exv10w37






Exhibit 10.37









PERFORMING SUBSIDIARY

INTERCREDITOR DEED




THE STATE OF NEW SOUTH WALES

ASBESTOS INJURIES

COMPENSATION FUND LIMITED

(ACN 117 363 461)

JAMES HARDIE 117 PTY LIMITED

(ABN 30 116 110 948)

AET STRUCTURED FINANCE

SERVICES PTY LIMITED

(ABN 12 106 424 088)





2 Park Street       Sydney       NSW 2000       Australia

email@gtlaw.com.au       www.gtlaw.com.au      
Telephone + 61 2 9263 4000       Facsimile + 61 2 9263 4111









 









 








CONTENTS




	 	 	 	 	 

	1. PRELIMINARY
	 	 	3	 
	1.1 Defined Terms and Interpretation
	 	 	3	 
	1.2 Consideration
	 	 	4	 
	1.3 Crown immunity
	 	 	4	 
	1.4 Condition precedent
	 	 	4	 
	 	 	 	 	 
	2. DEED
	 	 	4	 
	2.1 Effect
	 	 	4	 
	2.2 Benefit
	 	 	5	 
	2.3 Inconsistency
	 	 	7	 
	 	 	 	 	 
	3. INTERCREDITOR ARRANGEMENTS
	 	 	7	 
	3.1 Purpose of this deed
	 	 	7	 
	3.2 NSW Government not a creditor of the Performing Subsidiary
	 	 	8	 
	3.3 Turnover
	 	 	8	 
	3.4 Status and ranking of the Compensation Debt (Performing Subsidiary)
	 	 	8	 
	 	 	 	 	 
	4. PROCEDURE ON INSOLVENCY
	 	 	9	 
	4.1 Proceeds held on trust
	 	 	9	 
	4.2 Distribution of Proceeds
	 	 	9	 
	4.3 Payment of amounts recovered
	 	 	10	 
	4.4 Residual Rights
	 	 	11	 
	4.5 No exercise of Financiers’ rights
	 	 	11	 
	4.6 Substitution of the Fund Trustee
	 	 	12	 
	4.7 Additional Rights
	 	 	12	 
	4.8 Replacement or substitution of the Performing Subsidiary
	 	 	13	 
	 	 	 	 	 
	5. RIGHTS IN RELATION TO THE COMPENSATION DEBT (PERFORMING SUBSIDIARY)
	 	 	13	 
	5.1 No prohibition
	 	 	13	 
	5.2 NSW Government Enforcement Rights
	 	 	14	 






			
	 	 	 
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	6. COVENANTS
	 	 	16	 
	6.1 Restriction on dealings
	 	 	16	 
	6.2 No security
	 	 	17	 
	 	 	 	 	 
	7. UNDERTAKING AND GUARANTEE TRUSTEE
	 	 	18	 
	7.1 Appointment and removal
	 	 	18	 
	7.2 Sole Representative
	 	 	18	 
	7.3 Acknowledgement by the Fund Trustee and the NSW Government
	 	 	18	 
	7.4 No Undertaking and Guarantee Trustee
	 	 	19	 
	7.5 Acknowledgement by the Undertaking and Guarantee Trustee
	 	 	19	 
	7.6 Substitution of the Undertaking and Guarantee Trustee
	 	 	20	 
	7.7 Standard of Duty
	 	 	21	 
	7.8 Functions, duties and obligations of the Undertaking and Guarantee Trustee
	 	 	21	 
	 	 	 	 	 
	8. VOTING IN INSOLVENCY PROCEEDINGS
	 	 	26	 
	8.1 Irrevocable Appointment of Attorney
	 	 	26	 
	8.2 Voting
	 	 	28	 
	8.3 Appointment of an Independent Expert
	 	 	30	 
	8.4 Role of the Independent Expert
	 	 	33	 
	8.5 Notice of determination by the Independent Expert
	 	 	35	 
	8.6 Assistance to the Independent Expert
	 	 	35	 
	8.7 Determination by the Independent Expert final
	 	 	35	 
	8.8 Consent of NSW Government required in certain circumstances
	 	 	36	 
	8.9 Defaulting or absent Undertaking and Guarantee Trustee
	 	 	36	 
	8.10 Residual Power
	 	 	37	 
	 	 	 	 	 
	9. CHANGES TO RIGHTS
	 	 	37	 
	9.1 Rights of the Financiers are protected
	 	 	37	 
	9.2 Payments
	 	 	39	 
	9.3 Reinstatement of rights
	 	 	40	 
	9.4 Set-off
	 	 	40	 






			
	 	 	 
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	9.5 Discretion in exercising rights
	 	 	40	 
	9.6 Partial exercising of rights
	 	 	40	 
	9.7 Remedies cumulative
	 	 	40	 
	9.8 Variation and waiver
	 	 	41	 
	 	 	 	 	 
	10. INCONSISTENT LAW
	 	 	41	 
	10.1 Inconsistent law
	 	 	41	 
	10.2 Supervening legislation
	 	 	41	 
	 	 	 	 	 
	11. NOTICES
	 	 	41	 
	 	 	 	 	 
	12. GOVERNING LAW AND JURISDICTION
	 	 	44	 
	12.1 Governing law
	 	 	44	 
	12.2 Submission to jurisdiction
	 	 	44	 
	12.3 Service
	 	 	44	 
	 	 	 	 	 
	13. COUNTERPARTS
	 	 	44	 
	 	 	 	 	 
	14. GENERAL
	 	 	45	 
	14.1 Severability
	 	 	45	 
	14.2 No waiver
	 	 	45	 
	14.3 Further assurances
	 	 	45	 
	14.4 Entire agreement
	 	 	45	 
	14.5 Cumulative rights
	 	 	46	 
	14.6 Certificates
	 	 	46	 
	14.7 Amendment of this deed
	 	 	46	 
	14.8 Confidentiality
	 	 	46	 
	 	 	 	 	 
	15. UNDERTAKING AND GUARANTEE TRUSTEE LIMITATION OF LIABILITY
	 	 	47	 
	15.1 Limitation of liability
	 	 	47	 
	15.2 Undertaking and Guarantee Trustee’s knowledge
	 	 	49	 
	15.3 Reliance on notices
	 	 	49	 
	 	 	 	 	 
	SCHEDULE 1 — FINANCIER NOMINATION LETTER
	 	 	52	 
	 	 	 	 	 
	SCHEDULE 2 — ACCESSION DEED
	 	 	55	 






			
	 	 	 
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	SCHEDULE 3 — FORM OF POWER OF ATTORNEY
	 	 	56	 
	 	 	 	 	 
	1. APPOINTMENT
	 	 	56	 
	 	 	 	 	 
	2. WHAT THE APPOINTER MAY DO
	 	 	56	 
	 	 	 	 	 
	3. GENERAL
	 	 	57	 
	3.1 Attorney’s acts valid
	 	 	57	 
	3.2 Benefit to the Attorney
	 	 	57	 
	3.3 Governing law
	 	 	58	 
	 	 	 	 	 
	4. COMPLIANCE WITH PERFORMING SUBSIDIARY INTERCREDITOR DEED
	 	 	58	 
	 	 	 	 	 
	5. INTERPRETATION
	 	 	58	 
	 	 	 	 	 
	ATTACHMENT A — DICTIONARY AND INTERPRETATION
	 	 	60	 






			
	 	 	 
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DATED 19 December 2006




PARTIES





	1.	 	THE STATE OF NEW SOUTH WALES of Level 39, Governor Macquarie Tower, Farrer Place,
Sydney, NSW 2000 (NSW Government)
	 
	2.	 	ASBESTOS INJURIES COMPENSATION FUND LIMITED (ACN 117 363 461) of Level 3, 22 Pitt
Street, Sydney NSW 2000 in its capacity as trustee for the Charitable Fund (Fund
Trustee)
	 
	3.	 	JAMES HARDIE 117 PTY LIMITED (ABN 30 116 110 948) (formerly known as LGTDD Pty
Limited) of Level 3, 22 Pitt Street, Sydney in the State of New South Wales) (Performing
Subsidiary)
	 
	4.	 	AET STRUCTURED FINANCE SERVICES PTY LIMITED (ABN 12 106 424 088) of 80
Alfred Street, Milsons Point NSW 2061 in its capacity as trustee for the Financiers under
the Undertaking and Guarantee Trust (Undertaking and Guarantee Trustee)




The defined terms in the above list of parties are given expanded meanings in the Dictionary
in Part 1 of Attachment A to this deed.




BACKGROUND



This deed is entered into in the following context (where capitalised terms are defined in
clause 1):





	A.	 	James Hardie Industries Limited (now known as ABN 60 Pty Limited)
(JHIL), a company organised under the laws of Australia, was listed on the
Australian Stock Exchange in 1951. The business then carried on by JHIL and its subsidiaries
had by that time 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 members of the JHINV Group with the result that JHINV became the ultimate
holding company of the businesses formerly carried on or controlled by JHIL.






			
	 	 	 
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	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). At the date of this deed, the JHINV Group
carries on the business of manufacturing building products in the United States of America,
Australia, New Zealand and the Philippines.
	 
	D.	 	The Performing Subsidiary is a wholly owned subsidiary of JHINV.
	 
	E.	 	On 21 December 2004, JHINV and others entered into a non-binding 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.
	 
	F.	 	On 1 December 2005 the NSW Government, JHINV and the Performing Subsidiary entered
into the Original Final Funding Agreement with the common intention of making funding
available by JHINV and/or its subsidiaries to pay, on the basis set out in the Original Final
Funding Agreement, Proven Claims (as defined in the Original Final Funding Agreement) against
the Liable Entities (as defined in 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 and to give effect to the intention and
agreement of the relevant parties referred to in paragraph E above.
	 
	H.	 	On 21 November 2006 the parties to the Original Final Funding Agreement (including
the Fund Trustee) entered into 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.






			
	 	 	 
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	K.	 	The NSW Government is not a creditor of the Performing Subsidiary in relation to
the payment of the Compensation Debt (Performing Subsidiary).
	 
	L.	 	However, the NSW Government shall be entitled to directly enforce all promises made
by the Performing Subsidiary to the Fund Trustee under the Final Funding Agreement subject to,
and in accordance with, the provisions of the Final Funding Agreement.
	 
	M.	 	The purpose of this deed is to set out the agreement between (1) the Fund Trustee
and the NSW Government, and (2) the Undertaking and Guarantee Trustee and the Financiers, as
to the manner in which certain rights in respect of the Compensation Debt (Performing
Subsidiary) and the Finance Money Debt (Performing Subsidiary) respectively are to be
exercised in an Insolvency of the Performing Subsidiary.
	 
	N.	 	The Performing Subsidiary is a party to this deed for the sole purpose of
nominating Persons as Financiers, assuming certain obligations and being entitled to directly
enforce the promises made under clauses 2.2 and 8 of this deed (and, if required for such
enforcement, clauses 1, 2.1, 2.3 and 10 to 14 inclusive).
	 
	O.	 	This deed is not intended, and shall not be taken, to (1) affect the status or
ranking of the Compensation Debt (Performing Subsidiary) as an ordinary unsecured claim
against the Performing Subsidiary, or (2) affect the status or ranking of the Compensation
Debt (Performing Subsidiary) as against the other debts (including the Finance Money Debt
(Performing Subsidiary)) or the other creditors of the Performing Subsidiary (including the
Financiers).





THE PARTIES AGREE





	1.	 	PRELIMINARY
	 
	1.1	 	Defined Terms and Interpretation
	 
	(a)	 	A term or expression starting with a capital letter which is defined in the Dictionary
in Part 1 of Attachment A (Dictionary), has the meaning given to it in the
Dictionary.






			
	 	 	 
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	(b)	 	The Interpretation clauses in Part 2 of Attachment A (Interpretation) set out
rules of interpretation for this deed.
	 
	1.2	 	Consideration




Each party acknowledges entering into this deed and incurring obligations and giving rights
under this deed for valuable consideration received from the other parties to this deed (including
in the case of the Fund Trustee, the NSW Government and the Performing Subsidiary, the execution of
the Final Funding Agreement).



Each Replacement Trustee or New Undertaking and Guarantee Trustee who accedes to this deed in
accordance with clause 4.6 or 7.6 will be taken to acknowledge becoming a party to this deed and
incurring obligations and giving rights under this deed for valuable consideration received from
the other parties to this deed.





	1.3	 	Crown immunity




This deed binds the Crown in right of New South Wales and to the maximum extent permitted by
law the NSW Government hereby waives all Crown immunity with respect to this deed.





	1.4	 	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.	 	DEED
	 
	2.1	 	Effect




Subject to clauses 2.3, 4.6 and 7.6, this deed takes effect as both:





	(a)	 	a deed between the NSW Government, the Fund Trustee, the Performing Subsidiary and the
Undertaking and Guarantee Trustee; and
	 
	(b)	 	a deed poll by the NSW Government and the Fund Trustee in favour of each Financier from
time to time in respect of any Finance Money Debt (Performing






			
	 	 	 
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	 	 	Subsidiary) raised or incurred by the Performing Subsidiary from time to time during the
term of the Final Funding Agreement.




For the avoidance of doubt:





	 	(i)	 	this deed continues for the term of the Final Funding Agreement even though
there may be no Finance Money Debt (Performing Subsidiary) outstanding at any
particular point in time;
	 
	 	(ii)	 	this deed terminates on the date upon which the obligations of the Performing
Subsidiary under the Final Funding Agreement have been satisfied or discharged in full
in accordance with the Final Funding Agreement; and
	 
	 	(iii)	 	undertakings expressed to be in favour of some of the parties to this deed
(excluding the Performing Subsidiary) are not given in favour of the Performing
Subsidiary, although the Performing Subsidiary is entitled to directly enforce the
promises made under clauses 2.2 and 8 of this deed (and, if required for such
enforcement, clauses 1, 2.1, 2.3 and 10 to 14 inclusive).






	2.2	 	Benefit
	 
	(a)	 	Each Financier has the benefit of, is bound by and is entitled to enforce this deed
even though it is not a party to, or is not in existence at the date of execution and
delivery of this deed.
	 
	(b)	 	Subject to clause 2.2(f), the benefit and obligations of this deed may be extended to any
Person (and such Person shall become a Financier) in relation to any document (and such
document shall become a Finance Document) under which liabilities are owed to such Person
where such liabilities are, or are required to be, included in the Performing Subsidiary
Group’s financial statements or notes thereto as debt or borrowings (including 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 another member of the
Performing Subsidiary Group 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 the Undertaking and Guarantee






			
	 	 	 
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	 	 	Trustee, a Financier Nomination Letter and the Person (or an agent or trustee acting on
behalf of the Person) countersigning such Financier Nomination Letter and delivering the
countersigned Financier Nomination Letter to the Undertaking and Guarantee Trustee.






	(c)	 	Without limiting clause 2.2(b), the benefits and obligations of this deed do not extend to
a Person:






	 	(i)	 	by reason of any conduct or representation made by the Performing Subsidiary
or JHINV to that Person; and
	 
	 	(ii)	 	unless and until the Undertaking and Guarantee Trustee has received a duly
countersigned Financier Nomination Letter from that Person (or an agent or trustee
acting on behalf of the Person).






	(d)	 	The Undertaking and Guarantee Trustee must:






	 	(i)	 	promptly send a copy of each countersigned Financier Nomination Letter to the
NSW Government and the Fund Trustee (other than a Financier Nomination Letter in
respect of a Financier where this deed has ceased to apply to that Financier in
accordance with clause 2.2(g)) upon an officer of the Undertaking and Guarantee
Trustee responsible for the day to day administration of this deed becoming aware of
the occurrence of an Insolvency of the Performing Subsidiary; and
	 
	 	(ii)	 	following the occurrence of an Insolvency of the Performing Subsidiary, on
request provide to the NSW Government and the Fund Trustee written confirmation of the
nature and quantum of the Finance Money Debt (Performing Subsidiary) as at the date
such information is provided.






