exv4w12






Exhibit 4.12









James Hardie — Guarantee Trust Deed



Dated 19 December 2006




James Hardie Industries N.V. (“Guarantor”)

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




Mallesons Stephen Jaques

Level 60

Governor Phillip Tower

1 Farrer Place

Sydney NSW 2000

Australia

T +61 2 9296 2000

F +61 2 9296 3999

DX 113 Sydney

www.mallesons.com

Ref: GNH:YC:MJC




 









 





James Hardie — Guarantee Trust Deed
Contents





	 	 	 	 	 	 	 

	Details	 	 	1	 
	General terms	 	 	4	 
	 
	Part 1 Preliminary 	 	 	4	 
	 
	1

	 	Interpretation
	 	 	4	 
	 
	 	 	 	 	 	 
	1.1

	 	Definitions
	 	 	4	 
	1.2

	 	References to certain general terms
	 	 	12	 
	1.3

	 	Number
	 	 	13	 
	1.4

	 	Headings
	 	 	13	 
	1.5

	 	Trust Convention
	 	 	13	 
	1.6

	 	Guarantee Trustee’s limitation of liability
	 	 	14	 
	1.7

	 	Guarantee Trustee’s knowledge
	 	 	15	 
	1.8

	 	Reliance on notices
	 	 	15	 
	1.9

	 	Condition precedent
	 	 	15	 
	 
	2

	 	Consideration and benefit
	 	 	15	 
	 
	 	 	 	 	 	 
	2.1

	 	Deed and deed poll
	 	 	15	 
	2.2

	 	Benefit
	 	 	16	 
	2.3

	 	Consideration
	 	 	16	 
	2.4

	 	Ceasing to be a beneficiary
	 	 	16	 
	 
	3

	 	Inconsistency and advice
	 	 	17	 
	 
	4

	 	Termination
	 	 	17	 
	 
	Part 2 Guarantee Trust and the Guarantee Trustee	 	 	19	 
	 
	5

	 	Guarantee Trust
	 	 	19	 
	 
	 	 	 	 	 	 
	5.1

	 	Declaration of trust
	 	 	19	 
	5.2

	 	Duration
	 	 	19	 
	5.3

	 	Trust name
	 	 	20	 
	 
	6

	 	Nature of Guarantee
	 	 	20	 
	 
	 	 	 	 	 	 
	6.1

	 	Several nature of the Guarantee
	 	 	20	 
	6.2

	 	Claims in Insolvency
	 	 	20	 
	6.3

	 	Demands prior to Insolvency
	 	 	20	 
	 
	7

	 	Guarantee Trustee
	 	 	20	 
	 
	 	 	 	 	 	 
	7.1

	 	Appointment
	 	 	20	 
	7.2

	 	Remuneration
	 	 	20	 
	7.3

	 	Power
	 	 	21	 
	7.4

	 	Specific responsibilities
	 	 	21	 
	7.5

	 	No other duties
	 	 	23	 
	7.6

	 	Delegation
	 	 	23	 
	7.7

	 	Indemnity
	 	 	24	 
	7.8

	 	Payment by Beneficiaries
	 	 	25	 






	 	 	 	 	 

	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	i






 









 






	 	 	 	 	 	 	 

	7.9

	 	Adjustments amongst Beneficiaries
	 	 	25	 
	 
	8

	 	Change of Guarantee Trustee
	 	 	26	 
	 
	 	 	 	 	 	 
	8.1

	 	Retirement
	 	 	26	 
	8.2

	 	Removal
	 	 	26	 
	8.3

	 	Permitted successors
	 	 	26	 
	8.4

	 	When retirement or removal takes effect
	 	 	26	 
	8.5

	 	Discharge of further obligations
	 	 	27	 
	8.6

	 	Turnover
	 	 	27	 
	 
	9

	 	Register
	 	 	27	 
	 
	 	 	 	 	 	 
	9.1

	 	Establishment and maintenance of Register
	 	 	27	 
	9.2

	 	Information required in Register
	 	 	27	 
	9.3

	 	No trust
	 	 	28	 
	9.4

	 	Register conclusive
	 	 	28	 
	9.5

	 	Update and correction of Register
	 	 	28	 
	9.6

	 	Inspection of Register
	 	 	28	 
	 
	Part 3 Guarantee	 	 	29	 
	 
	10

	 	Guarantee and indemnity
	 	 	29	 
	 
	 	 	 	 	 	 
	10.1

	 	Guarantee
	 	 	29	 
	10.2

	 	Indemnity
	 	 	29	 
	 
	11

	 	Interest
	 	 	30	 
	 
	 	 	 	 	 	 
	11.1

	 	Obligation to pay interest
	 	 	30	 
	11.2

	 	Compounding
	 	 	30	 
	11.3

	 	Interest following judgment
	 	 	31	 
	 
	12

	 	Extent of guarantee and indemnity
	 	 	31	 
	 
	13

	 	Rights of the Beneficiary are protected
	 	 	31	 
	 
	14

	 	Guarantor’s rights
	 	 	32	 
	 
	 	 	 	 	 	 
	14.1

	 	Guarantor’s rights are suspended
	 	 	32	 
	14.2

	 	Guarantor’s right of proof limited
	 	 	33	 
	 
	15

	 	Power of Attorney
	 	 	33	 
	 
	 	 	 	 	 	 
	15.1

	 	Appointment
	 	 	33	 
	15.2

	 	Powers
	 	 	33	 
	15.3

	 	Application of insolvency dividends
	 	 	34	 
	 
	Part 4 Voting in Insolvency and Distribution of Recovered Money	 	 	35	 
	 
	16

	 	Voting in Insolvency proceedings
	 	 	35	 
	 
	 	 	 	 	 	 
	16.1

	 	Obtaining instructions
	 	 	35	 
	16.2

	 	Voting
	 	 	35	 
	 
	17

	 	Distribution of Recovered Money
	 	 	36	 
	 
	17.1

	 	How the Guarantee Trustee is to distribute
	 	 	36	 
	17.2

	 	Manner of distribution
	 	 	37	 
	17.3

	 	Receipt by Beneficiary not through Guarantee Trustee
	 	 	37	 







	 	 	 	 	 

	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	ii





 









 






	 	 	 	 	 	 	 

	17.4

	 	Accounting to Guarantee Trustee
	 	 	37	 
	17.5

	 	Refund to Beneficiary
	 	 	37	 
	17.6

	 	Deemed Payment
	 	 	37	 
	 
	Part 5 General provisions	 	 	38	 
	 
	18

	 	Payments
	 	 	38	 
	 
	 	 	 	 	 	 
	18.1

	 	Manner of payment by the Guarantor
	 	 	38	 
	18.2

	 	Direction to pay
	 	 	38	 
	18.3

	 	Currency of payment
	 	 	38	 
	 
	19

	 	Application of payments
	 	 	39	 
	 
	 	 	 	 	 	 
	19.1

	 	Application of money
	 	 	39	 
	19.2

	 	Order of payment
	 	 	39	 
	19.3

	 	Suspense account
	 	 	39	 
	19.4

	 	Remaining money
	 	 	39	 
	19.5

	 	Credit from date of receipt
	 	 	39	 
	 
	20

	 	Withholding tax
	 	 	39	 
	 
	 	 	 	 	 	 
	20.1

	 	Payments by Guarantor
	 	 	39	 
	20.2

	 	Tax credit
	 	 	40	 
	 
	21

	 	Indirect Taxes
	 	 	40	 
	 
	22

	 	Costs
	 	 	41	 
	 
	 	 	 	 	 	 
	22.1

	 	What the Guarantor agrees to pay
	 	 	41	 
	22.2

	 	Currency conversion on judgment debt
	 	 	41	 
	 
	23

	 	Reinstatement of rights
	 	 	41	 
	 
	24

	 	No merger
	 	 	42	 
	 
	25

	 	Dealings
	 	 	42	 
	 
	 	 	 	 	 	 
	25.1

	 	Dealings by the Guarantor with the Compensation Debt
	 	 	42	 
	25.2

	 	Dealings by the Guarantor
	 	 	43	 
	25.3

	 	Dealings by Beneficiaries
	 	 	43	 
	 
	26

	 	Notices
	 	 	43	 
	 
	 	 	 	 	 	 
	26.1

	 	Form
	 	 	43	 
	26.2

	 	Demand under Guarantee
	 	 	43	 
	26.3

	 	Delivery
	 	 	43	 
	26.4

	 	When effective
	 	 	44	 
	26.5

	 	Receipt — postal
	 	 	44	 
	26.6

	 	Receipt — fax
	 	 	44	 
	 
	27

	 	General
	 	 	44	 
	 
	 	 	 	 	 	 
	27.1

	 	Consents
	 	 	44	 
	27.2

	 	Prompt performance
	 	 	44	 
	27.3

	 	Certificates
	 	 	44	 
	27.4

	 	Set-off
	 	 	44	 
	27.5

	 	Discretion in exercising rights
	 	 	45	 
	27.6

	 	Partial exercising of rights	 	 	45	 







	 	 	 	 	 

	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	iii






 









 






	 	 	 	 	 	 	 

	27.7

	 	Indemnities
	 	 	45	 
	27.8

	 	Inconsistent law
	 	 	45	 
	27.9

	 	Supervening legislation
	 	 	45	 
	27.10

	 	Remedies cumulative
	 	 	45	 
	27.11

	 	Time of the essence
	 	 	45	 
	27.12

	 	Variation and waiver
	 	 	45	 
	27.13

	 	Confidentiality
	 	 	45	 
	27.14

	 	Further steps
	 	 	46	 
	27.15

	 	Counterparts
	 	 	46	 
	27.16

	 	Governing law
	 	 	46	 
	27.17

	 	Serving documents
	 	 	47	 
	27.18

	 	Process Agent
	 	 	47	 
	Schedule 1(A) — Form of Beneficiary Nomination Letter (clause 1.9)	 	 	48	 
	Schedule 1(B) — Form of Beneficiary Change Notification (clause 9.1(b))	 	 	50	 
	Schedule 2 — Form of Replacement Guarantee (clause 4)	 	 	51	 
	General terms	 	 	52	 
	Signing page	 	 	71	 






	 	 	 	 	 

	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	iv






 










 





James Hardie — Guarantee Trust Deed



Details



Interpretation — definitions are in clause 1.





