Performing Subsidiary Undertaking Trust Deed — Beneficiary Nomination Letter



We refer to the James Hardie — Performing Subsidiary Undertaking and Guarantee Trust Deed between
James Hardie 117 Pty Limited and AET Structured Finance Services Pty Limited (as Undertaking and
Guarantee Trustee) dated [          ] 2006 (“Performing Subsidiary Undertaking and Guarantee
Trust Deed”).



For the purposes of clause 9.1(b) of the Performing Subsidiary Undertaking and Guarantee Trust
Deed, we notify you that:



[insert amended details for the purposes of clause 8.2].



Clauses 1 (“Interpretation”) and 28.16 (“Governing law”) of the Performing Subsidiary Undertaking
and Guarantee Trust Deed apply to this letter as they were fully set out in this letter.




For and on behalf of

[Insert name of Beneficiary]




by its Authorised Officer

Name:

Title:




 
	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8351255_10
	 	James Hardie — Performing Subsidiary Undertaking and Guarantee Trust Deed

12 December 2006
	 	51




 









 








James Hardie — Performing Subsidiary
Undertaking and Guarantee Trust Deed



Signing page




DATED: 19 December 2006




	 	 	 	 	 	 	 	 	 

	Executed by JAMES HARDIE 117

	 	 	)	 	 	 	 	 
	PTY LIMITED by authority of its

	 	 	)	 	 	 	 	 
	directors in the presence of:

	 	 	)	 	 	 	 	 
	 

	 	 	)	 	 	 	 	 
	 

	 	 	)	 	 	 	 	 
	/s/ Bruce J. W. Potts
	 	 	 	 	 	 	 	 
	 

Signature of authorised person

	 	 	 	 	 	 /s/
Donald A. J. Salter
	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Signature of authorised person	 	 
	Director
	 	 	 	 	 	Director	 	 
	 

Office held

	 	 	 	 	 	Office held	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 		 	 
	Bruce J. W. Potts
	 	 	 	 	 	 	 	 
	 

Name of authorised person

	 	 	 	 	 	 Donald
A. J. Salter	 	 
	 

	 	 	 	 	 	 	 	 
	(block letters)

	 	 	 	 	 	Name of authorised person	 	 
	 

	 	 	 	 	 	(block letters)	 	 
	 
	 	 	 	 	 	 	 	 
	THE COMMON SEAL of AET

	 	 	)	 	 	 	 	 
	STRUCTURED FINANCE

	 	 	)	 	 	 	 	 
	SERVICES PTY LIMITED is duly

	 	 	)	 	 	 	 	 
	affixed by authority of its Authorised

	 	 	)	 	 	 	 	 
	Officers in the presence of:

	 	 	)	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	/s/ Stuart Howard

	 	 	 	 	 	/s/ Yvonne Drake	 	 
	 

	 	 	 	 	 	 	 	 
	Signature of authorised person

	 	 	 	 	 	Signature of authorised person	 	 
	 
	 	 	 	 	 	 	 	 
	Authorised Officer

	 	 	 	 	 	Authorised Officer	 	 
	 

	 	 	 	 	 	 	 	 
	Office held

	 	 	 	 	 	Office held	 	 
	 
	 	 	 	 	 	 	 	 
	Stuart Alexander Howard

	 	 	 	 	 	Yvonne Drake	 	 
	 

	 	 	 	 	 	 	 	 
	Name of authorised person

	 	 	 	 	 	Name of authorised person	 	 
	(block letters)

	 	 	 	 	 	(block letters)	 	 






 
	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8351255_10
	 	James Hardie — Performing Subsidiary Undertaking and Guarantee Trust Deed

12 December 2006
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