	(e)	 	The Fund Trustee and the NSW Government confirm that, subject to clause 2.2(f), each of
them has irrevocably and for valuable consideration authorised the Performing Subsidiary to
sign and deliver any Financier Nomination Letter, nominating a Person as a Financier and a
document as a Finance Document, and acknowledge and confirm that the provisions of this deed
which are for the benefit of the Financiers, will extend to that Financier and the Finance
Document so nominated.






			
	 	 	 
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	(f)	 	The benefit and obligations of this deed in relation to Financiers may not be extended to
any Person to the extent that Person is an Excluded Lender and any such nomination shall be
of no force or effect for the purposes of this deed.
	 
	(g)	 	This deed shall cease to apply to a Financier once:






	 	(i)	 	there is no Finance Money Debt (Performing Subsidiary) in respect of that
Financier;
	 
	 	(ii)	 	the Performing Subsidiary has no outstanding obligations to the Financier in
relation to any Finance Money Debt (Performing Subsidiary); and
	 
	 	(iii)	 	that Financier has no further obligation to provide financial accommodation
to the Performing Subsidiary (or another member of the Performing Subsidiary Group the
performance of whose obligations has been guaranteed by the Performing Subsidiary)
under the relevant Finance Documents,






	 	 	or that Financier otherwise consents in writing to such cessation.
	 
	(h)	 	If this deed ceases to apply to a Financier in accordance with clause 2.2(g), the
Performing Subsidiary and that Financier must promptly notify the Undertaking and Guarantee
Trustee.
	 
	2.3	 	Inconsistency




If any provision of the Final Funding Agreement, any Related Agreement (as defined in the
Final Funding Agreement, but excluding this deed and the JHINV Intercreditor Deed), the Finance
Undertaking and Guarantee (Performing Subsidiary) or any Finance Document is inconsistent with this
deed, this deed prevails to the extent of the inconsistency unless a contrary intention is
expressed in this deed.





	3.	 	INTERCREDITOR ARRANGEMENTS
	 
	3.1	 	Purpose of this deed




The purpose of this deed is to set out the agreement between:





	(a)	 	the Fund Trustee and the NSW Government; and






			
	 	 	 
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	(b)	 	the Undertaking and Guarantee Trustee and the Financiers,




as to the manner in which certain rights in respect of the Compensation Debt (Performing
Subsidiary) and the Finance Money Debt (Performing Subsidiary) respectively are to be exercised in
an Insolvency of the Performing Subsidiary.





	3.2	 	NSW Government not a creditor of the Performing Subsidiary




Notwithstanding the wording of any other provision of the Final Funding Agreement, any
Related Agreement or this deed, the NSW Government acknowledges that it is not a creditor of the
Performing Subsidiary in relation to the payment of the Compensation Debt (Performing Subsidiary).





	3.3	 	Turnover




Each Compensation Party agrees for the benefit of the Undertaking and Guarantee Trustee and
the Financiers that if the Performing Subsidiary becomes Insolvent, any amount (in the form of
money or other property) paid to it by or for the account of, or recovered by it from or for the
account of, the Performing Subsidiary in respect of the Compensation Debt (Performing Subsidiary),
after the occurrence of the relevant Insolvency Event, will be paid, or otherwise accounted for, to
the Undertaking and Guarantee Trustee or the relevant Financiers in accordance with this deed,
until the Finance Money Debt (Performing Subsidiary) has been paid and satisfied in full.





	3.4	 	Status and ranking of the Compensation Debt (Performing Subsidiary)




The parties to this deed acknowledge and agree that this deed does not:





	(a)	 	affect the status or ranking of the Compensation Debt (Performing Subsidiary) as an
ordinary unsecured claim again the Performing Subsidiary; or
	 
	(b)	 	affect the status or ranking of the Compensation Debt (Performing Subsidiary) as against
the other debts (including the Finance Money Debt (Performing Subsidiary)) or the other
creditors of the Performing Subsidiary (including the Financiers).






			
	 	 	 
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	4.	 	PROCEDURE ON INSOLVENCY
	 
	4.1	 	Proceeds held on trust




Subject to this deed, while the Performing Subsidiary is Insolvent and for so long as any
Finance Money Debt (Performing Subsidiary) remains outstanding, each Compensation Party agrees for
the benefit of the Undertaking and Guarantee Trustee and the Financiers to hold all Proceeds
received by it from or on account of the Performing Subsidiary (or such proportion of the Proceeds
sufficient to discharge and satisfy the Finance Money Debt (Performing Subsidiary) in full) on
trust for the relevant Financiers.



For so long as any Finance Money Debt (Performing Subsidiary) remains outstanding, then promptly
after receipt by it of any Proceeds from or on account of the Performing Subsidiary, each
Compensation Party agrees for the benefit of the Undertaking and Guarantee Trustee and the
Financiers to notify the Undertaking and Guarantee Trustee and deposit the Proceeds (or such
proportion of the Proceeds sufficient to discharge and satisfy the Finance Money Debt (Performing
Subsidiary) in full) into one or more accounts specifically designated by the Undertaking and
Guarantee Trustee for that purpose (or, in the case of any Proceeds which consist of property other
than money, transfer such property to the Undertaking and Guarantee Trustee).



This clause establishes a trust over the Proceeds. The trust commences on the date of this deed
and if not previously terminated, terminates on the day before the eightieth anniversary of the
date of this deed. It does not create a charge or other security interest over the Proceeds.





	4.2	 	Distribution of Proceeds




Each Compensation Party agrees for the benefit of the Undertaking and Guarantee Trustee and
the Financiers that all Proceeds received by it from or on account of the Performing Subsidiary are
to be held and distributed:





	(a)	 	first, to the Undertaking and Guarantee Trustee on account of the Finance Money Debt
(Performing Subsidiary) which remains owing by the Performing Subsidiary to the Financiers,
after all payments received from, or due and payable under the Insolvency by, the Insolvency
Official and all prior payments under this clause 4.2(a), if any, have been taken into
account (“Net Finance Money Debt (Performing Subsidiary)”);






			
	 	 	 
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	(b)	 	secondly, to the extent of any balance after repayment of the Net Finance Money Debt
(Performing Subsidiary) owed by the Performing Subsidiary to the Financiers in full, to the
Fund Trustee to satisfy the Compensation Debt (Performing Subsidiary); and
	 
	(c)	 	thirdly, to the extent of any balance after repayment of the Compensation Debt (Performing
Subsidiary) in full, to the Performing Subsidiary (for its own account).






	4.3	 	Payment of amounts recovered




Subject to the provisions of this clause 4.3, each Compensation Party agrees for the benefit
of the Undertaking and Guarantee Trustee and the Financiers that, if at any time while the
Performing Subsidiary is Insolvent an amount (in the form of money or any other property):





	(a)	 	is received or recovered by a Compensation Party on account of the Compensation Debt
(Performing Subsidiary) (which is not subject to the trust in clause 4.1); or
	 
	(b)	 	is paid to any Person other than a Compensation Party in connection with the Compensation
Debt (Performing Subsidiary) with the consent or at the request of a Compensation Party or
for the benefit of a Compensation Party; or
	 
	(c)	 	is set off by a Compensation Party against the Compensation Debt (Performing Subsidiary)
(whether by operation of law or otherwise),




the Compensation Party agrees for the benefit of the Undertaking and Guarantee Trustee and the
Financiers to promptly notify the Undertaking and Guarantee Trustee and pay into one or more
accounts specifically designated by the Undertaking and Guarantee Trustee for that purpose the
amount (or, in the case of any Proceeds which consists of property other than money, transfer such
property to the Undertaking and Guarantee Trustee) received, recovered, paid or set off (or such
proportion of the amount or other property sufficient to discharge and satisfy the Finance Money
Debt (Performing Subsidiary) in full).



If in an Insolvency of the Performing Subsidiary, a Compensation Party is required to refund, repay
or otherwise disgorge to, or in favour of, the Performing Subsidiary all or any part of an Annual
Payment received prior to the occurrence of the relevant





			
	 	 	 
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Insolvency Event (otherwise than pursuant to clause 14.9(b) of the Final Funding Agreement as the
result of any overpayment of that Annual Payment), this clause 4.3 does not apply if that amount is
set off against another amount owed by the Performing Subsidiary to that Compensation Party and no
payment is required by that Compensation Party pursuant to this clause 4.3 in respect of the amount
set off.





	4.4	 	Residual Rights




If at any time subsequent to the occurrence of an Insolvency Event in respect of the
Performing Subsidiary, the Financiers have received, whether by way of distribution by the
Insolvency Official in the Insolvency, as payments to the Undertaking and Guarantee Trustee under
clause 4 or otherwise, an amount at least equal to the amount (in the form of money or any other
property) of the Finance Money Debt (Performing Subsidiary), the Financiers agree for the benefit
of the Fund Trustee and the NSW Government that the Financiers must:





	(a)	 	not withdraw, waive, release, compromise or deal in any way with their remaining rights in
the Insolvency in relation to the Finance Money Debt (Performing Subsidiary) (Residual
Rights);
	 
	(b)	 	until the Compensation Debt (Performing Subsidiary) has been discharged and satisfied in
full, do anything reasonably required by the NSW Government (at the cost of the NSW
Government) to assign or otherwise transfer their Residual Rights to the Fund Trustee or to
enable the Fund Trustee to be subrogated to, or otherwise enjoy the benefit of, the Residual
Rights; and
	 
	(c)	 	pay any money and/or any other property received pursuant to the Residual Rights to the
Fund Trustee.
	 
	4.5	 	No exercise of Financiers’ rights




As long as any of the Finance Money Debt (Performing Subsidiary) remains outstanding, each
Compensation Party and the NSW Government agree for the benefit of the Undertaking and Guarantee
Trustee and the Financiers that such party may not, without the prior written consent of the
Undertaking and Guarantee Trustee, exercise any right to claim to be entitled to the benefit of any
of the rights of some or all of the Financiers (including the benefit of any Residual Rights or any
Security Interest or guarantee, indemnity or assurance against financial loss) in respect of any
Finance Money Debt (Performing Subsidiary).






			
	 	 	 
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In addition, if a Replacement Trustee has been appointed or nominated, but not yet executed and
delivered an Accession Deed (and a power of attorney as required by clause 8.1(b)) in accordance
with clause 4.6, the NSW Government agrees for the benefit of the Undertaking and Guarantee Trustee
and the Financiers to ensure that, as long as any of the Finance Money Debt (Performing Subsidiary)
remains outstanding, the Replacement Trustee does not exercise or seek to exercise any right to
claim to be entitled to the benefit of any of the rights of some or all of the Financiers
(including the benefit of any Residual Rights or any Security Interest or guarantee, indemnity or
assurance against financial loss) in respect of any Finance Money Debt (Performing Subsidiary).





	4.6	 	Substitution of the Fund Trustee




If a Replacement Trustee is appointed in accordance with the Final Funding Agreement then
the NSW Government must:





	(a)	 	promptly notify the Undertaking and Guarantee Trustee of the appointment and the identity
and contact details of the Replacement Trustee; and
	 
	(b)	 	procure, at its own expense, that the Replacement Trustee duly executes and delivers an
Accession Deed (and a power of attorney as required by clause 8.1(b)) to each party to this
deed.




A Replacement Trustee acquires no rights or benefits under this deed (either in its capacity as
such or as successor to the Fund Trustee) until such time as an Accession Deed (and a power of
attorney as required by clause 8.1(b)) has been duly executed by the Replacement Trustee and
delivered to each party to this deed. This clause does not require such documents to be delivered
to a Financier.



The NSW Government shall ensure that the Replacement Trustee is incorporated in the State of New
South Wales.





	4.7	 	Additional Rights
	 
	(a)	 	If in connection with an Insolvency of the Performing Subsidiary a Compensation Party
is required to disgorge or unwind all or part of the recovery of receipt of Proceeds or any
other amounts (in the form of money or other property) received by it from, or on account of,
the Performing Subsidiary and which have been paid to the Undertaking and Guarantee Trustee
or a Financier in accordance with this clause 4, the Undertaking and Guarantee Trustee or the






			
	 	 	 
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	 	 	relevant Financier (as the case may be), must promptly, following a request from the
relevant Compensation Party, repay to the relevant Compensation Party the amounts (or
other property) so received by it from that Compensation Party.






	(b)	 	If in connection with an Insolvency of the Performing Subsidiary the Undertaking and
Guarantee Trustee or a Financier is required to disgorge or unwind all or part of the
recovery of any money and/or any other property received pursuant to the Residual Rights and
which have been paid to the Fund Trustee in accordance with clause 4.4(c), the Fund Trustee,
must promptly, following a request from the Undertaking and Guarantee Trustee or the relevant
Financier (as the case may be), repay to the Undertaking and Guarantee Trustee or the
relevant Financier (as the case may be), the amounts (or other property) so received by it in
accordance with clause 4.4(c).
	 
	4.8	 	Replacement or substitution of the Performing Subsidiary




If the Performing Subsidiary is replaced or substituted as Performing Subsidiary (as that
term is defined in the Final Funding Agreement) by another Person (“Replacement Subsidiary”) in
accordance with clause 6.2 of the Final Funding Agreement, this deed shall automatically terminate
(and no party shall have any rights or owe any obligations under this deed) upon the Compensation
Parties, the Undertaking and Guarantee Trustee and the Replacement Subsidiary (each acting
reasonably) having entered into a replacement deed on substantially the same terms as this deed.



If the Replacement Subsidiary assumes any obligations in respect of a Financier, that Person may
become a Financier under that replacement deed.





	5.	 	RIGHTS IN RELATION TO THE COMPENSATION DEBT (PERFORMING SUBSIDIARY)
	 
	5.1	 	No prohibition




Subject to the provisions of clauses 3.3, 4.1, 4.2, 4.5, 6 and 8 of this deed, no
Compensation Party nor the NSW Government is prohibited by this deed from, or restricted in
exercising all or any of its rights under the Final Funding Agreement in relation to the
obligations and liabilities of the Performing Subsidiary, whether before or after the occurrence of
an Insolvency Event in respect of the Performing Subsidiary.





			
	 	 	 
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Without limiting the generality of the foregoing, but subject to the provisions of clauses 3.3, 4.1
        ,4.2, 4.5, 6 and 8 of this deed, a Compensation Party and the NSW Government (but only to the
extent it is entitled to do so acting in accordance with the Final Funding Agreement and applicable
law) may:





	(a)	 	make demand for, commence proceedings in relation to, enforce any judgment in relation to
and compromise or settle any claim in relation to all such obligations and liabilities;
	 
	(b)	 	seek or obtain from any court of competent jurisdiction at any time an order directing the
Performing Subsidiary to make any payment under or to specifically perform its obligations
under the Final Funding Agreement, or similar equitable relief;
	 
	(c)	 	make application to any court of competent jurisdiction for the winding up of, or in
relation to the Insolvency, of the Performing Subsidiary;
	 
	(d)	 	be present and vote at any meeting of creditors or other meeting which it is entitled to
attend concerning any proposal relating to the Performing Subsidiary or at any meeting
relating to the Insolvency of the Performing Subsidiary;
	 
	(e)	 	individually make submissions to an Insolvency Official in connection with any Insolvency
of the Performing Subsidiary;
	 
	(f)	 	prove the Compensation Debt (Performing Subsidiary) in any Insolvency of the Performing
Subsidiary; and
	 
	(g)	 	participate in any proceedings relating to its right to vote and prove or otherwise
participate in any meeting, proceeding or distribution concerning the Insolvency of the
Performing Subsidiary.
	 
	5.2	 	NSW Government Enforcement Rights
	 
	(a)	 	Any action or the enforcement of any rights of a Compensation Party under this deed in
the event of an Insolvency of the Performing Subsidiary may only be taken by the NSW
Government, unless the NSW Government otherwise consents in writing to the Fund Trustee
taking such action or enforcing those rights.






			
	 	 	 
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	 	 	For the avoidance of doubt, this clause does not preclude an Attorney exercising any rights
under a power of attorney granted pursuant to, and in accordance with, clause 8.
	 