	 	 	 	 	 

	 
	Parties	 	Guarantor and Guarantee Trustee
	 
	 
	 	 	 	 
	Guarantor

	 	Name
	 	James Hardie Industries N.V.
	 
	 	 	 	 
	 

	 	Corporate seat
	 	Amsterdam
	 
	 	 	 	 
	 

	 	Registered Number
	 	34106455
	 
	 	 	 	 
	 

	 	ABN
	 	49 097 829 895
	 
	 	 	 	 
	 

	 	ARBN
	 	097 829 895
	 
	 	 	 	 
	 

	 	Address
	 	Atrium, 8th Floor

Strawinskylaan 3077

1077 ZX Amsterdam

The Netherlands
	 
	 	 	 	 
	 

	 	Fax
	 	+ 31 20 404 2544
	 
	 	 	 	 
	 

	 	Attention
	 	Managing Director and Company Secretary
	 
	Guarantee Trustee

	 	Name
	 	AET Structured Finance Services Pty Limited
	 
	 	 	 	 
	 

	 	ABN
	 	12 106 424 088
	 
	 	 	 	 
	 

	 	Address
	 	80 Alfred Street

Milsons Point NSW 2061
	 
	 	 	 	 
	 

	 	Fax
	 	02 9028 5942
	 
	 	 	 	 
	 

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









	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	1















 






	 	 	 	 	 

	 	 	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 the Guarantor and its subsidiaries with
the result that the Guarantor became the ultimate holding company of the
businesses formerly carried on or controlled by JHIL.

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

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

	 
	 	 	 	 
	 	 	E  The Heads of Agreement also provided that the obligations of the
Guarantor to guarantee the payment of such funding to the Charitable Fund are
to be subordinated to the obligations of the Guarantor to certain lenders to
James Hardie Group Members.

	 
	 	 	 	 
	 	 	F  The principles contained in the Heads of Agreement were developed
and set out 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.

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

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








	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	2















 






	 	 	 	 	 

	 	 	J  The Guarantor has guaranteed the obligations of the Performing
Subsidiary under the Final Funding Agreement on and subject to the terms of the
Fund Guarantee.

	 
	 	 	 	 
	 	 	K  The Guarantor wishes to provide separate guarantees under this
deed to the providers from time to time of financial accommodation to the James
Hardie Group.

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

	 
	Date of deed	 	See Signing page







	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	3

















 





James Hardie — Guarantee Trust Deed




General terms




Part 1 Preliminary





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






	 	(a)	 	in the case of the Guarantee Trustee or a Beneficiary, a director or
secretary, or an officer whose title contains the word “director”, “chief”, “head”,
“president”, “vice-president”, “executive” or “manager” or a person performing the
functions of any of them, or any other person nominated by the Guarantee Trustee or
the Beneficiary, as the case may be, as an Authorised Officer for the purposes of
this deed;
	 
	 	(b)	 	in the case of the Guarantor, a person appointed by the Guarantor and
notified to the Guarantee Trustee as an Authorised Officer for the purposes of this
deed, and whose specimen signature is provided with such notification to the
Guarantee Trustee.






	 	 	Beneficiary means each person nominated as a “Beneficiary” in a Beneficiary Nomination
Letter (including, in the case of any group of creditors, an agent or trustee acting on
their behalf) and includes their successors and assigns, but excludes any person who has
ceased to be a Beneficiary in accordance with clause 2.4.
	 
	 	 	Beneficiary Change Form means a form sent to the Guarantee Trustee in accordance with
clause 9.1(b).
	 
	 	 	Beneficiary Nomination Letter means a letter substantially in the form set out in schedule
1(A) signed by the Guarantor, accepted by the relevant Beneficiary and confirmed by the
Guarantee Trustee.
	 
	 	 	Business Day means a weekday (not being a public holiday) on which:






	 	(a)	 	for the purposes of making or receiving any payments in US Dollars, banks
are open for general banking business in London, New York and Sydney;







	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	4






 









 






	 	(b)	 	for the purpose of making or receiving any payments in another currency,
banks are open for general banking business in such place or places specified in the
relevant Finance Document; and
	 
	 	(c)	 	for all other purposes, banks are open for general banking business in
Amsterdam, Sydney and any other place or places specified in the relevant Finance
Document.






	 	 	Charitable Fund has the meaning given to that term in the Final Funding Agreement.
	 
	 	 	Compensation Debt has the meaning given to that term in the Intercreditor Deed.
	 
	 	 	Costs means costs, fees, disbursements, charges and expenses, including, without
limitation, where the Guarantor is liable to pay or reimburse the Costs, those incurred in
connection with advisers and, unless such Costs are incurred in connection with:






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






	 	 	only for an amount and on a basis previously agreed to in writing by the Guarantor.
	 
	 	 	Debtor means, in respect of a Beneficiary at a particular time, the person or persons
primarily liable to the Beneficiary at that time under the Finance Documents.
	 
	 	 	Deed of Accession has the meaning given to that term in the Final Funding Agreement.
	 
	 	 	Default Rate means LIBOR plus 2% per annum. For the purpose of this definition, the
interest is calculated as if the overdue amount is a cash advance with interest periods
beginning and ending on the first and last days respectively of each calendar month (and
including both days), provided that the first interest period begins on and includes the
due date.
	 
	 	 	Details means the section of this deed headed “Details”.
	 
	 	 	Discretionary Fund has the meaning given to that term in the Final Funding Agreement.
	 
	 	 	Excluded Lender has the meaning given to that term in the Intercreditor Deed.






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	5






 









 












	 	 	Excluded Tax means:






	 	(a)	 	a Tax imposed by any jurisdiction on or assessed against a Beneficiary as a
consequence of the Beneficiary being a resident of or organised in or doing business
in that jurisdiction, but not any Tax:






	 	(i)	 	that is calculated on or by reference to the gross amount
of a payment derived under this deed or another document referred to in this
deed (without the allowance of a deduction);
	 
	 	(ii)	 	that is imposed as a result of the Beneficiary being
considered a resident or organised or doing business in that jurisdiction
solely as a result of it being a party to this deed or a transaction
contemplated by this deed; or






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






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






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






	 	 	Finance Money Debt has the meaning given to that term in the Intercreditor Deed.
	 
	 	 	Fund Trustee means Asbestos Injuries Compensation Fund Limited in its capacity as trustee
of the Charitable Fund.
	 
	 	 	Fund Contribution has the meaning given to the term “JHINV Contribution” in the Final
Funding Agreement.
	 
	 	 	Fund Guarantee means the instrument entitled “Parent Guarantee” dated 21 November 2006
between the Fund Trustee, the NSW Government and the Guarantor.
	 
	 	 	Government Agency means any government or any governmental, semi-governmental,
administrative, fiscal or judicial body, department, commission, authority, tribunal,
agency or entity having jurisdiction over, or in relation to the affairs of, a James
Hardie Group Member and, for the avoidance of doubt, includes, without limitation, the
Australian Taxation Office, the US Internal Revenue Service and the Dutch tax authorities.






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	6





 









 






	 	 	Guarantee means the guarantees and indemnities given by the Guarantor under clause 10.
	 
	 	 	Guaranteed Money means all amounts that:






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






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






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






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






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






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






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	7






 











 












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






	 	 	Guarantee Trust means the James Hardie Guarantee Trust established by clause 5.1(a) of
this deed.
	 
	 	 	Guarantee Trustee means the person so described in the Details.
	 
	 	 	Guarantor means the person so described in the Details.
	 
	 	 	Heads of Agreement means the non-binding agreement entered into on 21 December 2004
between the Guarantor, the NSW Government, the Australian Council of Trade Unions, Unions
New South Wales and a representative of certain asbestos victims groups.
	 
	 	 	Independent Valuer means:






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






	 	 	Indirect Tax means any goods and services tax, consumption tax, value added tax or any tax
of a similar nature.
	 
	 	 	Insolvency Event means, in respect of a person, the occurrence in respect of that person
of any event referred to in paragraphs (a) to (h) of the definition of “Insolvent” and,
for the avoidance of doubt, includes a Winding Up.
	 
	 	 	Insolvency Official means a custodian, receiver, receiver and manager, trustee,
liquidator, provisional liquidator, administrator or any other officer appointed in
connection with the Insolvency of the Guarantor and includes, without limitation:






	 	(a)	 	a receiver in bankruptcy (curator), an administrator (bewindvoerder);
	 
	 	(b)	 	a liquidator (vereffenaar) appointed in connection with a Winding Up under
Dutch law; and
	 
	 	(c)	 	where the context so requires, a supervisory judge or a court of competent
jurisdiction in respect of the Insolvency of the Guarantor.