	(b)	 	Any action taken by the NSW Government under this deed:






	 	(i)	 	shall oblige the Fund Trustee to cause any similar or inconsistent action to
be revoked, rescinded or discontinued, provided that the Fund Trustee may resume or
initiate any such action if and to the extent that the corresponding action taken by
the NSW Government is revoked or abandoned by notice in writing by the NSW Government;
and
	 
	 	(ii)	 	shall oblige the NSW Government to hold on trust for the Fund Trustee in
accordance with, and subject to, clause 4.1 any amounts (in the form of money or other
property) received or recovered under, or in respect of, the action taken.






	(c)	 	Where this deed requires or contemplates the consent of, or a nomination or determination
by the Fund Trustee, such consent, nomination or determination shall only be effective if
consented to by the NSW Government, and the Undertaking and Guarantee Trustee must not accept
or act on a notice of consent, nomination or determination, or any other direction, by the
Fund Trustee, unless such notice is accompanied by consent from the NSW Government.
	 
	(d)	 	Without limiting clauses 5.2(a) or (c), the parties acknowledge that:






	 	(i)	 	under clause 16.6(f) of the Final Funding Agreement the Fund Trustee has
agreed not to, without the prior written consent of the NSW Government, waive or
compromise all or any part of any payment (actually or contingently) due from the
Performing Subsidiary under the Final Funding Agreement or any Related Agreement
(including this deed); and
	 
	 	(ii)	 	any such waiver or compromise by the Fund Trustee that is not accompanied by
such written consent from the NSW Government shall be invalid and has no effect on the
obligations of the parties under this deed and cannot be relied upon by the parties or
pleaded by way of estoppel or otherwise in any action or proceeding for the
enforcement of






			
	 	 	 
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	 	 	 	the Final Funding Agreement or any Related Agreement (including this deed).






	(e)	 	The NSW Government acknowledges that its right to enforce this deed is subject to clause 16.6
of the Final Funding Agreement (but, in an Insolvency of JHINV, only to the extent the
provisions of that clause apply in an Insolvency of JHINV).
	 
	(f)	 	Without limiting clauses 5.2(a) or (c), the parties acknowledge that the NSW Government may
commence or institute proceedings in any jurisdiction in relation to the existence or amount
of the Compensation Debt (but, in the case of any Wind Up or Reconstruction Amount (as defined
in the Final Funding Agreement), subject to clause 10 of the Final Funding Agreement) or any
voting rights attaching thereto, or any matters incidental to determining such amount or
voting rights.
	 
	6.	 	COVENANTS
	 
	6.1	 	Restriction on dealings




The Fund Trustee and the NSW Government agree for the benefit of the Undertaking and
Guarantee Trustee and the Financiers that such party may not assign, transfer, create a Security
Interest in respect of or otherwise create rights in respect of or deal with any of its rights
under the Final Funding Agreement or this deed (including all Proceeds), or consent or agree to any
of those things, without:





	(a)	 	in the case of an assignment, a transfer, the creation of a Security Interest or other
rights or a dealing which in any case affects the nature, timing or quantum of the amount
actually or contingently payable to a Compensation Party under the Final Funding Agreement or
another Related Agreement, the prior written consent of the Undertaking and Guarantee Trustee
acting on instructions from all or a specified majority of the Financiers as referred to in
clause 7.3; and
	 
	(b)	 	the assignee, the transferee, the holders of that Security Interest or those other rights
and all other persons having an interest in the rights of the Fund Trustee and the NSW
Government under the Final Funding Agreement or this deed (including all Proceeds) as a
result of any such dealing, having agreed to be bound by the corresponding obligations of the
relevant Compensation Party or the NSW Government under the Final Funding Agreement or this
deed (as the case may be).






			
	 	 	 
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	6.2	 	No security




Each of the Fund Trustee and the NSW Government agree for the benefit of the Undertaking and
Guarantee Trustee and the Financiers that it may not do, or agree to do, any of the following:





	(a)	 	(set off) during the Insolvency of the Performing Subsidiary, exercise any
right of set off in respect of the Compensation Debt (Performing Subsidiary);
	 
	(b)	 	(Security Interest or guarantee) except for the JHINV Guarantee (as defined in
the Final Funding Agreement) and a Cross Guarantee (Fund Guaranteed Money), accept from the
Performing Subsidiary or another member of the Performing Subsidiary Group the benefit of any
Security Interest or guarantee, indemnity or assurance against financial loss in respect of
the Compensation Debt (Performing Subsidiary); or
	 
	(c)	 	(arrangements) enter into any arrangement, take any action or fail to do any
thing, which results in any Proceeds received by it from or on account of the Performing
Subsidiary (or such proportion of the Proceeds sufficient to discharge and satisfy the
Finance Money Debt (Performing Subsidiary) in full) not being held on trust for the relevant
Financiers in accordance with the terms of this deed,




without the prior written consent of the Undertaking and Guarantee Trustee acting on instructions
from all or a specified majority of the Financiers as referred to in clause 7.3.



If in an Insolvency of the Performing Subsidiary, a Compensation Party is required to refund, repay
or otherwise disgorge to, or in favour of, the Performing Subsidiary all or any part of an Annual
Payment received prior to the occurrence of the relevant Insolvency Event (otherwise than pursuant
to clause 14.9(b) of the Final Funding Agreement as the result of any overpayment of that Annual
Payment), clause 6.2(a) does not prohibit that amount being set off by that Compensation Party
against another amount owed by the Performing Subsidiary to that Compensation Party.






			
	 	 	 
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	7.	 	UNDERTAKING AND GUARANTEE TRUSTEE
	 
	7.1	 	Appointment and removal




Subject to clause 7.6, the Fund Trustee and the NSW Government:





	(a)	 	acknowledge that the Performing Subsidiary or the Financiers may appoint, remove and
replace the Undertaking and Guarantee Trustee as trustee under the Finance Undertaking and
Guarantee (Performing Subsidiary) (such newly appointed or replacement trustee, a New
Undertaking and Guarantee Trustee); and
	 
	(b)	 	agree to do anything reasonably required by the Performing Subsidiary, the Financiers, the
outgoing Undertaking and Guarantee Trustee or the New Undertaking and Guarantee Trustee to
enable the New Undertaking and Guarantee Trustee to become a party to this deed in
substitution for the outgoing Undertaking and Guarantee Trustee.






	7.2	 	Sole Representative
	 
	(a)	 	So long as a Person is acting as trustee under the Finance Undertaking and Guarantee
(Performing Subsidiary), the Fund Trustee and the NSW Government may deal exclusively with
that Person in respect of all matters concerning this deed.
	 
	(b)	 	The Financiers acknowledge and confirm that the Person acting as trustee under the Finance
Undertaking and Guarantee (Performing Subsidiary) is empowered to exercise all of their
rights and powers under this deed and agree not to take any action or proceedings to set
aside any act, notice or omission of the Undertaking and Guarantee Trustee undertaken in
accordance with this deed.
	 
	7.3	 	Acknowledgement by the Fund Trustee and the NSW Government




The Fund Trustee and the NSW Government acknowledge that in exercising some or all of the
rights and powers of the Financiers under this deed (including voting on any matter in any meeting,
proceeding or distribution concerning the Insolvency of the Performing Subsidiary), the Undertaking
and Guarantee Trustee may be required to obtain instructions and/or consent from all or a specified
majority of the Financiers.






			
	 	 	 
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If the Undertaking and Guarantee Trustee is so required to obtain instructions and/or consent from
all or a specified majority of the Financiers, the Undertaking and Guarantee Trustee must promptly
request such instructions and/or consent.



The Fund Trustee and the NSW Government are entitled to rely on any representation by the
Undertaking and Guarantee Trustee in relation to its instructions.





	7.4	 	No Undertaking and Guarantee Trustee




Subject to clause 8.10, if no Person is acting as trustee under the Finance Undertaking and
Guarantee (Performing Subsidiary), then unless a contrary intention is apparent from this deed, all
references to the Undertaking and Guarantee Trustee in this deed shall be taken to be references to
each Financier to which this deed applies from time to time acting severally such that each
Financier may severally exercise the rights of the Undertaking and Guarantee Trustee.



If the Undertaking and Guarantee Trustee is to cease to be trustee under the Finance Undertaking
and Guarantee (Performing Subsidiary) and a New Undertaking and Guarantee Trustee is not being
appointed in accordance with clause 7.6, the outgoing Undertaking and Guarantee Trustee must send
promptly a copy of each countersigned Financier Nomination Letter to the Fund Trustee and the NSW
Government (other than a Financier Nomination Letter in respect of a Financier where this deed has
ceased to apply to that Financier in accordance with clause 2.2(g)).





	7.5	 	Acknowledgement by the Undertaking and Guarantee Trustee




The Undertaking and Guarantee Trustee acknowledges and undertakes (and each New Undertaking
and Guarantee Trustee at the date of becoming a party to this deed will be deemed to acknowledge
and undertake) that it:





	(a)	 	is a wholly owned subsidiary of Australian Executors Trustees Limited which is a recognised
trustee company under the laws of New South Wales;
	 
	(b)	 	has relevant and substantive experience and expertise in custody of financial obligations
and in insolvency proceedings generally;
	 
	(c)	 	except to the extent it is entitled to be paid fees or reimbursed or indemnified for costs
and expenses by the Performing Subsidiary or JHINV, has no interest






			
	 	 	 
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	 	 	or duty which to its knowledge conflicts or may conflict with its functions under this
deed; and






	(d)	 	is not a member of a firm, or a director or employee of a firm or a body owned by a firm,
performing any role as advisor, banker, custodian or trustee to the Performing Subsidiary,
JHINV, another member of the JHINV Group or (except for roles undertaken in the ordinary
course of business for state owned business enterprises) the NSW Government during a period
of 3 years prior to the date of this deed or becoming a party to this deed, as the case may
be.
	 
	7.6	 	Substitution of the Undertaking and Guarantee Trustee
	 
	(a)	 	The Performing Subsidiary or the Financiers can only replace the Undertaking and
Guarantee Trustee with any Person who at the date of becoming a New Undertaking and Guarantee
Trustee:






	 	(i)	 	is either (A) a recognised trustee company under the laws of the place in
which its Specified Office is located, or (B) a wholly owned subsidiary of a
recognised trustee company under the laws of that place;
	 
	 	(ii)	 	has relevant and substantive experience and expertise in custody of financial
obligations and in insolvency proceedings generally;
	 
	 	(iii)	 	except to the extent it is entitled to be paid fees or reimbursed or
indemnified for costs and expenses by the Performing Subsidiary or JHINV, has no
interest or duty which to its knowledge conflicts or may conflict with its functions
as contemplated under this deed; and
	 
	 	(iv)	 	is not a member of a firm, or a director or employee of a firm or a body
owned by a firm, performing any role as advisor, banker, custodian or trustee to the
Performing Subsidiary, JHINV, another member of the JHINV Group or (except for roles
undertaken in the ordinary course of business for state owned business enterprises)
the NSW Government during a period of 3 years prior to becoming a party to this deed.






	(b)	 	A substitution under clause 7.6(a) will not occur and a New Undertaking and Guarantee
Trustee acquires no rights or benefits under this deed unless and until the New Undertaking
and Guarantee Trustee duly executes and delivers an






			
	 	 	 
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	 	 	Accession Deed to each party to this deed. This clause does not require an Accession
Deed to be delivered to a Financier.






	(c)	 	If the New Undertaking and Guarantee Trustee is not incorporated in Australia, the
Financiers must procure, at no expense to the Fund Trustee or the NSW Government, the
delivery to the Fund Trustee and the NSW Government of an opinion of generally recognised
independent legal counsel qualified to practise in the relevant jurisdiction to the effect
that the Accession Deed and this deed are valid, binding and enforceable obligations of the
New Undertaking and Guarantee Trustee (subject to laws and defences generally affecting the
enforcement of contracts and the discretionary nature of equitable remedies).
	 
	7.7	 	Standard of Duty




The Undertaking and Guarantee Trustee must exercise, and must procure that each Authorised
Officer of the Undertaking and Guarantee Trustee exercises, good faith and the same degree of care,
skill and diligence as a reasonable and prudent Person would exercise in carrying out its
functions, duties and obligations under this deed.





	7.8	 	Functions, duties and obligations of the Undertaking and Guarantee Trustee
	 
	7.8.1	 	Role of the Undertaking and Guarantee Trustee




Subject to the other provisions of this deed, the Undertaking and Guarantee Trustee must:





	(a)	 	upon an officer of the Undertaking and Guarantee Trustee responsible for the day to day
administration of this deed becoming aware of any Insolvency of the Performing Subsidiary,
promptly send to each Compensation Party a notice which requests them to advise in writing
the amount of the Compensation Debt (Performing Subsidiary) or, alternatively, the basis on
which the Compensation Debt (Performing Subsidiary) is to be calculated and, in the event of
a conflict in the amount of the Compensation Debt (Performing Subsidiary) advised by the Fund
Trustee and the NSW Government, then (in the absence of manifest error) the amount advised by
the NSW Government prevails;






	(b)	 	not do anything to prevent or interfere with a Compensation Party proving the Compensation
Debt (Performing Subsidiary) in an Insolvency (to the extent that






			
	 	 	 
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	 	 	the Compensation Party is acting in accordance with the Final Funding Agreement and
applicable law);






	(c)	 	not make any representation or submission to an Insolvency Official in relation to the
valuation of the claims of the Compensation Parties in respect of the Compensation Debt
(Performing Subsidiary) unless reasonably requested by the NSW Government;
	 
	(d)	 	where the Undertaking and Guarantee Trustee is entitled to exercise any vote pursuant to
clause 8, take all necessary and reasonable steps permitted by applicable law to exercise
that vote for the value of the Compensation Debt (Performing Subsidiary) for the purposes of
the Insolvency of the Performing Subsidiary (including the presentation of all evidence and
submissions to any Insolvency Official as reasonably requested by the NSW Government);
	 
	(e)	 	promptly advise each Compensation Party of any dispute between:






	 	(i)	 	the Undertaking and Guarantee Trustee; and
	 
	 	(ii)	 	an Insolvency Official, the Performing Subsidiary, JHINV and/or one or more
creditors of the Performing Subsidiary,






	 	 	in relation to the Compensation Debt (Performing Subsidiary) or this deed and which may
come before a court of competent jurisdiction, and take all reasonable steps permitted by
applicable law to delay the determination of the dispute for such period of time (as is
reasonable having regard to the procedural laws governing the conduct of the dispute before
the relevant court of competent jurisdiction) so as to give the Compensation Parties a
reasonable opportunity to present evidence and submissions to the relevant court of
competent jurisdiction if they so wish;
	 
	(f)	 	if the Performing Subsidiary is Insolvent, take all reasonable action permitted by
applicable law to ensure that:






	 	(i)	 	all moneys recoverable in respect of the Finance Money Debt (Performing
Subsidiary) are duly and promptly recovered from the relevant Insolvency Official; and






			
	 	 	 
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	 	(ii)	 	any amount payable or repayable to a Compensation Party by a Financier under
this deed, by reason of that Financier receiving whether by way of distribution by the
Insolvency Official in the Insolvency, as payments by a Compensation Party under this
deed or otherwise, an amount in excess of the Finance Money Debt (Performing
Subsidiary) owed to that Financier, are paid or repaid by that Financier to that
Compensation Party;






	(g)	 	not do anything to prevent or interfere with a Compensation Party promptly recovering from
the relevant Insolvency Official all moneys which are recoverable in respect of the
Compensation Debt (Performing Subsidiary);
	 
	(h)	 	take all reasonable steps permitted by applicable law and requested by the NSW Government
to assist the Compensation Parties with the determination of any dispute between:






	 	(i)	 	a Compensation Party; and
	 
	 	(ii)	 	an Insolvency Official, the Performing Subsidiary, JHINV and/or one or more
creditors of the Performing Subsidiary.






	 	 	in relation to the Compensation Debt (Performing Subsidiary) or this deed;
	 
	(i)	 	to the extent permitted by applicable law, apply for and use reasonable endeavours to
obtain any stay, extension of time or other order in relation to the Insolvency of the
Performing Subsidiary which the Undertaking and Guarantee Trustee reasonably considers is
necessary in order to enable any Independent Expert to discharge its responsibilities under
and in accordance with clause 8 or which the NSW Government reasonably requests for such
purpose;
	 
	(j)	 	to the extent permitted by applicable law and if requested by the NSW Government, take all
reasonable steps to recover compensation for any expenses, losses, liabilities, actions,
proceedings, claims and demands (whether actual, contingent, prospective or otherwise) that
are incurred by the Undertaking and Guarantee Trustee (or would have been incurred by the
Undertaking and Guarantee Trustee but for clause 15.1(g)) 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 in accordance with this deed;






			
	 	 	 
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	(k)	 	upon an officer of the Undertaking and Guarantee Trustee responsible for the day to day
administration of this deed becoming aware of any breach of this deed by any party, promptly
notify the Performing Subsidiary, the Financiers and the Compensation Parties of that breach
including details of that breach; and
	 
	(l)	 	promptly notify the Performing Subsidiary, the Financiers and the Compensation Parties if
for any reason it is unable to perform its obligations under this deed.
	 
	7.8.2	 	Provision of information




Without limiting the provisions of clause 8 in relation to Notice of Voting in Insolvency,
the Undertaking and Guarantee Trustee and each Compensation Party agree to give notice to the
Compensation Parties or the Undertaking and Guarantee Trustee, as the case may be, of any request
received from an Insolvency Official in an Insolvency of the Performing Subsidiary which seeks
instructions and/or consent from one or more creditors of the Performing Subsidiary (including, for
the avoidance of doubt, a Financier, the Undertaking and Guarantee Trustee or a Compensation Party)
or otherwise requests action to be taken by one or more creditors of the Performing Subsidiary in
exercise of their respective rights as creditors of the Performing Subsidiary.





	7.8.3	 	Limitations on the obligations of the Undertaking and Guarantee Trustee




Notwithstanding clause 7.8.1, the Undertaking and Guarantee Trustee is not required to do
any act, matter or thing requested by the NSW Government (including make any representation or
submission, or present any evidence, to an Insolvency Official or provide any assistance with the
determination of any dispute between a Compensation Party and an Insolvency Official before a court
of competent jurisdiction) which in the opinion of the Undertaking and Guarantee Trustee (after
having received advice from legal counsel appointed by it and acting reasonably) will constitute a
breach by the Undertaking and Guarantee Trustee of its fiduciary duties owed to the Financiers in
respect of the Finance Money Debt (Performing Subsidiary) (including, for the avoidance of doubt,
any duty not to act in manner which conflicts with a direction of all or a specified majority of
the Financiers).



If any such act, matter or thing will constitute such a breach, the Undertaking and Guarantee
Trustee must promptly notify the NSW Government and take all reasonable steps subsequently
requested by the NSW Government and permitted under applicable




			
	 	 	 
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law to ensure that the objective of the original act, matter or thing requested by the NSW
Government is able to be otherwise achieved:





	(a)	 	in a manner which does not constitute a breach by the Undertaking and Guarantee Trustee of
its fiduciary duties owed to the Financiers in respect of the Finance Money Debt (Performing
Subsidiary); or
	 
	(b)	 	by the NSW Government doing the relevant act, matter or thing in a manner which, if the
relevant act, matter or thing had been done by the Undertaking and Guarantee Trustee, would
be in accordance with this deed.
	 
	7.8.4	 	Duties of the Undertaking and Guarantee Trustee




The Undertaking and Guarantee Trustee has no duties to the Compensation Parties or the NSW
Government except as expressly provided for in this deed.





	7.8.5	 	Limitation on Liability




To the extent permitted by law, nothing in this clause 7.8 imposes liability on the
Undertaking and Guarantee Trustee for:





	(a)	 	special, indirect, incidental, consequential or punitive damages; or
	 
	(b)	 	economic loss, loss of profits, loss of revenue, or loss of goodwill,




arising out of any action undertaken by it in accordance with clause 7.8.1, except to the extent
resulting from the fraud, gross negligence or wilful misconduct of the Undertaking and Guarantee
Trustee.





	7.8.6	 	Indemnity




To the extent permitted by law, the NSW Government indemnifies and keeps indemnified the
Undertaking and Guarantee Trustee against any claims, cost or liability which may be imposed and
which arises out of any action properly undertaken by it in accordance with 7.8.1(d) or undertaken
by the Undertaking and Guarantee Trustee in accordance with a request of the NSW Government under
clause 7.8.1, except to the extent caused by the fraud, gross negligence or wilful misconduct of
the Undertaking and Guarantee Trustee or the failure of the Undertaking and Guarantee Trustee to
take action at the request of the NSW Government.




			
	 	 	 
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	8.	 	VOTING IN INSOLVENCY PROCEEDINGS






	8.1	 	Irrevocable Appointment of Attorney






	(a)	 	Subject to this clause 8, Asbestos Injuries Compensation Fund Limited in its capacity
as trustee for the Charitable Fund irrevocably and for valuable consideration agrees to
appoint the Undertaking and Guarantee Trustee and each Authorised Officer of the Undertaking
and Guarantee Trustee individually as the attorney of Asbestos Injuries Compensation Fund
Limited in its capacity as trustee for the Charitable Fund (together with any person
appointed as an attorney in accordance with clause 8.1(b), an Attorney) to vote
the Compensation Debt (Performing Subsidiary) during the Insolvency of the Performing
Subsidiary or at any meeting, proceeding or distribution concerning the Insolvency of the
Performing Subsidiary for so long as any Finance Money Debt (Performing Subsidiary) remains
outstanding, by executing a power of attorney substantially in the form of Schedule 3 to this
deed, provided that any vote must be exercised in accordance with this clause 8 and Asbestos
Injuries Compensation Fund Limited in that capacity further irrevocably and for valuable
consideration agrees, if required for further assurance, to execute a proxy or authority in a
form ordinarily required under the applicable law governing the relevant proceeding.
	 
	(b)	 	Subject to this clause 8 and simultaneously with executing and delivering an Accession Deed
in accordance with clause 4.6, each Replacement Trustee must irrevocably and for valuable
consideration appoint the Undertaking and Guarantee Trustee and each Authorised Officer of
the Undertaking and Guarantee Trustee individually as the attorney of the Replacement Trustee
to vote the Compensation Debt (Performing Subsidiary) during the Insolvency of the Performing
Subsidiary or at any meeting, proceeding or distribution concerning the Insolvency of the
Performing Subsidiary for so long as any Finance Money Debt (Performing Subsidiary) remains
outstanding, by executing a power of attorney substantially in the form of Schedule 3 to this
deed provided that any vote must be exercised in accordance with this clause 8 and the
Replacement Trustee further irrevocably and for valuable consideration agrees, if required
for further assurance, to execute a proxy or authority in a form ordinarily required under
the applicable law governing the relevant proceeding.





			
	 	 	 
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	(c)	 	Subject to this clause 8, the Fund Trustee and the NSW Government agree not to vote or
attempt to vote the Compensation Debt (Performing Subsidiary) during the Insolvency of the
Performing Subsidiary or at any meeting, proceeding or distribution concerning the Insolvency
of the Performing Subsidiary for so long as any Finance Money Debt (Performing Subsidiary)
remains outstanding.
	 
	(d)	 	The Fund Trustee irrevocably and for valuable consideration authorises the Undertaking and
Guarantee Trustee to provide an original or copy of any power of attorney executed in
accordance with clause 8.1(a) or (b) to an Insolvency Official for the purpose of
establishing the right and entitlement of each Attorney during the Insolvency of the
Performing Subsidiary to exercise the appointor’s right to vote the Compensation Debt
(Performing Subsidiary) at any meeting, proceeding or distribution concerning the Insolvency
of the Performing Subsidiary.
	 
	(e)	 	The Undertaking and Guarantee Trustee must ensure that an Attorney only exercises, and in
circumstances where the Undertaking and Guarantee Trustee is itself appointed an Attorney,
the Undertaking and Guarantee Trustee must only exercise, its rights under a power of
attorney granted in accordance with this clause 8 in accordance with, and subject to, the
provisions of this deed.
	 
	(f)	 	To the extent required under applicable law, the Fund Trustee agrees to ratify:






	 	(i)	 	anything the Undertaking and Guarantee Trustee does in accordance with this
clause 8, and such ratification is without prejudice to its rights in respect of any
breach of this deed by the Undertaking and Guarantee Trustee; and
	 
	 	(ii)	 	whatever an Attorney does in exercising powers under a power of attorney
granted in accordance with this clause 8, provided that there is no obligation to
ratify or confirm any act or matter in breach of this deed or any applicable law.






	(g)	 	Subject to the provisions of this deed, each Compensation Party and the NSW Government must
not do anything to prevent or interfere with the exercise by:






	 	(i)	 	the Undertaking and Guarantee Trustee of its rights and powers, or the
performance of its obligations, under this clause 8; or





			
	 	 	 
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	 	(ii)	 	an Attorney of its rights and powers, or the performance of its obligations,
under the relevant power of attorney.






	(h)	 	Subject to the terms and conditions of this deed and subject to compliance with its
provisions, an Attorney may exercise the right to vote in the appointor’s name or, if
necessary or desirable under the applicable law governing the relevant proceeding, the
Attorney’s name, and may do anything necessary or incidental to such exercise including
signing and delivering documents.
	 
	(i)	 	If for any reason whatsoever an Attorney is not entitled by operation of law to exercise
its rights under the relevant power of attorney, the appointor shall exercise those rights as
directed by the Undertaking and Guarantee Trustee, provided such directions are in accordance
with this clause 8.
	 
	(j)	 	The Undertaking and Guarantee Trustee must promptly provide the NSW Government with
reasonable details of any action taken by the Undertaking and Guarantee Trustee or an
Attorney in respect of the exercise of its powers under a power of attorney granted in
accordance with this clause 8.
	 
	(k)	 	The Undertaking and Guarantee Trustee must promptly provide full details of any action
taken or any votes cast by the Undertaking and Guarantee Trustee or an Attorney in respect of
the Compensation Debt (Performing Subsidiary).






	8.2	 	Voting






	(a)	 	The Compensation Parties are responsible for proving the Compensation Debt (Performing
Subsidiary) in any Insolvency of the Performing Subsidiary and providing such information as
to the value of the Compensation Debt (Performing Subsidiary) as is required by the relevant
Insolvency Official for the purposes of ascribing a value to the Compensation Debt
(Performing Subsidiary) for the purposes of an Insolvency of the Performing Subsidiary.
In proving the Compensation Debt (Performing Subsidiary), the Compensation
Parties must:






	 	(i)	 	use reasonable endeavours to ensure that the relevant Insolvency Official sends
all Notices of Voting in Insolvency in an Insolvency of the Performing Subsidiary (or
a copy of all such notices) to the Undertaking and Guarantee Trustee; and





			
	 	 	 
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	 	(ii)	 	to the extent such notices are received by the Compensation Parties, provide
a copy to the Undertaking and Guarantee Trustee.






	 	 	Notwithstanding any other provision of this deed other than, and subject to, clauses
7.8.1(b) and (c), the Undertaking and Guarantee Trustee is not responsible for proving the
Compensation Debt (Performing Subsidiary) in any Insolvency of the Performing Subsidiary.
	 
	 	 	The Compensation Parties agree to provide the Undertaking and Guarantee Trustee with copies
of all documents submitted to the relevant Insolvency Official for the purposes of
ascribing a value to the Compensation Debt (Performing Subsidiary) for the purposes of an
Insolvency of the Performing Subsidiary or ensuring that the relevant Insolvency Official
sends all Notices of Voting in Insolvency in an Insolvency of the Performing Subsidiary (or
a copy of all such notices) to the Undertaking and Guarantee Trustee.
	 
	(b)	 	Subject to clause 8.8, during the Insolvency of the Performing Subsidiary the Undertaking
and Guarantee Trustee must ensure that an Attorney only votes on any matter in any meeting,
proceeding or distribution concerning the Insolvency of the Performing Subsidiary in respect
of the Compensation Debt (Performing Subsidiary) in accordance with the instructions of the
Financiers given in accordance with the Finance Undertaking and Guarantee (Performing
Subsidiary), provided that:






	 	(i)	 	the Undertaking and Guarantee Trustee must ensure that an Attorney does not
vote unless the Undertaking and Guarantee Trustee has provided the NSW Government with
10 Business Days notice (or, subject to clause 7.8.1(i), such shorter notice as the
Undertaking and Guarantee Trustee determines is reasonable having regard to the terms
of the Notice of Voting in Insolvency) of the Attorney’s intention to vote and the
Attorney votes in accordance with the intention as notified; and
	 
	 	(ii)	 	if an Independent Expert has been appointed under clause 8.3, and the
Independent Expert has determined that, in its opinion, the criteria set out in:






	 	A.	 	clauses 8.4(a), (b), (c) and, if applicable, (d); or
	 
	 	B.	 	clause 8.4(e),





			
	 	 	 
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	 	 	 	are satisfied in relation to the Preferred Option or a particular choice as
described in clause 8.3(a)(ii)(B) or (C), as the case may be, then the Undertaking
and Guarantee Trustee must ensure that an Attorney votes in favour of the
Preferred Option or that particular choice.






	 	 	For the avoidance of doubt, the Undertaking and Guarantee Trustee must ensure that an
Attorney votes in accordance with the proviso to this clause 8.2(b) irrespective of any
instructions of the Financiers to the contrary given in accordance with the Finance
Undertaking and Guarantee (Performing Subsidiary).
	 
	(c)	 	If following the occurrence of a Wind-Up Event in respect of the Performing Subsidiary, the
value of the assets of the Performing Subsidiary available for distribution to pay the claims
of ordinary unsecured creditors (or realisation to allow such payment), as determined or
estimated (in the absence of manifest error) by the relevant Insolvency Official (or
otherwise determined or estimated for the purposes of the relevant Insolvency proceeding in
accordance with applicable law) is equal to or less than the amount required to enable
discharge and satisfaction of the Finance Money Debt (Performing Subsidiary) in full, then,
subject to clauses 8.8 and 8.9, during the Wind-Up Event an Attorney may vote on any matter
in any meeting, proceeding or distribution concerning the Wind-Up Event in respect of the
Compensation Debt (Performing Subsidiary) in accordance with the instructions of the
Financiers given in accordance with the Finance Undertaking and Guarantee (Performing
Subsidiary) and clauses 8.2(b), 8.3 to 8.7 inclusive and 8.10 do not apply.






	8.3	 	Appointment of an Independent Expert






	(a)	 	If during the Insolvency of the Performing Subsidiary:






	 	(i)	 	the Undertaking and Guarantee Trustee or an Attorney receives a Notice of
Voting in Insolvency (or a copy of a Notice of Voting in Insolvency); and
	 
	 	(ii)	 	a vote on any matter in any meeting, proceeding or distribution concerning
the Insolvency of the Performing Subsidiary requires a choice between:





			
	 	 	 
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	 	A.	 	two or more options, proposals, courses of action or other
alternatives (howsoever described) (Options) for the partial or
full winding up, restructure or reconstruction of the Performing Subsidiary
or the realisation of some or all of the Performing Subsidiary’s assets in
connection with its Insolvency;
	 
	 	B.	 	deferring or not deferring any action; or
	 
	 	C.	 	extending or not extending the Insolvency proceeding,






	 	 	then the Undertaking and Guarantee Trustee must promptly provide the NSW Government with a
copy of the Notice of Voting in Insolvency and procure the appointment of an Independent
Expert in accordance with this clause 8.3, such appointment to be made within 10 Business
Days of receipt by the Undertaking and Guarantee Trustee of the Notice of Voting in
Insolvency (unless the NSW Government gives notice that it does not so require).
	 
	(b)	 	The Undertaking and Guarantee Trustee must, prior to any appointment of an Independent
Expert under this deed, provide the NSW Government with 5 Business Days notice (or, subject
to clause 7.8.1(i), such shorter notice as the Undertaking and Guarantee Trustee determines
is reasonable having regard to the terms of the Notice of Voting in Insolvency) of the Person
nominated by the Undertaking and Guarantee Trustee to act as Independent Expert, together
with evidence demonstrating such nominee’s compliance with the criteria and qualifications
required of an Independent Expert under this deed.
	 
	(c)	 	If an Independent Expert is appointed under this clause 8.3, the costs of the Independent
Expert shall be borne by the NSW Government.
	 