	 	 	A person is Insolvent if it:






	 	(a)	 	admits in writing its inability to pay its debts as they become due
(otherwise than as contemplated in clause 16.6 of the Final Funding Agreement);
	 
	 	(b)	 	was established under Dutch law and files a petition with any court in the
Netherlands in relation to its bankruptcy (faillissement) or seeks an order for a
suspension of payments (surseance van betaling);





	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	8





 









 






	 	(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 the Guarantor, after it makes such a filing, fails to
pay a Fund Contribution or other amount under the Fund 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,






	 	 	 	and also provided that, in 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;
	 
	 	(h)	 	is subject to Winding Up,






	 	 	and Insolvency has a corresponding meaning.
	 
	 	 	James Hardie Group means the Guarantor and its Subsidiaries and James Hardie Group Member
means any of them.
	 
	 	 	JHIL means ABN 60 Pty Limited (ABN 60 000 009 263) (formerly known as James Hardie
Industries Limited).
	 
	 	 	Intercreditor Deed means the deed so entitled between the Fund Trustee, the NSW
Government, the Guarantor and the Guarantee Trustee dated on or about the date of this
deed.
	 
	 	 	LIBOR means, in relation to any overdue amount:






	 	(a)	 	the applicable British Bankers’ Association Interest Settlement Rate for
the currency in which the overdue amount is payable (“Due






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	9





 









 






	 	 	 	Currency”) and the relevant period displayed on the appropriate page of the
Reuters screen (but if the agreed page is replaced or service ceases to be
available, the Beneficiary to whom the overdue amount is owed may specify another
page or service displaying the appropriate rate after consultation with the
Guarantor) (“Screen Rate”); or
	 
	 	(b)	 	(if no Screen Rate is available for the Due Currency and the interest
period of that overdue amount) the arithmetic mean of the rates (rounded upwards to
four decimal places) as supplied to the Beneficiary to whom the overdue amount is
owed at its request quoted by the principal London offices of at least three leading
international banks chosen by the Beneficiary in consultation with the Guarantor to
other leading international banks in the London interbank market,






	 	 	as of 11.00 am (London time) on the day two Business Days before the first day of an
interest period for which the interest rate is to be determined for the offering of
deposits in the Due Currency and for a period comparable to the interest period for the
overdue amount.
	 
	 	 	Liquidation means, in respect of any person, the liquidation of all or substantially all
of its assets (other than, in the case of the Guarantor, where the acquirer of all or
substantially all of such assets has by deed of accession become bound to observe all the
obligations of the Guarantor under this deed and the Fund Guarantee and the other Related
Agreements to which the Guarantor is a party) with the intention of distributing the
proceeds to creditors or security holders, or a final order directing or requiring such
liquidation is made or entered or deemed to have been made or entered by any court of
competent jurisdiction.
	 
	 	 	Notice of Voting in Insolvency means a written notice from an Insolvency Official of any
matter or matters in connection with the Insolvency (including, without limitation, the
Winding Up) of the Guarantor and requiring or inviting the casting of votes by creditors
of the Guarantor in relation to such matter or matters.
	 
	 	 	NSW Government means the State of New South Wales.
	 
	 	 	Original Final Funding Agreement means the legally binding agreement so entitled and
entered into on 1 December 2005 between the Guarantor, the Performing Subsidiary and the
NSW Government giving effect to the arrangements contemplated by the Heads of Agreement.
	 
	 	 	Performing Subsidiary means James Hardie 117 Pty Limited (formerly known as LGTDD Pty
Limited) (ABN 30 116 110 948).
	 
	 	 	Proceeds has the meaning given to that term in the Intercreditor Deed.
	 
	 	 	Proportion means, in respect of a Beneficiary at any time, the Beneficiary’s proportion of
the Finance Money Debt (including all Proceeds) divided by the total of all Finance Money
Debt at that time, expressed as a percentage.






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	10





 









 






	 	 	Recovered Money means all amounts paid to or recovered by the Guarantee Trustee in respect
of the Finance Money Debt during an Insolvency of the Guarantor which has not yet been
distributed under clause 17.
	 
	 	 	Register means the register to be established and maintained by the Guarantee Trustee
under clause 9.
	 
	 	 	Related Agreement has the meaning given to that term in the Final Funding Agreement.
	 
	 	 	Related Entity has the meaning it has in the Corporations Act.
	 
	 	 	Relevant Documents means:






	 	(a)	 	the Final Funding Agreement;
	 
	 	(b)	 	any Related Agreement; and
	 
	 	(c)	 	any Finance Document.






	 	 	Security Interest means any mortgage, pledge, lien or charge or any security or
preferential interest or arrangement of any kind or any other right of, or arrangement
with, any creditor to have its claims satisfied in priority to other creditors with, or
from the proceeds of, any asset. This definition:






	 	(a)	 	includes any retention of title agreements arising other than in the
ordinary course of business; and
	 
	 	(b)	 	excludes any right of set-off, right to combine accounts, or other similar
right or arrangement arising in the ordinary course of business or by operation of
law.






	 	 	Security Provider means a person (other than the Guarantor) who at any time is liable by
guarantee, indemnity or otherwise alone or jointly, or jointly and individually, to pay or
indemnify against non-payment of the Finance Money Debt.
	 
	 	 	Subsidiary in relation to a corporation means a subsidiary of the corporation for the
purposes of the Corporations Act.
	 
	 	 	Tax means any present or future tax (including Indirect Taxes), levy, impost, duty,
charge, fee, deduction, compulsory loan or withholding or any income, stamp or transaction
duty, tax or charge, in the nature of tax whatsoever called (except if imposed on, or
calculated having regard to, the net income of a Beneficiary) and whether imposed, levied,
collected, withheld or assessed by any Government Agency and includes, but is not limited
to, any penalty, fine, charge, fee, interest or other amount payable in connection with
failure to pay or delay in paying the same.
	 
	 	 	Trust Deed has the meaning given to that term in the Final Funding Agreement.
	 
	 	 	Trust Convention means the Convention on the Law applicable to Trusts and on their
Recognition 1985.






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	11





 









 






	 	 	US$, USD or US Dollars means the lawful currency of the United States of America.
	 
	 	 	Winding Up means, in respect of a person, the occurrence of any one or more of the
following events in relation to that person:






	 	(a)	 	a final court order is entered that it be wound up or declared bankrupt;
	 
	 	(b)	 	a liquidator (excluding a provisional liquidator) is appointed to it and
the appointment is not subsequently terminated;
	 
	 	(c)	 	a court declaration of bankruptcy is made in relation to it and is not
subsequently withdrawn, struck out or dismissed, vacated or reversed;
	 
	 	(d)	 	the 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 similar effect to any of the above paragraphs (a) to (g) of
this definition,






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






	 	(a)	 	a group of persons is a reference to any two or more of them collectively
and to each of them individually;
	 
	 	(b)	 	an agreement, representation or warranty in favour of two or more persons
is for the benefit of them collectively and each of them individually;
	 
	 	(c)	 	an agreement, representation or warranty by two or more persons binds them
collectively and each of them individually but an agreement, representation or
warranty by a Beneficiary binds the Beneficiary only;
	 
	 	(d)	 	anything (including an amount) is a reference to the whole and each part of it
(but nothing in this clause 1.2(d) implies that performance of part of an obligation
constitutes performance of the obligation);






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	12





 









 






	 	(e)	 	a document (including this deed) includes any variation or replacement of
it;
	 
	 	(f)	 	law includes (without limitation) common law, principles of equity, and
laws made by any legislative body of any jurisdiction (and references to any statute,
regulation or by-law include any modification or re-enactment of or any provision
substituted for, and all statutory and subordinate instruments issued under such
statute, regulation or by-law or such provision);
	 
	 	(g)	 	the word “person” includes an individual, a firm, a body corporate, a
partnership, a joint venture, an unincorporated association and any Government
Agency;
	 
	 	(h)	 	a particular person includes a reference to the person’s executors,
administrators, successors, substitutes (including persons taking by novation) and
assigns;
	 
	 	(i)	 	the words “including”, “for example” or “such as” when introducing an
example, do not limit the meaning of the words to which the example relates to that
example or examples of a similar kind;
	 
	 	(j)	 	the Corporations Act is a reference to the Corporations Act 2001 of
Australia; and
	 
	 	(k)	 	the words “to prove for”, “prove” and “right of proof”, when used in
connection with a Winding Up or another Insolvency proceeding under Dutch law
include, without limitation, “filing”, “filing for verification purposes” and
“verification procedure”, as the context may require.






	1.3	 	Number
	 
	 	 	The singular includes the plural and vice versa.

	 
	1.4	 	Headings
	 
	 	 	Headings (including those in brackets at the beginning of paragraphs) are for
convenience only and do not affect the interpretation of this deed.
	 
	1.5	 	Trust Convention
	 
	 	 	It is the express intention of the parties to this deed that each trust constituted
by this deed:






	 	(a)	 	be recognised as a trust in accordance with the terms of this deed in any
relevant jurisdiction;
	 
	 	(b)	 	qualify as a “trust” for the purpose of the Trust Convention; and
	 
	 	(c)	 	be recognised as a trust in accordance with the Trust Convention in any
jurisdiction where the Trust Convention applies.






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	13




 









 












	1.6	 	Guarantee Trustee’s limitation of liability






	 	(a)	 	A liability arising under or in connection with this deed is limited to and can
be enforced against the Guarantee Trustee only to the extent to which it can be
satisfied out of any property held by the Guarantee Trustee out of which the
Guarantee Trustee is actually indemnified for the liability. This limitation of the
Guarantee Trustee’s liability applies despite any other provision of this deed and
extends to all liabilities and obligations of the Guarantee Trustee in any way
connected with any representation, warranty, conduct, omission, agreement or
transaction related to this deed.
	 
	 	(b)	 	The parties (other than the Guarantee Trustee) may not sue the 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
Guarantee Trustee or prove in any liquidation of or affecting the Guarantee Trustee
(except in relation to the property of the Guarantee Trust).
	 
	 	(c)	 	The parties waive their rights and release the 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 Guarantee Trustee to perform its obligations under
this deed, which cannot be paid or satisfied out of any property of the Guarantee
Trust held by the Guarantee Trustee.
	 
	 	(d)	 	The provisions of this clause 1.6 will not apply to any obligation or
liability of the Guarantee Trustee to the extent to which such obligation or
liability:






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






	 	(e)	 	No act or omission of the 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 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 Guarantee Trustee) or any other person to
fulfil its obligations relating to the Guarantee Trust or by any other act or
omission of the parties (other than the Guarantee Trustee) or any other person having
obligations relating to the Guarantee Trust.
	 
	 	(f)	 	Any fraud, gross negligence or wilful misconduct of an attorney, agent or
delegate appointed by the Guarantee Trustee in accordance with this deed is not, and
is not to be deemed to be, an act on behalf of the Guarantee Trustee for the purposes
of this deed and does not create rights or obligations on any party to this deed nor
expose the Guarantee Trustee to any personal liability provided that:







	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	14





 









 












	 	(i)	 	nothing in this paragraph (f) relieves the Guarantee
Trustee from any liability to the extent of any fraud, gross negligence or
wilful misconduct of the Guarantee Trustee in the selection, appointment,
oversight or supervision of any such attorney, agent or delegate; and
	 
	 	(ii)	 	the Guarantee Trustee must, to the extent permitted by
law, take all reasonable steps to recover compensation for any expenses,
losses, liabilities, actions, proceedings or claims that are incurred by the
Guarantee Trustee (or would have been incurred but for the operation of this
clause 1.6(f)) as a direct or indirect consequence of the fraud, gross
negligence or wilful misconduct of any attorney, agent or delegate appointed
by the Guarantee Trustee from any such attorney, agent or delegate.






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






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






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	15




 









 












	2.2	 	Benefit






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






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






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






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






	 	(b)	 	A Beneficiary may at any time notify the Guarantee Trustee in writing that the
Beneficiary wishes to cease to be a beneficiary of the Guarantee Trust. Any such
notice does not limit the Beneficiary’s rights against the Guarantor other than its
rights as a beneficiary of the Guarantee Trust.
	 
	 	(c)	 	The relevant Beneficiary undertakes to do all things necessary to give
effect to the cessation of its being a beneficiary under clause 2.4(a) (if it
is satisfied, acting reasonably, that clauses 2.4(a)(i), 2.4(a)(ii) and






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	16





 









 






	 	 	 	2.4(a)(iii) are satisfied) or 2.4(b), including, without limitation, the
execution of the consent referred to in clause 2.4(a) and the surrender of its
Beneficiary Nomination Letter.
	 
	 	(d)	 	A Beneficiary ceases to be a beneficiary of the Guarantee Trust and
thereupon ceases to have the benefit of the Guarantee:






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






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






	3	 	Inconsistency and advice






	 	(a)	 	If any provision of the Final Funding Agreement, any Related Agreement
(excluding this deed, the Intercreditor Deed or the Intercreditor Deed (Performing
Subsidiary) attached as Annexure 7B to the Final Funding Agreement), any other
Finance Document or the Fund Guarantee is inconsistent with this deed, this deed
prevails to the extent of the inconsistency.
	 
	 	(b)	 	Each of the parties to this deed undertake to use all reasonable endeavours
to procure that the Relevant Documents which are not executed as at the date of this
deed are executed in a form that minimises the likelihood of any inconsistency.
	 
	 	(c)	 	In the event that the Guarantee Trustee may be required to exercise any
discretion, judgement or issue a notice or determine a matter relating to this deed
or any Relevant Document, the Guarantee Trustee will be entitled to seek such legal,
accounting, tax or other advice as is reasonable in all the circumstances.






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






	 	(a)	 	to the Guarantee Trustee:






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






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	17





 









 












	 	(b)	 	to each Beneficiary:






	 	(i)	 	an original signed counterpart of a replacement guarantee
substantially in the form set out in schedule 2 (“Form of replacement
guarantee”); and
	 
	 	(ii)	 	legal opinions from lawyers practising in New South Wales
and the Netherlands in respect of such replacement guarantee which confirm
that such replacement guarantee constitutes a valid, binding and enforceable
obligation of the Guarantor (subject to their customary assumptions and
qualifications),






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






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	18





 











 





James Hardie — Guarantee Trust Deed




Part 2 Guarantee Trust and the Guarantee Trustee





	5	 	Guarantee Trust
	 
	5.1	 	Declaration of trust
	 
	 	 	The Guarantee Trustee:






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






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






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






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







	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	19















 






	 	 	court regarding the settlement of new trusts for the Beneficiaries, as required under this
clause 5.2.






	5.3	 	Trust name
	 
	 	 	The trusts established under clause 5.1(a) shall be collectively known as the James
Hardie Guarantee Trust.
	 
	6	 	Nature of Guarantee
	 
	6.1	 	Several nature of the Guarantee
	 
	 	 	The benefit of the Guarantee held by the Guarantee Trustee in accordance with, and
on the terms of, this deed is held by the Guarantee Trustee on trust for the benefit of
each Beneficiary severally with respect to the Guaranteed Money owing to the relevant
Beneficiary.
	 
	6.2	 	Claims in Insolvency
	 
	 	 	Each Beneficiary is severally a creditor of the Guarantor in relation to the
Guaranteed Money owing to the Beneficiary, but its rights under the Guarantee in an
Insolvency of the Guarantor are subject to the terms of this deed and are to be exercised
by the Guarantee Trustee on its behalf on the terms of this deed.
	 
	6.3	 	Demands prior to Insolvency
	 
	 	 	Prior to an Insolvency of the Guarantor, and subject to the terms of this deed,
each Beneficiary individually may make a demand under the Guarantee with respect to the
Guaranteed Money owing to that Beneficiary.
	 
	7	 	Guarantee Trustee
	 
	7.1	 	Appointment
	 
	 	 	The Guarantor appoints the Guarantee Trustee as the trustee for each Beneficiary in
respect of the Guarantee, each Relevant Document and any other document in connection with
the Guarantee or any Relevant Document which contains provisions in favour of, or for the
benefit of, the Guarantee Trustee or a Beneficiary (including, without limitation, all
representations, warranties and undertakings made in favour of the Guarantee Trustee or
any Beneficiary and any other rights, claims or entitlements of the Guarantee Trustee or a
Beneficiary under the Guarantee or any Relevant Document).
	 
	 	 	The Guarantee Trustee accepts that appointment on the terms and conditions of this deed.
	 
	7.2	 	Remuneration






	 	(a)	 	The Guarantor must pay the Guarantee Trustee the fee separately agreed by the
Guarantor and the Guarantee Trustee (including without limitation fees in relation to the Guarantee Trustee’s time and attendance on all
matters in connection with the enforcement of







	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	20





 









 






	 	 	 	Beneficiaries’ rights under this deed, the Guarantee Trust and each Relevant Document, as
separately agreed by the Guarantor and the Guarantee Trustee).






	 	(b)	 	If the Guarantee Trustee is required at any time to undertake:






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






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






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






	 	(a)	 	to notify the Beneficiaries of any change in the Guarantee Trustee’s
principal office and address for notices under this deed;
	 
	 	(b)	 	to maintain the Register in accordance with clause 9;
	 
	 	(c)	 	to diligently perform its obligations under the Intercreditor Deed;
	 
	 	(d)	 	in relation to each matter arising under or in connection with the
Intercreditor Deed which requires the exercise of any right or discretion vested in
the Financiers collectively (as therein defined) or the Guarantee Trustee (on behalf
of the Financiers (as therein defined)) (including, without limitation, a request for
consent or the waiver of a right), to:






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






	 	(A)	 	notifies the Beneficiary of the details
of the matter and the legal basis (by reference to the particular
clause of the Intercreditor Deed) for the exercise of a right or
discretion by the Financiers, or the Guarantee Trustee on their
behalf, in relation to the matter; and







	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	21





 









 












	 	(B)	 	requests the Beneficiary to advise in
writing, with such details as the Guarantee Trustee may request and
within five Business Days of the date of the notice (or such
shorter period as the Guarantee Trustee determines is reasonable
having regard to all relevant circumstances):






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






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






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






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






	 	(f)	 	in any Insolvency of the Guarantor:






	 	(i)	 	to distribute all Notices of Voting in Insolvency, and to
vote on any matter or matters the subject of a Notice of Voting in
Insolvency, in accordance with clause 16.








	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	22





 









 












	 	(ii)	 	(if required for the purposes of any proceedings relating
to, or in connection with, the Insolvency of the Guarantor) to separately
prove for all amounts of Finance Money Debt notified by each Beneficiary in
accordance with clause 7.4(e)(ii). For the avoidance of doubt, each
Beneficiary expressly authorises the Guarantee Trustee to prove for all
amounts of Finance Money Debt owing to it in the name of the Guarantee
Trustee, in the name of the Guarantee Trustee as trustee for that
Beneficiary or in the name of that Beneficiary;
	 
	 	(iii)	 	to distribute all Recovered Money in accordance with
clause 17.