	(d)	 	Subject to clause 8.3(e), upon receipt of a Notice of Voting in Insolvency and at any time
prior to 2 Business Days before the latest date on which the Independent Expert must make a
determination in accordance with clauses 8.4 and 8.5 (or, subject to clause 7.8.1(i), such
earlier time as the Undertaking and Guarantee Trustee determines is reasonable having regard
to the terms of the Notice of Voting in Insolvency and advises the Fund Trustee and the NSW
Government), the NSW Government may nominate:






	 	(i)	 	an Option which it would like an Attorney to vote for in respect of the
Compensation Debt (Performing Subsidiary); or





			
	 	 	 
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	 	(ii)	 	if the vote relates to deferring or not deferring any action or extending or
not extending the Insolvency proceeding, which alternative it would like the Attorney
to vote for in respect of the Compensation Debt (Performing Subsidiary).






	(e)	 	If an Independent Expert appointed under this clause 8 determines that an Option, other
than the Option nominated by the NSW Government under clause 8.3(d)(i), satisfies the
criteria set out in:






	 	(i)	 	clauses 8.4(a), (b), (c) and if applicable, (d); or
	 
	 	(ii)	 	clause 8.4(e),






	 	 	then the NSW Government may immediately, with notice in writing to the Undertaking and
Guarantee Trustee, nominate the Option so determined by the Independent Expert as the
Option that it would like an Attorney to vote for in respect of the Compensation Debt
(Performing Subsidiary).
	 
	(f)	 	For the purposes of this clause 8, Preferred Option means:






	 	(i)	 	subject to clause 8.3(f)(ii), the Option nominated by the NSW Government
under clause 8.3(d)(i); or
	 
	 	(ii)	 	if the circumstances in clause 8.3(e) apply, the Option nominated by the NSW
Government under clause 8.3(e); or
	 
	 	(iii)	 	if the circumstances in clause 8.3(g) apply, the Option nominated by the NSW
Government under clause 8.3(g); or
	 
	 	(iv)	 	if the NSW Government has not nominated an Option in accordance with clause
8.3(d)(i) or 8.3(e), the Preferred Option is deemed to be the Option which the
Independent Expert determines satisfies the criteria set out in:






	 	A.	 	clauses 8.4(a), (b), (c) and, if applicable, (d); or
	 
	 	B.	 	clause 8.4(e),






	 	 	 	and in respect of which the amounts anticipated to be received by, or on behalf of
the Fund, have a higher net present value than any other Option





			
	 	 	 
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	 	 	 	having regard (among any other factors) to any potential future payment by the
Performing Subsidiary, JHINV or a James Hardie Successor (under an agreement
similar in its effect to the Final Funding Agreement) in respect of part or all of
the Compensation Debt (Performing Subsidiary).






	(g)	 	If the Independent Expert determines that there are two or more Options which satisfy the
criteria set out in clause 8.2(b)(ii), the NSW Government may notify the Undertaking and
Guarantee Trustee in writing which Option it wishes to nominate as the Preferred Option.






	8.4	 	Role of the Independent Expert




If an Independent Expert is appointed under this clause 8, the Independent Expert shall
determine (and shall be instructed by the Undertaking and Guarantee Trustee only to determine), in
its opinion:





	(a)	 	whether, one or more Options (if approved and implemented in the manner described in the
Notice of Voting in Insolvency) are likely to result in the recovery by the Undertaking and
Guarantee Trustee of an amount in respect of the Finance Money Debt (Performing Subsidiary)
which would be sufficient (taking into account prior ranking claims, the likely or
anticipated distribution to Financiers by the Insolvency Official and any likely payment to
the Undertaking and Guarantee Trustee under clause 4) to discharge and satisfy the Finance
Money Debt (Performing Subsidiary) in full;
	 
	(b)	 	whether one or more of the Options which satisfy the requirements of paragraph (a) (if
approved and implemented in the manner described in the Notice of Voting in Insolvency) are
likely to result in the recovery by the Undertaking and Guarantee Trustee in respect of the
Finance Money Debt (Performing Subsidiary) of an amount:






	 	(i)	 	which would be at least 5% greater than the amount which the Undertaking and
Guarantee Trustee would be likely to recover in respect of the Finance Money Debt
(Performing Subsidiary) under any other Option, after allowing for the time value of
money; and
	 
	 	(ii)	 	which would discharge and satisfy the Finance Money Debt (Performing
Subsidiary) in full by a date no later than 12 months after the earliest date





			
	 	 	 
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	 	 	 	by which any of the other Options would achieve full discharge and satisfaction of
the Finance Money Debt (Performing Subsidiary); and






	(c)	 	whether the conditions (if any) attached to one or more of the Options which satisfy the
requirements of paragraph (a) (as described in the Notice of Voting in Insolvency) do not
involve a materially greater risk of non-recovery, or delay in recovery of more than 12
months, by the Undertaking and Guarantee Trustee of an amount which would be sufficient
(taking into account prior ranking claims, the likely or anticipated distribution to the
Financiers by the Insolvency Official and any likely payment to the Undertaking and Guarantee
Trust under clause 4) to discharge and satisfy the Finance Money Debt (Performing Subsidiary)
in full, compared to the risks of non-recovery, or delay in recovery of more than 12 months,
associated with the other Options (taking into account the conditions (if any) attached to
those other Options (as described in the Notice of Voting in Insolvency)); and
	 
	(d)	 	if one of more of the Options which satisfy the requirements of paragraph (a) (if approved
and implemented in the manner described in the Notice of Voting in Insolvency) are each
likely to result in the recovery by the Undertaking and Guarantee Trustee of an amount
sufficient to discharge and satisfy the Finance Money Debt (Performing Subsidiary) in full
within substantially the same period of time (taking into account prior ranking claims, the
likely or anticipated distribution to the Financiers by the Insolvency Official and any
likely payment to the Undertaking and Guarantee Trust under clause 4), which Option would
result in the amounts anticipated to be received by, or on behalf of, the Charitable Fund in
respect of the Compensation Debt (Performing Subsidiary) having a higher net present value
than the other Options having regard (among any other relevant factors) to any potential
future payment by the Performing Subsidiary, JHINV or a James Hardie Successor (under an
agreement similar in its effect to the Final Funding Agreement) in respect of part or all of
the Compensation Debt (Performing Subsidiary); and
	 
	(e)	 	if the vote relates to deferring or not deferring any action or extending or not extending
the Insolvency proceeding, which choice is likely to result in:






	 	(i)	 	a greater net recovery in respect of the Finance Money Debt (Performing
Subsidiary) (taking into account prior ranking claims, the likely or anticipated
distribution to the Financiers by the Insolvency Official and






			
	 	 	 
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	 	 	 	any likely payment to the Undertaking and Guarantee Trust under clause 4); or
	 
	 	(ii)	 	if either choice would result in the recovery by the Undertaking and
Guarantee Trustee of an amount sufficient to discharge and satisfy the Finance Money
Debt (Performing Subsidiary) in full (taking into account prior ranking claims, the
likely or anticipated distribution to the Financiers by the Insolvency Official and
any likely payment to the Undertaking and Guarantee Trust under clause 4), a greater
net recovery in respect of the Compensation Debt (Performing Subsidiary) (taking into
account prior ranking claims, the likely or anticipated distribution to the Financiers
by the Insolvency Official and any likely payment to the Undertaking and Guarantee
Trust under clause 4) within the next 12 months.






	8.5	 	Notice of determination by the Independent Expert




The Independent Expert shall send its determination, together with reasons and supporting
material, in writing to the Undertaking and Guarantee Trustee and the NSW Government within 10
Business Days of its appointment (or such shorter period as the Undertaking and Guarantee Trustee
may specify at the time of appointment of the Independent Expert having regard to the terms of the
Notice of Voting in Insolvency).





	8.6	 	Assistance to the Independent Expert




Subject to any duty of confidentiality or applicable law, the Undertaking and Guarantee
Trustee, the Financiers, the Performing Subsidiary, the Fund Trustee and the NSW Government must
promptly provide the Independent Expert with any information or assistance it reasonably requests
for the purpose of making its determination under clause 8.4.





	8.7	 	Determination by the Independent Expert final




The determination of the Independent Expert shall (in the absence of manifest error) be
final and binding on the Undertaking and Guarantee Trustee, each Financier, the Performing
Subsidiary, the Fund Trustee and the NSW Government.







			
	 	 	 
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	8.8	 	Consent of NSW Government required in certain circumstances






	(a)	 	Subject to clauses 8.9 and 8.10, but otherwise notwithstanding any other provision of
clauses 8.2 to 8.7 inclusive, the Undertaking and Guarantee Trustee must ensure that an
Attorney does not, without the prior written consent of the NSW Government, vote in respect
of the Specified Proportion of the Compensation Debt (Performing Subsidiary) in favour of any
arrangement, assignment, reconstruction, composition, option, proposal or other course of
action proposed in connection with the Performing Subsidiary’s Insolvency which, if approved
and implemented, would result in the extinguishment of any part of the Compensation Debt
(Performing Subsidiary (other than by payment in full or upon the final dissolution or
winding up of JHINV in circumstances where there will be an insufficiency of assets to enable
payment of any part of the Compensation Debt (Performing Subsidiary) taking into account
prior ranking claims, the distribution to the Financiers by the Insolvency Official and
payments to the Undertaking and Guarantee Trust under clause 4). An Attorney may vote the
balance of the Compensation Debt (Performing Subsidiary) in accordance with the instructions
of the Financiers given in accordance with the Finance Undertaking and Guarantee (Performing
Subsidiary) (or, in the absence of such instructions, as the Undertaking and Guarantee
Trustee directs).
	 
	(b)	 	Where there are two or more Options, the Undertaking and Guarantee Trustee must appoint and
obtain advice from an Independent Expert in accordance with clauses 8.3 and 8.4 and, provided
that the Independent Expert has had due regard to the matters specified in clause 8.4, the
Undertaking and Guarantee Trustee must, subject to clauses 8.2(c), 8.9 and 8.10, ensure that
an Attorney votes the Specified Proportion of the Compensation Debt (Performing Subsidiary)
in favour of the Preferred Option. An Attorney may vote the balance of the Compensation Debt
(Performing Subsidiary) in accordance with the instructions of the Financiers given in
accordance with the Finance Undertaking and Guarantee (Performing Subsidiary).






	8.9	 	Defaulting or absent Undertaking and Guarantee Trustee




If:





	(a)	 	a court of competent jurisdiction has determined that the Undertaking and Guarantee Trustee
is in breach of, or default under, this deed; or





			
	 	 	 
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	(b)	 	there is no Person acting as trustee under the Finance Undertaking and Guarantee
(Performing Subsidiary),




then for so long as such breach or default continues and remains unremedied, or until a Person is
appointed as a New Undertaking and Guarantee Trustee in accordance with clause 7.6, as the case may
be, the Compensation Parties may exercise any vote in any Insolvency proceeding in respect of the
Compensation Debt (Performing Subsidiary) which would otherwise be exercised by an Attorney.





	8.10	 	Residual Power




If the Undertaking and Guarantee Trustee is obliged by reason of this clause 8 to ensure
that an Attorney votes in a manner recommended by the Independent Expert, the Undertaking and
Guarantee Trustee may cause the Attorney to vote in another manner approved by the NSW Government.





	9.	 	CHANGES TO RIGHTS






	9.1	 	Rights of the Financiers are protected






	(a)	 	Rights given to or for the benefit of the Financiers under this deed, and the
obligations of each Compensation Party and the NSW Government under it, are not affected by
any act or omission by a Compensation Party, the NSW Government, the Undertaking and
Guarantee Trustee, any Financier or any other Person or by any other act, other matter or
thing whatsoever, whether negligent or not, except as agreed to in writing by the Undertaking
and Guarantee Trustee. For example, those rights and liabilities are not affected by:






	 	(i)	 	any act or omission:






	 	A.	 	varying or replacing any arrangement under which any
Finance Money Debt (Performing Subsidiary) or Compensation Debt (Performing
Subsidiary) is expressed to be owing, such as by increasing a facility limit
or extending the term;
	 
	 	B.	 	releasing or discharging the Performing Subsidiary or any
Security Provider (including discharge by operation of law) or giving them a
concession (such as more time to pay);





			
	 	 	 
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	 	C.	 	releasing any Person who gives a guarantee or indemnity in
connection with any of the Performing Subsidiary’s obligations;
	 
	 	D.	 	releasing, losing the benefit of, or not obtaining any
Security Interest or negotiable instrument;
	 
	 	E.	 	by which the obligations of a Compensation Party, the NSW
Government, the Performing Subsidiary or any Security Provider may not be
enforceable;
	 
	 	F.	 	by which any Person who was intended to guarantee or
provide a Security Interest securing all or part of the Finance Money Debt
(Performing Subsidiary) does not do so, or does not do so effectively;
	 
	 	G.	 	by which a Compensation Party or the NSW Government is
discharged from its obligations to the Financiers by operation of law;
	 
	 	H.	 	by which any Security Interest which could be registered is
not registered; or
	 
	 	I.	 	any other thing causing any prejudice (including material
prejudice);






	 	(ii)	 	a Person dealing in any way with a Security Interest, guarantee, indemnity,
judgment or negotiable instrument;
	 
	 	(iii)	 	the death, mental or physical disability, incapacity, Insolvency or any
legal limitation of any Person including the Performing Subsidiary, a Compensation
Party or the NSW Government;
	 
	 	(iv)	 	changes in the membership, name or business of any Person;
	 
	 	(v)	 	the Performing Subsidiary opening an account with any Financier;
	 
	 	(vi)	 	acquiescence or delay by any Financier or any other Person;





			
	 	 	 
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	 	(vii)	 	an assignment of rights or a novation in connection with all or part of the
Finance Money Debt (Performing Subsidiary) or the Compensation Debt (Performing
Subsidiary);
	 
	 	(viii)	 	the acceptance of the repudiation of, or termination of, any Finance Document or any
other document or agreement; or
	 
	 	(ix)	 	any payment to a Financier, including any payment which at the payment date
or at any time after the payment date is, in whole or part, illegal, void, voidable,
avoided or unenforceable.






	 	 	This clause applies regardless of whether the Performing Subsidiary, a Compensation Party
or the NSW Government is aware of, has consented to or is given notice of any act,
omission, matter or thing referred to in this clause. This clause does not limit the
obligations of a Compensation Party or the NSW Government under this deed.
	 
	(b)	 	Subject to this deed, the Financiers may act freely in their interests in relation to any
matter concerning the Finance Money Debt (Performing Subsidiary) without regard to the
interests of a Compensation Party or the NSW Government or the terms of the Compensation Debt
(Performing Subsidiary) and without incurring any liability to a Compensation Party or the
NSW Government.






	9.2	 	Payments




The Fund Trustee and the NSW Government agree to make any payments required under this deed:





	(a)	 	to, or as directed by, the Undertaking and Guarantee Trustee;
	 
	(b)	 	in full without set off or counterclaim, and without any deduction in respect of Taxes
unless prohibited by law; and
	 
	(c)	 	in the currency in which it receives or recovers payment in respect of the Compensation
Debt (Performing Subsidiary).





			
	 	 	 
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	9.3	 	Reinstatement of rights




Under any law relating to Insolvency, a Person may claim that a transaction (including a
payment) in connection with this deed or the Finance Money Debt (Performing Subsidiary) is void or
voidable. If such a claim is made and upheld, conceded or compromised, then the Financiers are
immediately entitled as against each Compensation Party and the NSW Government to the rights under
this deed in respect of the Finance Money Debt (Performing Subsidiary) to which they were entitled
immediately before the transaction. On request from the Financiers, each Compensation Party and
the NSW Government agrees to do anything reasonably required and at the cost of the Financiers
(including signing any document) to restore to the Financiers any right the Financiers held under
this deed immediately before the transaction.



This clause 9.3 applies whether or not the Undertaking and Guarantee Trustee or a Financier, knew,
or ought to have known, that the transaction would or may be void or voidable.