	7.5	 	No other duties






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






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






	 	(c)	 	Except in the case of manifest error, the Guarantee Trustee may rely upon
any certification, notification or other written advice given to it in good faith as
being conclusive on its face and is not obliged to make any inquiries as to the
correctness of the contents of that certificate, notification or advice.
	 
	 	(d)	 	Each Beneficiary expressly authorises the Guarantee Trustee to act in
accordance with the express terms of this deed, notwithstanding that in doing so the
Guarantee Trustee may be in breach of any fiduciary or other duties owed by it to
that Beneficiary.
	 
	 	(e)	 	Each Beneficiary expressly authorises the Guarantee Trustee to intermingle
the Recovered Money prior to any distribution under clause 17 to the extent permitted
by applicable law.
	 
	 	(f)	 	Each Beneficiary expressly waives any right or action it may have in law or
equity against the Guarantee Trustee, arising from any action the Guarantee Trustee
may take in accordance with clause 7.5(d) and 7.5(e).






	7.6	 	Delegation






	 	(a)	 	The Guarantee Trustee may employ agents and attorneys and may delegate any of
its rights or obligations in the capacity as trustee under this deed without
notifying any person of the delegation.







	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	23





 









 












	 	(b)	 	The Guarantee Trustee agrees to exercise reasonable care in selecting
delegates and to supervise their actions.
	 
	 	(c)	 	The Guarantee Trustee is responsible for any loss arising due to the fraud,
gross negligence or wilful misconduct of its delegate or gross or wilful breach by
the delegate of their obligations where that delegate is a Related Entity to the
Guarantee Trustee.
	 
	 	(d)	 	For the avoidance of doubt, in relation to each separate trust created
pursuant to clause 5.1, the Guarantee Trustee may employ the same or separate agents
and attorneys and may delegate any of its rights or obligations in the capacity as
trustee under this deed to the same or separate persons to those agents, attorneys
and delegates employed or appointed for any other trust created pursuant to clause
5.1.






	7.7	 	Indemnity






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






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






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






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






	 	(i)	 	reasonably claims a payment from the Guarantor under
clause 22.1; and







	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	24





 









 












	 	(ii)	 	does not receive it within seven days after the claim is
made.






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






	7.8	 	Payment by Beneficiaries
	 
	 	 	If the Guarantee Trustee:






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






	 	 	and the Guarantee Trustee reasonably considers this could result in the Guarantor becoming
obliged to pay an amount to the Guarantee Trustee under clause 22.1, then the Guarantee
Trustee:






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






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






	7.9	 	Adjustments amongst Beneficiaries






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







	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	25





 









 












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






	8	 	Change of Guarantee Trustee
	 
	8.1	 	Retirement
	 
	 	 	The Guarantee Trustee may retire by giving the Guarantor and each Beneficiary at
least 90 days’ notice of its intention to do so and without being required to give any
reasons for that retirement.
	 
	8.2	 	Removal
	 
	 	 	If the Guarantee Trustee breaches any material obligation under this deed and (if
the breach is capable of remedy) does not correct the breach within 30 days, or if the
Guarantee Trustee becomes Insolvent, the Guarantor may remove the Guarantee Trustee as
guarantee trustee under this deed by giving the Guarantee Trustee at least 45 days’
notice.
	 
	8.3	 	Permitted successors
	 
	 	 	Subject to the Intercreditor Deed, the successor guarantee trustee must be a
reputable and experienced professional trustee company, bank or financial institution (or
a Related Entity of any of them) nominated by the Guarantor.
	 
	8.4	 	When retirement or removal takes effect
	 
	 	 	The retirement or removal of the Guarantee Trustee takes effect when both of the
requirements in paragraphs (a) and (b) have been met or if the circumstances in paragraph
(c) apply:






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







	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	26





 









 






	 	 	 	the Guarantee Trustee has the approval of an appropriate court to cease acting
as guarantee trustee under this deed.






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






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






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






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






	9	 	Register
	 
	9.1	 	Establishment and maintenance of Register






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






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






	 	(a)	 	the name and address of each Beneficiary; and
	 
	 	(b)	 	in relation to each Beneficiary, a list of each Finance Document; and
	 
	 	(c)	 	in respect of each Finance Document, the date, the parties to it and the
name of it; and
	 
	 	(d)	 	the date of each entry in the Register; and







	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	27





 









 












	 	(e)	 	particulars of changes notified to the Guarantee Trustee of information
recorded in the Register; and
	 
	 	(f)	 	any other particulars as the Guarantee Trustee thinks fit.






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






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






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






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







	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	28





 









 











James Hardie — Guarantee Trust Deed




Part 3 Guarantee





	10	 	Guarantee and indemnity
	 
	10.1	 	Guarantee






	 	(a)	 	The Guarantor unconditionally and irrevocably guarantees in accordance with,
and on the terms of this deed, and for the benefit of each Beneficiary and the
Guarantee Trustee payment of the Guaranteed Money.
	 
	 	(b)	 	If the Debtor does not pay the Guaranteed Money on time and in accordance
with the Finance Documents then, subject to clause 10.1(c), the Guarantor agrees to
pay the Guaranteed Money to:






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






	 	(c)	 	A demand on the Guarantor under this clause 10.1:






	 	(i)	 	may be made only if the Beneficiary has first made a
demand on the Debtor and the demand is not satisfied within 2 Business Days;
	 
	 	(ii)	 	may be made at any time and from time to time; and
	 
	 	(iii)	 	must be made in writing in accordance with clause 26.






	10.2	 	Indemnity






	 	(a)	 	The Guarantor indemnifies in accordance with, and on the terms of this deed,
each Beneficiary and the Guarantee Trustee against any liability or loss arising, and
any Costs it suffers or incurs:






	 	(i)	 	if the Debtor does not, or is unable to, pay the
Guaranteed Money in accordance with the Finance Documents; or
	 
	 	(ii)	 	if an obligation the Debtor would otherwise have to pay
the Guaranteed Money (or which would have been Guaranteed Money had it not
been irrecoverable) is found to be unenforceable, void or voidable; or
	 
	 	(iii)	 	if an obligation the Guarantor would otherwise have
under clause 10.1 is found to be unenforceable; or
	 
	 	(iv)	 	if the Beneficiary or the Guarantee Trustee is obliged,
or agrees, to pay an amount to a trustee in bankruptcy or liquidator (of an
Insolvent person) in connection with a







	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	29





 









 






	 	 	 	payment by the Guarantor or the Debtor. (For example, the Beneficiary may have
to, or may agree to, pay interest on the amount); or






	 	(v)	 	if the Guarantor defaults under clause 10.1.






	 	(b)	 	Subject to clause 10.1(c), the Guarantor agrees to pay amounts due under
this indemnity to:






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






	 	(c)	 	A demand on the Guarantor under this clause 10.1:






	 	(i)	 	may be made at any time and from time to time; and
	 
	 	(ii)	 	must be made in writing in accordance with clause 26.






	11	 	Interest
	 
	11.1	 	Obligation to pay interest
	 
	 	 	The Guarantor agrees to pay interest at the Default Rate on:






	 	(a)	 	any part of the Guaranteed Money which is due for payment but which is not
otherwise incurring interest; and
	 
	 	(b)	 	any amount payable by it under this deed (other than under clause 10.1)
which is not paid on the due date for payment.






	 	 	The interest accrues daily from (and including) the due date to (but excluding) the date
of actual payment and is calculated on actual days elapsed and either a 360 or 365 day
year, whichever is the length of time customarily adopted for such calculations for the
currency in which the relevant amount is denominated.
	 
	 	 	The Guarantor agrees to pay interest under this clause on demand from the Beneficiary.






	11.2	 	Compounding
	 
	 	 	Interest payable under clause 11.1 which is not paid when due for payment may be
added to the overdue amount by the Beneficiary on the last Business Day of each calendar
month. Interest is payable on the increased overdue amount at the Default Rate in the
manner set out in clause 11.1.







	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	30





 









 












	11.3	 	Interest following judgment
	 
	 	 	If a liability becomes merged in a judgment, the Guarantor agrees to pay interest
on the amount of that liability as an independent obligation. This interest:






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






	 	 	The Guarantor agrees to pay interest under this clause on demand from the Beneficiary.
	 
	12	 	Extent of guarantee and indemnity






	 	(a)	 	The Guarantee is a continuing obligation despite any intervening payment,
settlement or other thing and extends to all of the Guaranteed Money.
	 
	 	(b)	 	Subject to compliance by the Beneficiary with clauses 10.1(c) and 26, the
Guarantor waives any right it has of first requiring the Guarantee Trustee or the
Beneficiary to commence proceedings or enforce any other right against the Debtor or
any other person before claiming from the Guarantor under the Guarantee.