	9.4	 	Set-off




A Financier may set off any amount due for payment by the Financier to a Compensation Party
against any amount due for payment by that Compensation Party to the Financier. This does not
restrict any right of set-off which may arise at law.





	9.5	 	Discretion in exercising rights




A Financier 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.





	9.6	 	Partial exercising of rights




If any party or a Financier does not exercise a right or remedy fully or at a given time,
that party or the Financier (as the case may be) may still exercise it later.





	9.7	 	Remedies cumulative




The rights and remedies of each party and the Financiers under this deed are in addition to
other rights and remedies given by law independently of this deed.






 
			
	 	 	 
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	9.8	 	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 the other parties.



For the avoidance of doubt, but subject to any requirement for the Undertaking and Guarantee
Trustee to obtain instructions and/or consent from all or a specified majority of the Financiers as
referred to in clause 7.3, this clause 9.8 does not require a Financier to sign any such waiver or
variation.





	10.	 	INCONSISTENT LAW






	10.1	 	Inconsistent law




To the extent permitted by law, this deed prevails to the extent it is inconsistent with any
law.





	10.2	 	Supervening legislation




Any present or future legislation which operates to vary the obligations of a Compensation
Party or the NSW Government in connection with this deed with the result that the Financiers’
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.





	11.	 	NOTICES






	(a)	 	A notice, approval, consent, nomination or other communication (including a Financier
Nomination Letter) (Communication) to a Person relating to this deed:






	 	(i)	 	must state that it relates to this deed and state the relevant clause in this
deed;
	 
	 	(ii)	 	must be signed by an Authorised Officer;
	 
	 	(iii)	 	must be in legible writing; and
	 
	 	(iv)	 	must be in English.





			
	 	 	 
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	(b)	 	Communications must be addressed as follows:
	 
	 	 	If the Communication is to NSW Government then it must be addressed as follows:





	 	 	 

	 Name:
	 	The State of New South Wales, c/- The Cabinet Office
	 	 	 
	 Attention:
	 	Deputy Director-General (Legal)
	 	 	 
	 Address:
	 	Level 39, Governor Macquarie Tower, Farrer Place, Sydney, NSW 2000
	 	 	 
	 Facsimile:	 	(61) (02) 9228 3062







	 	 	unless the NSW Government has notified the other parties of new contact details, in which
case the Communication must be addressed in the manner last notified by the NSW Government.
	 
	 	 	If the Communication is to the Fund Trustee then it must be addressed as follows:






	 	 	 

	 Name:
	 	Asbestos Injuries Compensation Fund Limited
	 	 	 
	 Attention:
	 	Chairman
	 	 	 
	 Address:
	 	Level 3, 22 Pitt Street, Sydney, NSW 2000
	 	 	 
	 Facsimile:
	 	(61) (02) 8274 5217







	 	 	unless the Fund Trustee has notified the other parties of new contact details, in which
case the Communication must be addressed in the manner last notified by the Fund Trustee.
	 
	 	 	A copy of any such Communication to the Fund Trustee must promptly be sent to the NSW
Government in accordance with this clause 11.
	 
	 	 	If the Communication is to the Performing Subsidiary then it must be addressed as follows:





	 	 	 

	 Name:
	 	James Hardie 117 Pty Limited
	 	 	 
	 Attention:
	 	The Chairman and the Chief Financial Officer
	 	 	 
	 Addresses:
	 	Atrium, 8th floor, Strawinskylaan 3077, 1077ZX Amsterdam, The Netherlands






			
	 	 	 
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	 	 	and
	 	 	 
	 	 	Level 3, 22 Pitt Street, Sydney, NSW 2000
	 	 	 
	 Facsimile:
	 	(61) (02) 8274 5218







	 	 	unless the Performing Subsidiary has notified the other parties of new contact details, in
which case the Communication must be addressed in the manner last notified by the
Performing Subsidiary.
	 
	 	 	If the Communication is to the Undertaking and Guarantee Trustee then it must be addressed
as follows:





	 	 	 

	 Name:
	 	AET Structured Finance Services Pty Limited
	 	 	 
	 Attention:
	 	Corporate Trust
	 	 	 
	 Address:
	 	80 Alfred Street, Milsons Point NSW 2061
	 	 	 
	 Facsimile:
	 	(61) (02) 9028 5942







	 	 	unless the Undertaking and Guarantee Trustee has notified the other parties of new contact
details, in which case the Communication must be addressed in the manner last notified by
the Undertaking and Guarantee Trustee.
	 
	 	 	If the Communication is to a Financier then it must be addressed as specified in the
relevant Financier Nomination Letter, unless the Financier has subsequently notified the
other parties of new contact details, in which case the Communication must be addressed in
the manner last notified by the Financier.
	 
	 	 	If the Communication is to a Replacement Trustee or a New Undertaking and Guarantee Trustee
then it must be addressed as specified in the relevant Accession Deed, unless the
Replacement Trustee or New Undertaking and Guarantee Trustee has subsequently notified the
other parties of new contact details, in which case the Communication must be addressed in
the manner last notified by the Replacement Trustee or New Undertaking and Guarantee
Trustee.
	 
	(c)	 	If the Communication is sent by the sender it shall be deemed to be received by the
receiver:






	 	(i)	 	if the Communication is hand delivered, upon delivery to the receiving party;





			
	 	 	 
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	 	(ii)	 	if the Communication is sent by facsimile, upon the successful completion of
the relevant transmission;
	 
	 	(iii)	 	if the Communication is sent by registered mail within Australia, 2 business
days after the registration of the notice of posting; and
	 
	 	(iv)	 	if the Communication is sent by ordinary mail within Australia, 3 business
days from then including the date of postage,






	 	 	provided that where a notice to a party must be copied to another Person, each such notice
will only be given at the time the last notice is received.
	 
	(d)	 	For the avoidance of doubt, a Communication shall not be sent by electronic email.






	12.	 	GOVERNING LAW AND JURISDICTION






	12.1	 	Governing law




This deed is governed by the laws of New South Wales.





	12.2	 	Submission to jurisdiction




Each party and Financier submits to the non-exclusive jurisdiction of courts exercising
jurisdiction in New South Wales, and waives any right to claim that those courts are an
inconvenient forum.





	12.3	 	Service






	(a)	 	A document may be served on a party or a Financier by delivering it to that party at
its address in clause 11.
	 
	(b)	 	This clause 12.3 does not prevent another mode of service.






	13.	 	COUNTERPARTS




This deed may be executed in any number of counterparts. All counterparts together will be
taken to constitute one instrument.






 
			
	 	 	 
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	14.	 	GENERAL






	14.1	 	Severability






	(a)	 	If a provision of this deed is invalid, illegal or unenforceable, then that provision
to the extent of the invalidity, illegality or unenforceability must be ignored in the
interpretation of this deed.
	 
	(b)	 	All the other provisions of this deed remain in full force and effect.






	14.2	 	No waiver






	(a)	 	A party’s agreement to waive a right or entitlement under this deed is only effective
if that party gives written notice of that waiver to the party seeking the benefit of the
waiver.
	 
	(b)	 	Waiver by a party of anything required to be done under this deed is not a waiver of any
other thing required to be done under this deed.
	 
	(c)	 	Paragraph (b) applies whether the other act or thing required to be done under this deed is
of the same or a different nature as the act or thing waived.
	 
	(d)	 	A failure or delay in exercising a right arising from a breach of this deed is not a waiver
of that right.
	 
	(e)	 	The parties must not waive this clause 14.






	14.3	 	Further assurances




Each party and Financier must do everything necessary to give full effect to this deed.





	14.4	 	Entire agreement






	(a)	 	This deed embodies the entire agreement between the Fund Trustee and the NSW Government
on the one part, and the Undertaking and Guarantee Trustee and the Financiers on the other
part.
	 
	(b)	 	This deed supersedes all previous agreements.





			
	 	 	 
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	14.5	 	Cumulative rights




A right, power, discretion and remedy arising out of this deed in favour of a party or a
Financier:





	(a)	 	is cumulative; and
	 
	(b)	 	does not diminish any other right, power, discretion and remedy of any party or a
Financier.






	14.6	 	Certificates




A Financier or the Undertaking and Guarantee Trustee may give a Compensation Party or the
NSW Government a certificate about an amount payable or other matter in connection with this deed,
the Finance Undertaking and Guarantee (Performing Subsidiary) or a Finance Document. The
certificate is sufficient evidence of the amount or matter, unless it is proved to be incorrect.





	14.7	 	Amendment of this deed




The parties can only vary a term of this deed if the variation is in writing and all parties
execute an amending deed.





	14.8	 	Confidentiality




Subject to the exceptions set out below, each party shall, and shall procure that its
employees, officers, agents and advisers (each a “Representative”) keep strictly
confidential all information provided to that party or its Representatives in relation to, or in
connection with Original Final Funding Agreement and the Final Funding Agreement, this deed and the
other Related Agreements and each party shall be responsible for all acts and omissions of its
Representatives in relation to such information.



A party (and its Representatives) may disclose information under or obtained in connection with the
Original Final Funding Agreement and the Final Funding Agreement, this deed and the other Related
Agreements as may be necessary to:





	(a)	 	the party’s related bodies corporate, professional advisors, bankers, financial advisors
and financiers, if those persons undertake to keep the information disclosed confidential;





			
	 	 	 
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	(b)	 	comply with any applicable law or requirement of any regulatory body (including any
relevant stock exchange) and any corporate governance guidelines adopted by such bodies which
are adopted by such party;
	 
	(c)	 	any of its employees to whom it is necessary to disclose the information, if that employee
undertakes to keep the information confidential;
	 
	(d)	 	any Person as permitted by the written agreement of all parties; or
	 
	(e)	 	any Person if the content of the disclosure is or has become generally available to the
public otherwise than by breach of this deed.






	15.	 	UNDERTAKING AND GUARANTEE TRUSTEE LIMITATION OF LIABILITY






	15.1	 	Limitation of liability






	(a)	 	The Undertaking and Guarantee Trustee enters into this deed in its capacity as trustee
for the Financiers under the Undertaking and Guarantee Trust and will not be liable in any
capacity other than as trustee for the Financiers under the Undertaking and Guarantee Trust.
	 
	(b)	 	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.
	 
	(c)	 	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 Guarantee Trust, including
seeking the appointment of a receiver (except in relation to property of the Guarantee
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 Guarantee Trust).





			
	 	 	 
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	(d)	 	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 Undertaking and
Guarantee Trust held by the Undertaking and Guarantee Trustee.
	 
	(e)	 	The provisions of this clause 15.1 will not apply to any obligation or liability of the
Undertaking and Guarantee Trustee to the extent to which such obligation or liability:






	 	(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.






	(f)	 	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 Undertaking and Guarantee Trust or by any other act
or omission of any party (other than the Undertaking and Guarantee Trustee) or any other
person having obligations relating to the Undertaking and Guarantee Trust.
	 
	(g)	 	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 paragraph (g) 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





			
	 	 	 
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	 	 	 	selection, appointment, oversight or supervision (according to the standard set
out in clause 7.7) of any such attorney, agent or delegate; and
	 
	 	(ii)	 	in accordance with clause 7.8.1(j), the Undertaking and Guarantee Trustee
must take all reasonable steps to recover compensation from any such attorney, agent
or delegate.






	15.2	 	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 awareness or actual notice of
that thing, or grounds or reason to believe that thing (and similar references will be interpreted
in this way).





	15.3	 	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.





			
	 	 	 
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Executed as a deed



Each person executing this deed states that the person has no notice of the revocation, termination
or suspension of the authority pursuant to which the person executes this deed.




	 	 	 	 	 
	Signed, sealed and delivered by The Honourable Robert John Debus MP, 


Attorney-General of New South Wales, 


for The State of New South Wales

 	 
	/s/ Robert J. Debus
 	 	 
	 



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




	 	 	 	 	 	 	 	 	 	 	 

	/s/ P. W. Baker	 	 	 	/s/ Joanne Marchione	 	 
	 	 	 	 	 	 	 
	Name:  

	 	P. W. Baker
	 	 	 	Name:  
	 	Joanne Marchione	 	 
	Title:

	 	Director
	 	 	 	Title:
	 	Director	 	 






Signed, sealed and delivered by James Hardie 117 Pty Limited




	 	 	 	 	 	 	 	 	 	 	 

	/s/ Bruce J. W. Potts	 	 	 	/s/ Donald A. J. Salter	 	 
	 	 	 	 	 	 	 
	Name:  

	 	Bruce J. W. Potts
	 	 	 	Name:  
	 	Donald A. J. Salter	 	 
	Title:

	 	Director
	 	 	 	Title:
	 	Director	 	 






			
	 	 	 
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Signed, sealed and delivered by AET Structured Finance Services Pty Limited




	 	 	 	 	 	 	 	 	 	 	 

	/s/ Yvonne Drake	 	 	 	/s/ Stuart Howard	 	 
	 	 	 	 	 	 	 
	Name:  

	 	Yvonne Drake
	 	 	 	Name:  
	 	Stuart Alexander Howard	 	 
	Title:

	 	Authorised Officer
	 	 	 	Title:
	 	Authorised Officer	 	 






[Common Seal of AET Structured Finance

Services Pty Limited A.B.N. 12 106 424 088]




			
	 	 	 
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SCHEDULE 1




FINANCIER NOMINATION LETTER



[Date]





	To: 	 	[Financier]





Performing Subsidiary Intercreditor Deed — Financier Nomination Letter



We refer to the Performing Subsidiary Intercreditor Deed between the State of New South
Wales, Asbestos Injuries Compensation Fund Limited, ourselves and AET Structured Finance Services
Pty Limited (Undertaking and Guarantee Trustee) dated [insert date] (Performing
Subsidiary Intercreditor Deed).



For the purposes of the Performing Subsidiary Intercreditor Deed, on and from the date of this
letter:



We nominate the following document as a finance document:





	Name: 	 	[insert details]
	 
	Date: 	 	[insert details]
	 
	Parties: 	 	[insert details]




The agreement described above, and each document named or referred to as a [“Finance Document”] in
that agreement, is a Finance Document for the purposes of the Performing Subsidiary Intercreditor
Deed; and



We nominate you as a “Financier” in relation to each Finance Document referred to above.



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



Clauses 1 (Interpretation) and 12 (Governing law and Jurisdiction) of the
Performing Subsidiary Intercreditor Deed apply to this letter as they were fully set out in this
letter.




			
	 	 	 
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Executed as deed poll for and on behalf of



JAMES HARDIE 117 PTY LIMITED



by its Authorised Officer:



Name:



Title:




Endorsement by the Undertaking and Guarantee Trustee:



We undertake that, if required by clause 2.2(b) of the Performing Subsidiary Intercreditor Deed, we
will send a copy of the signed Financier Nomination Letter to the State of New South Wales and the
Fund Trustee (each as defined in the Performing Subsidiary Intercreditor Deed).



Executed as a deed poll for and on behalf of



AET STRUCTURED FINANCE SERVICES PTY LIMITED



by its Authorised Officer:



Name:



Title:




Acceptance by the nominated Financier



We accept and agree to the above nomination.



We acknowledge becoming entitled to the benefit of the Performing Subsidiary Intercreditor Deed and
incurring obligations and giving rights under the Performing Subsidiary Intercreditor Deed for
valuable consideration received from the parties to the Performing Subsidiary Intercreditor Deed.



We further acknowledge that the Performing Subsidiary Intercreditor Deed does not:





	(a)	 	affect the status or ranking of the Compensation Debt (Performing Subsidiary) as an
ordinary unsecured claim again the Performing Subsidiary;





			
	 	 	 
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	(b)	 	affect the status or ranking of the Compensation Debt (Performing Subsidiary) as against
the other debts (including the Finance Money Debt (Performing Subsidiary)) or the other
creditors of the Performing Subsidiary (including the Financiers) in an Insolvency of the
Performing Subsidiary.




We accept the benefit and obligations of the Performing Subsidiary Intercreditor Deed, and agree
to:





	(i)	 	be bound by the terms of that deed;
	 
	(ii)	 	promptly respond to any requests from the Undertaking and Guarantee Trustee for (A)
instructions as to the manner in which the Undertaking and Guarantee Trustee should exercise
any of its rights or benefits under the Performing Subsidiary Intercreditor Deed, or (B) any
consent required from the Financiers (and agree not to unreasonably withhold or delay such
consent); and
	 
	(iii)	 	agree that if we fail to promptly so respond, the Undertaking and Guarantee Trustee may
exercise such rights or benefits in accordance with the instructions of the requisite majority
of the Financiers who do so respond in accordance with the Finance Undertaking and Guarantee
(Performing Subsidiary).




Executed as a deed poll for and on behalf of



[Insert name of Financier]



by its Authorised Officer:



Name:



Title:




			
	 	 	 
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SCHEDULE 2




ACCESSION DEED



[Date]





	To: 	 	[Existing parties to the Performing Subsidiary Intercreditor Deed]





Performing Subsidiary Intercreditor Deed — Accession as [Replacement Trustee /
New Undertaking and Guarantee Trustee]



We refer to the Performing Subsidiary Intercreditor Deed between the State of New South
Wales, Asbestos Injuries Compensation Fund Limited, James Hardie 117 Pty Limited and AET Structured
Finance Services Pty Limited (Undertaking and Guarantee Trustee) dated [insert date]
(Performing Subsidiary Intercreditor Deed).



We acknowledge becoming a party to the Performing Subsidiary Intercreditor Deed and incurring
obligations and giving rights under the Performing Subsidiary Intercreditor Deed for valuable
consideration received from the other parties to the Performing Subsidiary Intercreditor Deed.



We hereby undertake, for the benefit of existing parties to the Performing Subsidiary Intercreditor
Deed, that on and from the date of this letter, we will perform and comply with all the duties and
obligations [of a Replacement Trustee and the Fund Trustee] [expressed to be assumed by [a
Replacement Trustee / New Undertaking and Guarantee Trustee]] under the Performing Subsidiary
Intercreditor Deed.



Clauses 1 (Interpretation) and 12 (Governing law and Jurisdiction) of the
Performing Subsidiary Intercreditor Deed apply to this letter as they were fully set out in this
letter.



Executed as a deed poll for and on behalf of



[NAME OF REPLACEMENT TRUSTEE / NEW GUARANTEE TRUSTEE]



by its Authorised Officer:



Name:



Title:




			
	 	 	 
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SCHEDULE 3




FORM OF POWER OF ATTORNEY



	 	 	 

	Appointer:

	 	[Asbestos Injuries Compensation Fund Limited in its
capacity as trustee for the Charitable Fund] / [[name of
replacement trustee] as replacement trustee of the
Charitable Fund] / [name of New Person] as [successor] to
[Asbestos Injuries Compensation Fund Limited] / [name of
replacement trustee] in its capacity as trustee for the
Charitable Fund] ([ABN]) of [address of Appointer]
	 
	 	 
	Attorney:

	 	AET Structured Finance Services Pty Limited (ABN 12
106 424 088) (Undertaking and Guarantee
Trustee) of 80 Alfred Street, Milsons Point NSW
2061 and each Authorised Officer of the Undertaking and
Guarantee Trustee from time to time individually
	 
	 	 
	Date:

	 	[date of power of attorney]







	1.	 	APPOINTMENT




Subject to clause 4, the Appointer irrevocably and for valuable consideration appoints the
Attorney to be the Appointer’s attorney. This appointment is of each Attorney individually and any
two or more of them jointly.





	2.	 	WHAT THE APPOINTER MAY DO




The Attorney may:





	(a)	 	exercise the right to cast all and any votes attaching to, or to be cast in respect of, the
Compensation Debt (Performing Subsidiary) during the Insolvency of the Performing Subsidiary
at, or in connection with, any meeting, proceeding or distribution concerning the Insolvency
of the Performing Subsidiary for so long as any Finance Money Debt (Performing Subsidiary)
remains outstanding and to the exclusion of the right of the Appointor to exercise all of any
such votes for so long as any Finance Money Debt (Performing Subsidiary) remains outstanding;
	 
	(b)	 	do anything necessary or incidental to such exercise including, without limitation, signing
and delivering documents;





			
	 	 	 
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	(c)	 	provide an original or copy of this power of attorney to an Insolvency Official for the
purpose of establishing the right and entitlement of the Attorney during the Insolvency of the
Performing Subsidiary to exercise the right to cast all and any votes attaching to, or to be
cast in respect of, the Compensation Debt (Performing Subsidiary) during the Insolvency of the
Performing Subsidiary at, or in connection with, any meeting, proceeding or distribution
concerning the Insolvency of the Performing Subsidiary; and
	 
	(d)	 	do anything which in the Attorney’s opinion is necessary or desirable to ensure the validity
and enforceability of this power of attorney under any applicable law (including, without
limitation, stamping or registering this power of attorney or filing this power of attorney
with any government authority).




Subject to the terms and conditions set out in the Performing Subsidiary Intercreditor Deed, the
Attorney may do these things in the name and on behalf of the Appointer or, if necessary or
desirable under any applicable law in the Attorney’s opinion, the Attorney’s name.





	3.	 	GENERAL
	 
	3.1	 	Attorney’s acts valid




Subject to the terms and conditions set out in the Performing Subsidiary Intercreditor Deed,
the Appointer declares that all acts, matters and things done by the Attorney in exercising powers
under this power of attorney and which are in accordance with the terms and conditions set out in
the Performing Subsidiary Intercreditor Deed, will be as valid and effective as if they had been
done by the Appointer.





	3.2	 	Benefit to the Attorney




The Attorney may exercise a power under this power of attorney even if:





	(a)	 	it involves a conflict of duty; or
	 
	(b)	 	the Attorney has a personal interest in the doing of that act.





			
	 	 	 
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	3.3	 	Governing law




This deed is governed by the law in force in New South Wales. Each party submits to the
non-exclusive jurisdiction of the courts of that place.





	4.	 	COMPLIANCE WITH PERFORMING SUBSIDIARY INTERCREDITOR DEED




Notwithstanding any other provision of this Power of Attorney, the Attorney must exercise
the rights granted to it under this Power of Attorney in accordance with, and subject to, the terms
and conditions set out in the Performing Subsidiary Intercreditor Deed.





	5.	 	INTERPRETATION




In this power of attorney:



Authorised Officer has the meaning given to it in the Performing Subsidiary
Intercreditor Deed.



Charitable Fund has the meaning given to it in the Final Funding Agreement.



Compensation Debt (Performing Subsidiary) has the meaning given to it in the
Performing Subsidiary Intercreditor Deed.



Final Funding Agreement has the meaning given to it in the Performing Subsidiary
Intercreditor Deed.



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



Insolvency has the meaning given to it in the Performing Subsidiary
Intercreditor Deed.



Insolvency Official has the meaning given to it in the Performing Subsidiary
Intercreditor Deed.



Performing Subsidiary Intercreditor Deed means the Intercreditor Deed
between the State of New South Wales, Asbestos Injuries Compensation Fund Limited, James Hardie 117
Pty Limited and AET Structured Finance Services Pty Limited dated [insert date].




			
	 	 	 
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Performing Subsidiary has the meaning given to it in the Performing Subsidiary
Intercreditor Deed.



EXECUTED as a deed poll



Signed, sealed and delivered by [name of Appointer]




	 	 	 	 	 	 	 

	 
	 	 	 	 	 	 
	 

[name of signatory]

	 	  
	 	 

[name of signatory]
	 	  
	[capacity of signatory]

	 	 	 	[capacity of signatory]	 	 






			
	 	 	 
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ATTACHMENT A




DICTIONARY AND INTERPRETATION



(CLAUSE 1)




	1.	 	DICTIONARY




In this deed:



Accession Deed means a letter (executed as a deed poll) in the form of Schedule 2 to
this deed.



Annual Payment has the meaning given to it in the Final Funding Agreement.



Attorney has the meaning given to it in clause 8.1(a).



Audited Financial Statements means, in respect of a Financial Year, the audited
consolidated financial statements of the Performing Subsidiary for that Financial Year prepared in
accordance with the generally accepted accounting principles with respect to which the Performing
Subsidiary prepares its published financial reports, in each case consistently applied throughout
that Financial Year.



Authorised Officer means:





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





			
	 	 	 
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	 	 	the Fund Trustee, the NSW Government, the Undertaking and Guarantee Trustee and the
Financiers as an Authorised Officer for the purposes of this deed, and whose specimen
signature is provided with such notification; and
	 
	(d)	 	in the case of the NSW Government, any person who is a member of the Chief Executive
Service or the Senior Executive Service of the New South Wales Public Service at the time the
relevant act pursuant to this deed is to be undertaken. The Undertaking and Guarantee Trustee
may rely on a statement from any person it reasonably believes is a member of the Chief
Executive Service or the Senior Executive Service of the New South Wales Public Service that
such person is in fact a member of the Chief Executive Service or the Senior Executive
Service of the New South Wales Public Service.




Business Day means a day on which banks are open for business excluding Saturdays,
Sundays and public holidays in Sydney, Australia.



Charitable Fund has the meaning given to it in the Final Funding Agreement.



Communication has the meaning given to it in clause 11(a).



Compensation Debt (Performing Subsidiary) means at any time all amounts then due for
payment or which will or may become due for payment or that remain unpaid by the Performing
Subsidiary in connection with the Final Funding Agreement, provided that once such amounts have
been ascribed a value by an Insolvency Official for the purposes of an Insolvency of the Performing
Subsidiary (including acceptance of a proof of debt for such amounts or a lesser amount by an
Insolvency Official), a reference to the Compensation Debt (Performing Subsidiary) is a reference
to amounts having that value, provided that if interest is payable on such amount under applicable
law, the Compensation Debt (Performing Subsidiary) also includes such interest as is payable under
applicable law (including all interest accruing on or subsequent to the filing of a petition
initiating any proceeding in bankruptcy or insolvency or any like proceeding whether or not such
interest is an allowed claim in such proceeding).



For the avoidance of doubt, the Compensation Debt (Performing Subsidiary) is only payable once to
the Fund Trustee or the NSW Government for the sole benefit of the Fund Trustee in accordance with
the terms of the Final Funding Agreement and the Related Agreements and nothing in this deed
obliges the Performing Subsidiary to pay the same amount to more than one Person.




			
	 	 	 
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Compensation Parties means subject to clause 5.2, the Fund Trustee and, the NSW
Government.



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.



Cross Guarantee (Fund Guaranteed Money) means a guarantee or indemnity (or other
covenant to secure the satisfaction of any payment or obligation) given by a member of the
Performing Subsidiary Group (other than the Performing Subsidiary) (Subsidiary
Guarantor):





	(a)	 	in favour of the Fund Trustee in respect of the Compensation Debt (Performing
Subsidiary);
	 
	(b)	 	on substantially the same terms as a guarantee or indemnity (or other covenant to
secure the satisfaction of any payment or obligation) given by the Subsidiary Guarantor in
respect of financial accommodation provided by a Person to another member of the Performing
Subsidiary Group;
	 
	(c)	 	which terminates when the guarantee, indemnity or other covenant referred to in
paragraph (b) terminates whether by express provision or by operation of law,




provided that the Fund Trustee and the NSW Government have entered into a deed on substantially the
same terms as this deed in relation to the benefit of any such guarantee or indemnity (or other
covenant to secure the satisfaction of any payment or obligation).



Deed of Accession has the meaning given to it in the Final Funding Agreement.



Discretionary Fund has the meaning given to it in the Final Funding Agreement.



Excluded Lender means any Person to the extent that such Person:





	(a)	 	is a trade creditor;





			
	 	 	 
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	(b)	 	has provided any debt on terms that it is to be subordinated to the Compensation Debt
(Performing Subsidiary);
	 
	(c)	 	has provided any debt or other borrowing which arises pursuant to a derivative:






	 	(i)	 	relating to equity interests in a member of the Performing Subsidiary Group;
or
	 
	 	(ii)	 	which is recognised as equity under applicable accounting standards;






	(d)	 	is a member of the Performing Subsidiary Group;
	 
	(e)	 	is or becomes a creditor in respect of an amount owing to such Person in its capacity as a
shareholder of the Performing Subsidiary or another member of the Performing Subsidiary Group
otherwise than on arm’s length terms;
	 
	(f)	 	provides financial accommodation to a Controlled Entity of the Performing Subsidiary Group
and receives the benefit of a guarantee or indemnity (or other covenant to secure the
satisfaction of any payment or obligation) given by a the Performing Subsidiary Group member
(other than the Performing Subsidiary), where there is no Cross Guarantee (Fund Guaranteed
Money) provided to the Fund Trustee on substantially the same terms as the Guarantee; or
	 
	(g)	 	acquires the rights, as a creditor, of any such Person referred to in any of paragraphs (a)
to (f) inclusive or their assignees.




For avoidance of doubt, if a Person has acceded as a Financier in accordance with clause 2.2. in
relation to particular debt or borrowings which satisfies the criteria set out in clause 2.2 and
would not make the relevant Person an Excluded Lender (“Qualifying Debt”) and
separately has provided financial accommodation falling within the description of paragraph (f) of
this definition of Excluded Lender (“Non-Qualifying Debt”):





	(i)	 	that Person will only be an Excluded Lender in respect of the Non-Qualifying Debt and will
continue to be a Financier in respect of the Qualifying Debt; and
	 
	(ii)	 	if that Person waives or releases any rights it may have under any guarantee or indemnity
within the description of paragraph (f), then to the extent it would have been an Excluded
Lender by virtue of falling within paragraph (f) of this





			
	 	 	 
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	 	 	definition of Excluded Lender, that Person will cease to be an Excluded Lender in respect
of the relevant financial accommodation.




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 Document in relation to a Financier means each agreement to which the
Financier (whether or not together with any other Person) is a party under which liabilities are
owed by the Performing Subsidiary (or another member of the Performing Subsidiary Group the
performance of whose obligations has been guaranteed by the Performing Subsidiary) where such
liabilities are, or are required to be, included in the Performing Subsidiary Group’s financial
statements or notes thereto as debt or borrowings (including bank loans, letter of credit
facilities, derivatives and debt capital markets issues which are, or are required to be, so
included or noted) and which is nominated as a “Finance Document” in a Financier Nomination Letter.
For the avoidance of doubt, the Finance Undertaking and Guarantee (Performing Subsidiary) is not a
Finance Document.



Finance Money Debt (Performing Subsidiary) means at any time, the total of all amounts
then due for payment or which will or may become due for payment or that remain unpaid by the
Performing Subsidiary (or another member of the Performing Subsidiary Group where payment of such
amounts has been guaranteed by the Performing Subsidiary under the Finance Undertaking and
Guarantee (Performing Subsidiary)) to any Financier (for its own account or for the account of
another Person) pursuant to any Finance Document or to the Undertaking and Guarantee Trustee (for
the account of a Financier) under the Finance Undertaking and Guarantee (Performing Subsidiary),
provided that once such amounts have been ascribed a value by an Insolvency Official for the
purposes of an Insolvency of the Performing Subsidiary (including acceptance of a proof of debt for
such amounts or a lesser amount by an Insolvency Official), a reference to the Finance Money Debt
(Performing Subsidiary) is a reference to amounts having that value, as ascribed from time to time,
provided that in determining such value for the purposes of an Insolvency of the Performing
Subsidiary:





	(a)	 	if any Financier (for its own account or for the account of another Person) or the
Undertaking and Guarantee Trustee (for the account of a Financier):





			
	 	 	 
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	 	(i)	 	fails to lodge a proof of debt (or similar claim) in an Insolvency of the
Performing Subsidiary within the time provided for under applicable law (as such time
may be extended by a relevant Insolvency Official); or
	 
	 	(ii)	 	lodges a proof of debt (or similar claim) in an Insolvency of the Performing
Subsidiary and such proof of debt has not been accepted in whole or part by the
relevant Insolvency Official (and such decision is not subject to appeal to, or review
by, that Insolvency Official or another relevant Insolvency Official and the time for
commencing any such appeal, or requesting any such review, has passed),






	 	 	such amount shall be deemed to be zero or, in the case of subparagraph (ii), such amount
shall be deemed to be reduced to the extent that it is not accepted by the relevant
Insolvency Official;
	 
	(b)	 	if interest is payable on such amount under applicable law, the Finance Money Debt
(Performing Subsidiary) also includes such interest as is payable under applicable law
(including all interest accruing on or subsequent to the filing of a petition initiating any
proceeding in bankruptcy or insolvency or any like proceeding whether or not such interest is
an allowed claim in such proceeding);
	 
	(c)	 	if a Financier enters into, or is otherwise bound by, any conversion of debt to equity
(which is not also a distribution subject to paragraph (d) below), then Finance Money Debt
(Performing Subsidiary) shall be deemed to be reduced by the full amount of the face value of
the debt (and any applicable interest) so converted;
	 
	(d)	 	if a Financier receives any money or other property or any other right pursuant to a
Reconstruction Event, then Finance Money Debt (Performing Subsidiary) (and any applicable
interest) shall be deemed to be reduced by the full amount of the fair market value of the
money, property or right acquired as at the date of receipt; or
	 
	(e)	 	if any amount is received or due from a Person in respect of the Insolvency of JHINV or by
operation of the JHINV Intercreditor Deed and the amount so received or due is in whole or
part “Finance Money Debt” (as that term is defined in the JHINV Intercreditor Deed), then the
Finance Money Debt (Performing Subsidiary) shall be deemed to be reduced by that amount.