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






	 	(a)	 	any act or omission:






	 	(i)	 	varying or replacing any arrangement under which the
Guaranteed Money is expressed to be owing, such as by increasing a facility
limit or extending the term;
	 
	 	(ii)	 	releasing or discharging the Debtor (including, without
limitation, discharge by operation of law) or giving the Debtor a concession
(such as more time to pay);
	 
	 	(iii)	 	releasing any person who gives a guarantee or indemnity
in connection with any of the Debtor’s obligations;
	 
	 	(iv)	 	releasing, losing the benefit of, or not obtaining any
Security Interest or negotiable instrument;







	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	31





 









 












	 	(v)	 	by which the obligations of any person who guarantees any
of the Debtor’s obligations (including under the Guarantee) may not be
enforceable;
	 
	 	(vi)	 	by which any person who was intended to guarantee any of
the Debtor’s obligations does not do so, or does not do so effectively;
	 
	 	(vii)	 	by which a person who is a co-surety or co-indemnifier
for payment of the Guaranteed Money is discharged under an agreement or by
operation of law;
	 
	 	(viii)	 	by which any Security Interest which could be registered is not
registered,






	 	 	 	or any other thing causing any prejudice (including, but not limited to, material
prejudice) to any person;






	 	(b)	 	a person dealing in any way with a Security Interest, guarantee, indemnity,
judgment or negotiable instrument;
	 
	 	(c)	 	the death, mental or physical disability, incapacity or Insolvency or any
legal limitation of any person including the Guarantor or the Debtor;
	 
	 	(d)	 	changes in the membership, name or business of any person;
	 
	 	(e)	 	the Debtor opening an account with any Beneficiary;
	 
	 	(f)	 	acquiescence or delay by any Beneficiary or any other person;
	 
	 	(g)	 	an assignment of rights or a novation in connection with the Guaranteed
Money;
	 
	 	(h)	 	the acceptance of the repudiation of, or termination of, any Finance
Document or any other document or agreement;
	 
	 	(i)	 	any payment to a Beneficiary, including any payment which at the payment
date or at any time after the payment date is, in whole or in part, illegal, void,
voidable, avoided or unenforceable.






	 	 	This clause 13 applies regardless of whether the Guarantor is aware of, has consented to
or is given notice of any act, omission, matter or thing referred to in this clause 13.
This clause 13 does not limit the obligations of the Guarantor under this deed.
	 
	14	 	Guarantor’s rights
	 
	14.1	 	Guarantor’s rights are suspended
	 
	 	 	As long as there is any Guaranteed Money, the Guarantor may not, without the
consent of each Beneficiary (or, in the case of a group or syndicate of Beneficiaries, an
agent or trustee on their behalf):







	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	32





 









 












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






	14.2	 	Guarantor’s right of proof limited
	 
	 	 	The Guarantor agrees not to exercise in its capacity as a guarantor under this deed
a right of proof after an event occurs relating to the Insolvency of the Debtor or another
guarantor of the Guaranteed Money independently of an attorney appointed under clause
15.1.
	 
	15	 	Power of Attorney
	 
	15.1	 	Appointment
	 
	 	 	The Guarantor irrevocably appoints the Guarantee Trustee and each of its Authorised
Officers individually as its attorney and agrees to formally approve all action taken by
an attorney under clause 15.2.
	 
	15.2	 	Powers
	 
	 	 	Each attorney appointed under clause 15.1 may:






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







	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	33





 









 












	15.3	 	Application of insolvency dividends
	 
	 	 	The attorney need not account to the Guarantor for any dividend received on
exercising the right of proof under clause 15.2(a) except to the extent that any dividend
remains after each Beneficiary has received all of the Guaranteed Money and all other
amounts payable under the Guarantee.







	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	34





 









 











James Hardie — Guarantee Trust Deed



Part 4 Voting in Insolvency and Distribution of Recovered Money





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






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






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






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






	 	(a)	 	on behalf of each Beneficiary (in respect of that Beneficiary’s
participation in the Finance Money Debt) which instructs the Guarantee Trustee in
accordance with clause 16.1 — in accordance with those instructions; and
	 
	 	(b)	 	in respect of the Compensation Debt:






	 	(i)	 	if the Guarantee Trustee is required by the Intercreditor
Deed to vote the Compensation Debt in the manner nominated by the NSW
Government — in the manner so nominated;
	 
	 	(ii)	 	if the Guarantee Trustee is not required by the
Intercreditor Deed to vote the Compensation Debt in the manner nominated by
the NSW Government — in accordance with the instructions (advised in
accordance with clause 16.1(b)(iii)) of the Beneficiaries whose aggregate
participation in the






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	35





 









 






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






	 	 	For the avoidance of doubt, in relation to each separate trust created pursuant to clause
5.1, the Guarantee Trustee may employ or appoint the same or separate proxies,
representatives, agents or attorneys to vote on any matter or matters the subject of a
Notice of Voting in Insolvency to those proxies, representatives, agents or attorneys
employed or appointed for any other trust created pursuant to clause 5.1.
	 
	17	 	Distribution of Recovered Money
	 
	17.1	 	How the Guarantee Trustee is to distribute
	 
	 	 	The Guarantee Trustee agrees to distribute all Recovered Money as follows:






	 	(a)	 	first, to itself for its Costs (including but not limited to costs in
connection with enforcement under the Intercreditor Deed) and other amounts due to it
in its capacity as trustee of the Guarantee Trust; and
	 
	 	(b)	 	secondly, to the extent of any balance after payment of amounts due to the
Guarantee Trustee under clause 17.1(a), to the Beneficiaries to satisfy the Finance
Money Debt, so that each Beneficiary receives its Proportion of the Recovered Money;
	 
	 	(c)	 	thirdly, to the extent of any balance after repayment of the Finance Money
Debt, to the Charitable Fund (or otherwise for the benefit of the Charitable Fund or
the beneficiaries of the Charitable Fund) to satisfy the Compensation Debt; and
	 
	 	(d)	 	fourthly, to the extent of any balance after repayment of the Compensation
Debt, to the Guarantor (for its own account).






	 	 	To the extent Recovered Money has been received by the Guarantee Trustee after an
Insolvency of the Guarantor, which Insolvency has led to a partial payment of the Finance
Money Debt or Compensation Debt, the Finance Money Debt referred to in paragraph (b) above
shall be calculated taking into account only that part of the Finance Money Debt which has
been irrevocably admitted in the Insolvency.






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	36






 









 












	17.2	 	Manner of distribution
	 
	 	 	The Guarantee Trustee agrees to distribute amounts to each Beneficiary promptly
after receipt in immediately available funds, to an account nominated in writing by the
Beneficiary.
	 
	17.3	 	Receipt by Beneficiary not through Guarantee Trustee
	 
	 	 	Each Beneficiary agrees to notify the Guarantee Trustee (after the date of the
notice issued by the Guarantee Trustee under clause 7.4(e) of this deed) promptly of its
receipt from the Guarantor (other than by payment through the Guarantee Trustee) of any
amount of Finance Money Debt on or after the commencement of an Insolvency of the
Guarantor (including, without limitation, a recovery by set-off (including under clause
27.4 of this deed) or banker’s lien). The parties acknowledge that a receipt by way of
set-off occurs at the time the Beneficiary applies the set-off in its books of account,
irrespective of the time when the amount set off was deposited with that party.
	 
	17.4	 	Accounting to Guarantee Trustee
	 
	 	 	If a receipt referred to in clause 17.3 represents an amount which, had it been
received by the Guarantee Trustee, would have been distributable not only to the
Beneficiary who receives it but also to the other Beneficiaries, then the Beneficiary
agrees to pay to the Guarantee Trustee promptly following receipt of the notice issued by
the Guarantee Trustee under clause 7.4(e) of this deed an amount equivalent to the amount
received within two Business Days of receiving it. The amount paid to the Guarantee
Trustee is to be:






	 	(a)	 	taken to have been received by the Guarantee Trustee and not by the
Beneficiary who receives it (and the participation of that Beneficiary in the Finance
Money Debt is taken not to have been reduced by that amount); and
	 
	 	(b)	 	distributed by the Guarantee Trustee to the parties entitled to it in
accordance with clause 17.1.






	17.5	 	Refund to Beneficiary
	 
	 	 	If a Beneficiary who receives a payment referred to in clause 17.3 is obliged to
refund any part of it under laws relating to insolvency then, on request from the
Beneficiary, each party to which any part of the payment was distributed must repay to the
Beneficiary the proportion of the amount received by that party equal to the proportion of
the payment received by the Beneficiary which the Beneficiary is obliged to refund.
	 
	17.6	 	Deemed Payment
	 
	 	 	An amount paid under clause 17.5 will be deemed to have been a payment for the
account of the Guarantee Trustee and not to the relevant Beneficiary for its own account
and to that extent the liability to the relevant Beneficiary will not be reduced by the
amount received, other than to the extent of any distribution received by the relevant
Beneficiary under clause 17.4(b).






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	37






 









 











James Hardie — Guarantee Trust Deed




Part 5 General provisions





	18	 	Payments
	 
	18.1	 	Manner of payment by the Guarantor






	 	(a)	 	The Guarantor agrees to make payments under the Guarantee:






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






	 	(b)	 	If the Guarantee Trustee directs the Guarantor to pay a particular person
or in a particular manner, the Guarantor is taken to have satisfied its obligation to
the Guarantee Trustee by paying in accordance with the direction.






	18.2	 	Direction to pay
	 
	 	 	The Guarantee Trustee directs that until the Guarantor becomes Insolvent or would
become Insolvent by paying the Compensation Debt (whichever occurs first), the Guarantor
make all payments due under the Guarantee to the Beneficiary entitled to such payments.
	 
	18.3	 	Currency of payment
	 
	 	 	The Guarantor waives any right it has in any jurisdiction to pay an amount other
than in the currency in which it is due. However, if the Beneficiary receives an amount
in a currency other than that in which it is due:






	 	(a)	 	it may convert the amount received into the due currency (even though it
may be necessary to convert through a third currency to do so) on the day and at such
rates (including spot rate, same day value rate or value tomorrow rate) as it
reasonably considers appropriate. It may deduct its usual Costs in connection with
the conversion; and
	 
	 	(b)	 	the Guarantor satisfies its obligation to pay in the due currency only to
the extent of the amount of the due currency obtained from the conversion after
deducting the Costs of the conversion.