			
	 	 	 
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This definition applies:





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






	 	A.	 	the assignment was before, at the same time as, or after
the date of this deed; or
	 
	 	B.	 	the Performing Subsidiary or another member of the
Performing Subsidiary Group consented to or was aware of the assignment; or
	 
	 	C.	 	the assigned obligation was secured;






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






	 	A.	 	the Performing Subsidiary or another member of the
Performing Subsidiary Group consented to or was aware of the assignment; or
	 
	 	B.	 	any of the Finance Money Debt (Performing Subsidiary) was
previously unsecured; or





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




Finance Undertaking and Guarantee (Performing Subsidiary) means the deed dated on or
about the date of this deed given by the Performing Subsidiary, among other things, providing
undertakings to, and guaranteeing the obligations of other members of the Performing Subsidiary
Group in favour of, the Undertaking and Guarantee Trustee and the Financiers.



Financial Year means a year ending on 31 March, or if there is any change from time to
time to the Financial Year of the Performing Subsidiary Group, the twelve-month period that ends on
the new end date adopted by the Performing Subsidiary except that the first such Financial Year
after that change shall be a period of not less than six months and not greater than 18 months
ending on the new end date.



Financier means each Person nominated as a “Financier” in a Financier Nomination
Letter in accordance with clause 2.2(b) of this deed. A reference to a “Financier” includes the
Undertaking and Guarantee Trustee or another agent or trustee acting on behalf of the Financier,
but excludes an Excluded Lender.



Financier Nomination Letter means a letter (executed as a deed poll by each party to
it) in the form set out in Schedule 1 to this deed and, for the avoidance of doubt, includes,
without limitation, such a letter provided to any successor or permitted assign of a Financier.



Fund Trustee includes any Replacement Trustee.



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 Expert means any Person who:





	(a)	 	has relevant and substantive experience and expertise in insolvency proceedings generally
and, if applicable, financial restructuring appropriate to undertake the determination
referred to in clause 8;





			
	 	 	 
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	(b)	 	except to the extent he or she is entitled to be paid fees or reimbursed or indemnified for
costs and expenses by the NSW Government in accordance with this deed, has no interest or
duty which to his or her knowledge conflicts or may conflict with his or her functions as
contemplated under this deed; and
	 
	(c)	 	is not a member of a firm, or a director or employee of a firm or a body owned by the firm,
performing any role as advisor, banker, custodian or trustee to the JHINV Group or (except
for roles undertaken in the ordinary course of business for state owned business enterprises)
the NSW Government during a period of 3 years prior to the date of appointment under clause
8.




Insolvency Event means, in respect of a Person, the occurrence in respect of that
Person of any one or more of the events referred to in paragraphs (a) to (h) of the definition of
“Insolvent” .



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 the Person:





	(a)	 	admits in writing its inability to pay its debts generally as they become due (otherwise then
as contemplated in clause 16.6 of the Final Funding Agreement);
	 
	(b)	 	was established under Dutch law and files a petition with any court in the Netherlands in
relation to its bankruptcy (faillissement) or seeking an order for a suspension of payments
(surseance van betaling);
	 
	(c)	 	files, or consents by answer or otherwise to the filing against it of, a petition for relief
or insolvent reorganisation or insolvent arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any bankruptcy, insolvency, insolvent reorganisation,
insolvent moratorium or other similar law of any jurisdiction (including, without limitation,
a filing by the Person under Chapter 7 or Chapter 11 of the US Bankruptcy Code), provided that
where the filing is a filing under Chapter 11 of that Code, the Person:






	 	(i)	 	is at the time of filing unable to pay its debts generally as and when they
become due; or
	 
	 	(ii)	 	in the case of JHINV, after it makes such a filing, fails to pay a JHINV
Contribution or other amount under the JHINV Guarantee when such payment would (but
for the moratorium granted as a result of that filing) have been due for 30 days after
that due date,





			
	 	 	 
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	 	 	and also provided that, in any such filing under Chapter 11 of that Code a Person is
Insolvent no later than the earliest date as of which creditors may vote on any matter or
accept or reject a plan of reorganisation;
	 
	(d)	 	makes an assignment for the benefit of its creditors generally;
	 
	(e)	 	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;
	 
	(f)	 	consents to the appointment of an insolvency administrator or such an insolvency
administrator is appointed and that appointment is not terminated within 28 days;
	 
	(g)	 	is adjudicated as insolvent or to be liquidated, in each case, by a court of competent
jurisdiction; or
	 
	(h)	 	is subject to a Wind-Up Event,




and Insolvency has a corresponding meaning.



James Hardie Successor means any entity which will or might pursuant to a
restructuring or by any other transaction proposed under, or in connection with, the Insolvency of
JHINV acquire the whole or a substantial part of the business or assets of a member of the JHINV
Group and which offers or acknowledges an entitlement of the shareholders of JHINV to become
shareholders of that entity (disregarding any shareholders to whom it is illegal in their
jurisdiction of residence to become such shareholders).



JHIL has the meaning specified in Recital A.



JHINV means James Hardie Industries N.V. (ARBN 097 829 895) a limited liability
company incorporated in The Netherlands, with its corporate seat in Amsterdam, and having its
registered office at Atrium, Unit 04-07, Strawinskylaan 3077, 1077 ZX Amsterdam, The Netherlands
(with its Australian registered office at of Level 3, 22 Pitt Street, Sydney in the State of New
South Wales) and includes any Parent Entity which has acceded to the Final Funding Agreement in
accordance with that document.



JHINV Contribution has the meaning given to it in the Final Funding Agreement.



JHINV Group means JHINV and its Controlled Entities.




			
	 	 	 
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JHINV Intercreditor Deed means the Intercreditor Deed between the State of New South
Wales, Asbestos Injuries Compensation Fund Limited in its capacity as trustee for the Charitable
Fund, James Hardie Industries N.V and AET Structured Finance Services Pty Limited dated on or about
the date of this deed.



Liquidation means, in respect of any Person, the liquidation of all or substantially all of
its assets (other than, in the case of JHINV, where the acquirer of all or substantially all of
such assets has by deed of accession become bound to observe all the obligations of JHINV under
this deed and the JHINV Guarantee and the other Related Agreements to which JHINV is a party) with
the intention of distributing the proceeds to creditors or security holders, or a final order
directing or requiring such a liquidation is made or entered or deemed to have been made or entered
by any court of competent jurisdiction.



Net Finance Money Debt (Performing Subsidiary) has the meaning given to it in clause
4.2(a).



New Person has the meaning given to it in clause 4.6 of the Final Funding Agreement.



New Undertaking and Guarantee Trustee has the meaning given to it in clause 7.1(a).



Notice of Voting in Insolvency means a written notice from an Insolvency Official of
any matter or matters in connection with the Insolvency of the Performing Subsidiary (or another
member of the Performing Subsidiary Group where the Insolvency of such member is being administered
on a combined or consolidated basis with an Insolvency of the Performing Subsidiary).



Option has the meaning given to it in clause 8.3.



Original Final Funding Agreement means the legally binding agreement entitled “Final
Funding Agreement” dated 1 December 2005 between JHINV, the Performing Subsidiary and the NSW
Government to which the Fund Trustee became a party on 8 June 2006.



Parent Entity means any Person which becomes the ultimate holding company of JHINV.



Performing Subsidiary includes any other subsidiary of JHINV substituted for the
Performing Subsidiary in accordance with the terms of the Final Funding Agreement until a
replacement for this deed is entered into in accordance with clause 4.8.




			
	 	 	 
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Performing Subsidiary Group means the Performing Subsidiary and its Controlled
Entities.



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.



Preferred Option has the meaning given to it in clause 8.3(f).




Proceeds means:





	(a)	 	any amount (in the form of money or any other property) received or recovered by a
Compensation Party in respect of the Compensation Debt (Performing Subsidiary) during an
Insolvency of the Performing Subsidiary;
	 
	(b)	 	any amount (in the form of money or any other property) received or recovered by a
Compensation Party in connection with the failure by any of them or the Performing Subsidiary
to comply with their respective obligations under this deed.





Reconstruction Event means:





	(a)	 	the summoning of a meeting of creditors or the obtaining of an order of a court to do so for
the purpose of considering any scheme or plan of arrangement for reconstruction or compromise
with creditors;
	 
	(b)	 	a final order for relief under Chapter 11 of the US Bankruptcy Code is entered by a US court;
	 
	(c)	 	a filing by JHINV for a suspension of payments under Dutch law, provided that the Court
grants the (provisional) suspension of payments to JHINV;
	 
	(d)	 	any comparable action under the laws of any other jurisdiction occurs having substantially
the same effect as the orders described in paragraphs (b) and (c),




but in each case none of the aforementioned events will comprise a Reconstruction Event where the
proceeding or other action is commenced or initiated by or on behalf of the Trustee or the NSW
Government under this deed or the JHINV Guarantee, whether




			
	 	 	 
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acting alone or together with others, and for this purpose an order will be deemed to be final when
any timely-commenced proceeding 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.



Related Agreement means documents ancillary to the Final Funding Agreement listed in
Schedule 1 to the Final Funding Agreement.



Replacement Trustee means any replacement trustee of the Charitable Fund and any New
Person, in either case appointed in accordance with the Final Funding Agreement, as a substitute
for Asbestos Injuries Compensation Fund Limited in its capacity as trustee for the Charitable Fund
(or a previously appointed replacement trustee or New Person) as the creditor of the Performing
Subsidiary in respect of the Compensation Debt (Performing Subsidiary) and the Final Funding
Agreement.



Residual Rights has the meaning given to it in clause 4.4.



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 (Performing Subsidiary) or the
Compensation Debt (Performing Subsidiary) (as the context requires).



Specified Office means the office or branch through which the Undertaking and
Guarantee Trustee (or any New Undertaking and Guarantee Trustee) enters into this deed.




			
	 	 	 
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Specified Proportion means:





	(c)	 	if in the Insolvency of the Performing Subsidiary, the votes relating to the Compensation
Debt (Performing Subsidiary) can be proportionately cast in favour of different courses of
action:






	 	A.	 	100 per cent of the amount of the Compensation Debt (Performing Subsidiary),






	 	 	less






	 	B.	 	such percentage of the Compensation Debt (Performing Subsidiary), which when
added to all Finance Money Debt (Performing Subsidiary) owed by the Performing
Subsidiary, represents the amount reasonably expected at that time (having regard to
the value of the assets of the Performing Subsidiary available for distribution to pay
the claims of ordinary unsecured creditors as estimated by the Insolvency Official (or
otherwise determined or estimated for the purposes of the relevant Insolvency
proceeding in accordance with applicable law) and taking into account prior ranking
claims, the likely or anticipated distribution to the Financiers by the Insolvency
Official and any likely payment to the Undertaking and Guarantee Trust under clause 4)
would be required to enable discharge and satisfaction of the Finance Money Debt
(Performing Subsidiary) in full; or






	(d)	 	if in the Insolvency of the Performing Subsidiary, the votes relating to the Compensation
Debt (Performing Subsidiary) cannot be proportionately cast in favour of different courses of
action, 100 per cent of the amount of the Compensation Debt (Performing Subsidiary).




Trust Deed has the meaning given to it in the Final Funding Agreement.



Undertaking and Guarantee Trustee means AET Structured Finance Services Pty Limited or
such other Person acting as trustee under the Finance Undertaking and Guarantee (Performing
Subsidiary) (including any New Undertaking and Guarantee Trustee). For the avoidance of doubt the
Undertaking and Guarantee Trustee enters into this deed in a separate and different capacity from
the capacity in which it enters into the JHINV Intercreditor Deed.




			
	 	 	 
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Undertaking and Guarantee Trust means the Performing Subsidiary Undertaking and
Guarantee Trust established under the Finance Undertaking and Guarantee (Performing Subsidiary).



Wind-Up Event means, in respect of a Person, the occurrence of any one or more of the
following:





	(a)	 	a final court order is entered that it be wound up or declared bankrupt;
	 
	(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, dismissed, vacated or reversed;
	 
	(d)	 	the dissolution of such Person under Dutch law (ontbinding) or the law of any other
jurisdiction;
	 
	(e)	 	the declaration of its bankruptcy under Dutch law (faillissement);
	 
	(f)	 	the Liquidation of that Person;
	 
	(g)	 	a final order for relief occurs or is deemed to occur in relation to it under Chapter 7 or
Chapter 11 of the US Bankruptcy Code which, when implemented, will result in the Liquidation
of that Person; and
	 
	(h)	 	any comparable action occurs under the law of any competent jurisdiction which has a
substantially the same effect to paragraphs (a) to (g) of this definition,




and an order shall be deemed to be final when any timely-commenced proceeding 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.





	2.	 	INTERPRETATION




In this deed the following rules of interpretation apply unless the contrary intention
appears.




			
	 	 	 
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	(a)	 	Headings are for convenience only and do not affect the interpretation of this deed.
	 
	(b)	 	The singular includes the plural and vice versa.
	 
	(c)	 	Words that are gender neutral or gender specific include each gender.
	 
	(d)	 	Where a word or phrase is given a particular meaning, other parts of speech and grammatical
forms of that word or phrase have corresponding meanings.
	 
	(e)	 	The words ‘such as’, ‘including’, ‘particularly’ and similar expressions are not used as nor
are intended to be interpreted as words of limitation.
	 
	(f)	 	A reference to:






	 	(i)	 	a thing (including but not limited to a chose in action or other right)
includes a part of that thing;
	 
	 	(ii)	 	a party or a Financier includes its successors and permitted assigns;
	 
	 	(iii)	 	a document includes all amendments or supplements to that document;
	 
	 	(iv)	 	a clause, term, party, schedule or attachment is a reference to a clause or
term of, or party, schedule or attachment to this deed;
	 
	 	(v)	 	this deed includes all schedules and attachments to it;
	 
	 	(vi)	 	a law includes a constitutional provision, treaty, decree, convention,
statute, regulation, ordinance, by-law, judgment, rule of common law or equity or a
rule of an applicable official stock exchange and is a reference to that law as
amended, consolidated or replaced;
	 
	 	(vii)	 	an agreement other than this deed includes an undertaking, or legally
enforceable arrangement or understanding whether or not in writing; and
	 
	 	(viii)	 	a monetary amount is in Australian dollars.






	(g)	 	An agreement on the part of two or more persons binds them severally.





			
	 	 	 
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	(h)	 	When the day on which something must be done is not a Business Day, that thing must be done
on the following Business Day.
	 
	(i)	 	In determining the time of day where relevant to this deed, the relevant time of day is:






	 	(i)	 	for the purposes of giving or receiving notices, the time of day where a
party receiving a notice is located; or
	 
	 	(ii)	 	for any other purpose under this deed, the time of day in the place where the
party required to perform an obligation is located.






	(j)	 	No rule of construction applies to the disadvantage of a party because that party was
responsible for the preparation of this deed or any part of it.





			
	 	 	 
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