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	38






 











 






	19	 	Application of payments
	 
	19.1	 	Application of money
	 
	 	 	Subject to the Finance Documents, each Beneficiary may apply money paid by the
Debtor, the Debtor’s estate, the Guarantor or otherwise towards satisfaction of the
Guaranteed Money and other money payable under this deed in the manner it sees fit.
	 
	19.2	 	Order of payment
	 
	 	 	Subject to the Finance Documents, each Beneficiary may use money received under
this deed towards paying any part of the Guaranteed Money the Beneficiary chooses. This
applies even if that part only falls due after the Beneficiary gives a notice of demand.
	 
	19.3	 	Suspense account
	 
	 	 	Subject to the Finance Documents, each Beneficiary may place in an
interest bearing suspense account any payment it receives towards satisfaction of the
Guaranteed Money (and any net interest on that payment after tax) for as long as it thinks
prudent and need not apply the payment or net interest towards satisfying the Guaranteed
Money or other money payable under this deed.
	 
	19.4	 	Remaining money
	 
	 	 	Each Beneficiary agrees to pay any money remaining after the Guaranteed Money is
paid either to the Guarantor (which the Beneficiary may do by paying it into an account in
the Guarantor’s name) or to another person entitled to it. In doing so, it does not incur
any liability to the Guarantor. The Beneficiary is not required to pay the Guarantor
interest on any money remaining after the Guaranteed Money is paid.
	 
	19.5	 	Credit from date of receipt
	 
	 	 	The Guarantor is only credited with money from the date the Beneficiary actually
receives it.
	 
	20	 	Withholding tax
	 
	20.1	 	Payments by Guarantor
	 
	 	 	If a law requires the Guarantor to deduct or withhold an amount in respect of Taxes
(other than Indirect Taxes) in respect of a payment under this deed such that a
Beneficiary (“Indemnified Party”) would not actually receive on the due date the full
amount provided for under this deed, then:






	 	(a)	 	the Guarantor agrees to deduct the amount for such Taxes and any further
deduction applicable to any further payment due under paragraph (c) below; and
	 
	 	(b)	 	the Guarantor agrees to pay an amount equal to the amount deducted or withheld
to the relevant authority in accordance with applicable law; and







	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	39




 









 












	 	(c)	 	unless the Tax is an Excluded Tax, the amount payable is increased so that,
after making the deduction or withholding and further deductions or withholdings
applicable to additional amounts payable under this paragraph (c), the Indemnified
Party is entitled to receive (at the time the payment is due) the amount it would
have received if no deductions or withholdings had been required.






	20.2	 	Tax credit
	 
	 	 	If and to the extent that any Beneficiary is able in its opinion to apply for or
otherwise take advantage of any offsetting tax credit, tax rebate or other similar tax
benefit out of or in conjunction with any deduction or withholding which gives rise to an
obligation on the Guarantor to pay any additional amount pursuant to clause 20.1, that
Beneficiary shall:






	 	(a)	 	give notice thereof to the Guarantor and take steps to obtain that credit,
rebate or benefit; and
	 
	 	(b)	 	to the extent that in its opinion it can do so without prejudice to the
retention of the credit, rebate or benefit, and upon receipt thereof, reimburse to
the Guarantor such amount of the credit, rebate or benefit as that Beneficiary shall,
in its opinion (acting reasonably), have determined to be attributable to the
deduction or withholding. In complying with this clause, no Beneficiary need
disclose to the Guarantor information about their tax affairs or order them in a
particular way.






	21	 	Indirect Taxes






	 	(a)	 	All payments to be made by the Guarantor under or in connection with this deed
have been calculated without regard to Indirect Tax. If all or part of any such
payment is the consideration for a taxable supply or chargeable with Indirect Tax
then, when the Guarantor makes the payment:






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






	 	(b)	 	Where this deed requires the Guarantor to reimburse a Beneficiary for any
Costs or expenses, the Guarantor shall also at the same time pay and indemnify that
Beneficiary against all Indirect Tax incurred by that Beneficiary in respect of the
Costs or expenses save to the
extent that that Beneficiary is entitled to repayment or credit in respect of the
Indirect Tax. The Beneficiary will promptly provide to the Guarantor a tax
invoice complying with the relevant law relating to that Indirect Tax.






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	40




 









 












	22	 	Costs
	 
	22.1	 	What the Guarantor agrees to pay
	 
	 	 	The Guarantor agrees to pay or reimburse the Guarantee Trustee and each Beneficiary
on demand for:






	 	(a)	 	its reasonable Costs in connection with:






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






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






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






	 	(a)	 	any difference arising from converting the other currency if the rate of
exchange used by the Beneficiary under clause 18.3 for converting currency when it
receives a payment in the other currency is less favourable to the Beneficiary than
the rate of exchange used for the purpose of the judgment, order or acceptance of
proof of debt; and
	 
	 	(b)	 	the Costs of conversion.






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






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	41




 









 












	 	(a)	 	the Beneficiary is immediately entitled as against the Guarantor to the
rights in respect of the Guaranteed Money to which it was entitled immediately before
the transaction; and






	 	(b)	 	on request from the Beneficiary, the Guarantor agrees to do anything
(including signing any document) reasonably required to restore to the Beneficiary
the Guarantee and any Security Interest held by it from the Guarantor immediately
before the transaction.






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






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






	 	(a)	 	any Security Interest, guarantee or other right or remedy to which a
Beneficiary is entitled; or






	 	(b)	 	a judgment which a Beneficiary obtains against the Guarantor, the Debtor or
any other person in connection with the Guaranteed Money.






	 	 	The Beneficiary may still exercise its rights under this deed as well as under the
judgment, Security Interest or right or remedy.
	 
	25	 	Dealings
	 
	25.1	 	Dealings by the Guarantor with the Compensation Debt
	 
	 	 	Without the consent of each Beneficiary (or, in the case of a group or syndicate of
Beneficiaries, an agent or trustee on their behalf), the Guarantor may not:






	 	(a)	 	vary, amend or replace the Final Funding Agreement or the Fund Guarantee,
or enter into an agreement having that effect;
	 
	 	(b)	 	during the Insolvency of the Guarantor, exercise any right of set-off in
respect of the Compensation Debt (except as contemplated by clauses 4.3 and 6.2 of
the Intercreditor Deed);
	 
	 	(c)	 	create or allow to exist any Security Interest or guarantee, indemnity or
assurance against financial loss in respect of the Compensation Debt other than the
Fund Guarantee or a guarantee provided in replacement for the Fund Guarantee in
accordance with the Final Funding Agreement; or
	 
	 	(d)	 	enter into any arrangement, take any action or fail to do any thing, which
results in the rights of the Fund Trustee and the NSW Government in connection with
Compensation Debt not being subject to the arrangements set out in the Intercreditor
Deed,






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	42




 









 












	 	 	provided that such consent is not to be unreasonably withheld if such action is not
adverse in any material respect to the interests of the Beneficiaries under the
Intercreditor Deed.
	 
	25.2	 	Dealings by the Guarantor
	 
	 	 	The Guarantor may not assign or otherwise deal with its rights under this deed or
allow any interest in it to arise or be varied, without the consent of each Beneficiary
(or, in the case of a group or syndicate of Finance Beneficiaries, an agent or trustee on
their behalf).
	 
	25.3	 	Dealings by Beneficiaries
	 
	 	 	Subject to the Finance Documents, a Beneficiary may assign or otherwise deal with
its rights under this deed in any way it considers appropriate. If a Beneficiary does
this, the Guarantor may not claim against any assignee (or any other person who has an
interest in this deed) any right of set-off or other rights it has against the
Beneficiary.
	 
	26	 	Notices
	 
	26.1	 	Form
	 
	 	 	Unless expressly stated otherwise in this deed, all demands, notices, certificates,
consents, approvals, waivers and other communications in connection with this deed
(“Notices”) must be in writing, signed by an Authorised Officer of the sender and marked
for attention as set out or referred to in the Details or, if the recipient has notified
otherwise, then marked for attention in the way last notified.
	 
	26.2	 	Demand under Guarantee
	 
	 	 	Any demand made by a Beneficiary under the Guarantee must comply with the following
requirements (in addition to those contained in clause 26.1):






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






	26.3	 	Delivery
	 
	 	 	Notices must be:






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






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	43




 









 












	 	(c)	 	sent by fax to the fax number set out or referred to in the Details (or, in
the case of a Beneficiary, the address identified in the Register).






	 	 	However, if the intended recipient has notified a changed postal address or changed fax
number, then the communication must be to that address or number.
	 
	26.4	 	When effective
	 
	 	 	Notices take effect from the time they are received unless a later time is
specified in them.
	 
	26.5	 	Receipt — postal
	 
	 	 	If sent by post, notices are taken to be received three Business Days after posting
(or five Business Days after posting if sent across national boundaries).
	 
	26.6	 	Receipt — fax
	 
	 	 	If sent by fax, notices are taken to be received at the time shown in the
transmission report as the time that the whole fax was sent.
	 
	27	 	General
	 
	27.1	 	Consents 
	 
	 	 	The Guarantor agrees to comply with all conditions in any consents given in
connection with this deed if the Guarantor relies on that consent in performing its
obligations under this deed.
	 
	27.2	 	Prompt performance
	 
	 	 	If this deed specifies when the Guarantor agrees to perform an obligation, it
agrees to perform it by the time specified. The Guarantor agrees to perform all other
obligations promptly.
	 
	27.3	 	Certificates
	 
	 	 	A Beneficiary may give the Guarantee Trustee or the Guarantor a certificate about
an amount payable or other matter in connection with this deed or a Finance Document. The
certificate is sufficient evidence of the amount or matter, unless it is proved to be
incorrect.
	 
	27.4	 	Set-off
	 
	 	 	A Beneficiary may set off any amount due for payment by the Beneficiary to the
Guarantor against any amount due for payment by the Guarantor to the Beneficiary under
this deed. This does not restrict any right of insolvency set-off which may arise under
Dutch law.












	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	44




 









 












	27.5	 	Discretion in exercising rights 
	 
	 	 	A Beneficiary may exercise a right or remedy or give or refuse its consent in any
way it considers appropriate (including by imposing conditions), unless this deed
expressly states otherwise.
	 
	27.6	 	Partial exercising of rights 
	 
	 	 	If a Beneficiary does not exercise a right or remedy fully or at a given time, the
Beneficiary may still exercise it later.
	 
	27.7	 	Indemnities
	 
	 	 	The indemnities in this deed are continuing obligations, independent of the
Guarantor’s other obligations under this deed and continue after this deed ends. It is
not necessary for a Beneficiary to incur expense or make payment before enforcing a right
of indemnity under this deed.
	 
	27.8	 	Inconsistent law
	 
	 	 	To the extent permitted by law, this deed prevails to the extent it is inconsistent
with any law.
	 
	27.9	 	Supervening legislation
	 
	 	 	Any present or future legislation which operates to vary the obligations of the
Guarantor in connection with this deed with the result that the Beneficiaries’ rights,
powers or remedies are adversely affected (including by way of delay or postponement) is
excluded except to the extent that its exclusion is prohibited or rendered ineffective by
law.
	 
	27.10	 	Remedies cumulative 
	 
	 	 	The rights and remedies of each Beneficiary under this deed are in addition to
other rights and remedies given by law independently of this deed.
	 
	27.11	 	Time of the essence
	 
	 	 	Time is of the essence in this agreement in respect of an obligation of the
Guarantor to pay money.
	 
	27.12	 	Variation and waiver
	 
	 	 	Unless this deed expressly states otherwise, a provision of this deed, or right
created under it, may not be waived or varied except in writing signed by the party or
parties to be bound and with the prior written consent of each Beneficiary (or, in the
case of a group or syndicate of Beneficiaries, an agent or trustee on their behalf).
	 
	27.13	 	Confidentiality 
	 
	 	 	No party to this deed, nor any Beneficiary, may disclose information provided by
any party or Beneficiary that is not publicly available (including the existence of or
contents of this deed or any Finance Document) except:






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	45




 









 












	 	(a)	 	to any person in connection with an exercise of rights or (subject to
compliance with clause 25) a dealing with rights or obligations under this deed
(including when a Beneficiary consults other Beneficiaries in connection with
preparatory steps such as negotiating with any potential assignee or potential
sub-participant or other person who is considering contracting with the Beneficiary
in connection with a Finance Document); or
	 
	 	(b)	 	to officers, employees, legal and other advisers and auditors of any party
to this deed or any Beneficiary, provided the recipient agrees to act consistently
with this clause 27.13; or
	 
	 	(c)	 	to any party to a Finance Document or any Related Entity of any party to a
Finance Document, provided the recipient agrees to act consistently with this clause
27.13; or
	 
	 	(d)	 	with the consent of the party who provided the information (such consent
not to be unreasonably withheld); or
	 
	 	(e)	 	as required by any law or stock exchange or any Government Agency.






	 	 	Each party to this deed and each Beneficiary is taken to consent to disclosures made in
accordance with this clause 27.13.
	 
	27.14	 	Further steps
	 
	 	 	The Guarantor and each Beneficiary agrees to do anything reasonably required by the
Guarantee Trustee (such as obtaining consents, signing and producing documents, producing
receipts and getting documents completed and signed):






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






	27.15	 	Counterparts
	 
	 	 	This deed may consist of a number of copies, each signed by one or more parties to
the deed. If so, the signed copies are treated as making up the one document.
	 
	27.16	 	Governing law
	 
	 	 	This deed is governed by the law in force in New South Wales. Each of the
Guarantee Trustee, the Guarantor and the Beneficiaries submit to the non-exclusive
jurisdiction of the courts of New South Wales.












	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	46




 









 












	27.17	 	Serving documents
	 
	 	 	Without preventing any other method of service, any document in a court action may
be served on a party by being delivered or left at that party’s address for service of
notices under clause 26.3.
	 
	27.18	 	Process Agent
	 
	 	 	The Guarantor appoints James Hardie Australia Pty Limited (ABN 12 084 635 558) of
Level 3, 22 Pitt Street, Sydney NSW 2000 (Attention: The Company Secretary) as its agent
for service of process to receive any document in connection with this deed. If for any
reason James Hardie Australia Pty Limited (ABN 12 084 635 558) ceases to be able to act as
process agent for the Guarantor, the Guarantor must promptly appoint another person in New
South Wales to act as its process agent and must promptly notify the Guarantee Trustee and
each Beneficiary of that appointment and the address and other contact details of the new
process agent.




EXECUTED as a deed





	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	47





 









 








James Hardie — Guarantee Trust Deed



Schedule 1(A) — Form of Beneficiary Nomination Letter (clause 1.9)




[Date]




To:   [Beneficiary]




James Hardie — Guarantee Trust Deed — Beneficiary Nomination Letter



We refer to the James Hardie — Guarantee Trust Deed between James Hardie Industries N.V.
(with corporate seat in Amsterdam) and AET Structured Finance Services Pty Limited (as Guarantee
Trustee) dated [•] 2006 (“Guarantee Trust Deed”).



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





	1.	 	we nominate the following document as a Finance Document:
	 
	 	 	Name:     [•]
	 
	 	 	Date:       [•]
	 
	 	 	Parties:   [•]
	 
	2.	 	the agreement described above, and each document named or referred to as a [“Financing
Document"] in that agreement, is a Finance Document for the purposes of the Guarantee Trust
Deed; and
	 
	3.	 	we nominate you as a “Beneficiary” in relation to that Finance Document.




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



Clauses 1 and 27.16 of the Guarantee Trust Deed apply to this letter as they were fully set out in
this letter.




For and on behalf of

JAMES HARDIE INDUSTRIES N.V.




by its Authorised Officer

Name:

Title:



 
	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	48




 









 




We accept and agree to the above nomination. We accept the benefit and obligations of the
Guarantee Trust Deed, and we agree to be bound by the terms of that deed.




For and on behalf of

[Insert name of Beneficiary]




by its Authorised Officer

Name:

Title:



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



For and on behalf of

AET STRUCTURED FINANCE SERVICES PTY LIMITED

as Guarantee Trustee




by its Authorised Officer

Name:

Title:



 
	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	49




 









 





James Hardie — Guarantee Trust Deed



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




[Date]




To:       [Guarantee Trustee]




James Hardie — Guarantee Trust Deed — Beneficiary Nomination Letter



We refer to the James Hardie — Guarantee Trust Deed between James Hardie Industries N.V.
(with corporate seat in Amsterdam) and AET Structured Finance Services Pty Limited (as Guarantee
Trustee) dated [•] 2006 (“Guarantee Trust Deed”).



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



[insert amended details for the purposes of clause 9.2].



Clauses 1 and 27.16 of the Guarantee Trust Deed apply to this letter as they were fully set out in
this letter.




For and on behalf of

[Insert name of Beneficiary]




by its Authorised Officer

Name:

Title:




 
	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	50




 









 








James Hardie — Guarantee Trust Deed



Schedule 2 — Form of Replacement Guarantee (clause 4)



Interpretation — definitions are in clause 1.




	 	 	 	 	 
	Parties	 	Guarantor and Financier
	 
	Guarantor

	 	Name
	 	 James Hardie Industries N.V.
	 
	 	 	 	 
	 

	 	Corporate seat
	 	 Amsterdam
	 
	 	 	 	 
	 

	 	Registered
Number
	 	 34106455
	 
	 	 	 	 
	 

	 	ABN
	 	 49 097 829 895
	 
	 	 	 	 
	 

	 	Address
	 	 Atrium, 8th Floor 
 Strawinskylaan
3077
 1077
ZX Amsterdam
 The
Netherlands
	 
	 	 	 	 
	 

	 	Fax
	 	 + 31 20 404 2544
	 
	 	 	 	 
	 

	 	Attention
	 	 Managing Director and Company Secretary
	 
	Financier

	 	Name
	 	 [•]
	 
	 	 	 	 
	 

	 	ABN
	 	 [•]
	 
	 	 	 	 
	 

	 	Address
	 	 [•]
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	Fax
	 	 [•]
	 
	 	 	 	 
	 

	 	Attention
	 	 [•]
	 
	Date of deed

	 	See Signing page	 	 






	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	51





 











 





General terms





	1	 	Interpretation
	 
	1.1	 	Definitions
	 
	 	 	These meanings apply unless the contrary intention appears:
	 
	 	 	Authorised Officer means:






	 	(a)	 	in the case of the 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 Financier as an Authorised Officer for the purposes of
this deed; and
	 
	 	(b)	 	in the case of the Guarantor, a person appointed by the Guarantor and
notified to the Financier as an Authorised Officer for the purposes of this deed, and
whose specimen signature is provided with such notification to the Financier.






	 	 	Business Day has the meaning given to that term in the Finance Documents.
	 
	 	 	Costs means costs, fees, disbursements, charges and expenses, including, without
limitation, where the Guarantor is liable to pay or reimburse the Costs, those incurred in
connection with advisers and, unless such Costs are incurred in connection with the
enforcement of this deed against the Guarantor, only for an amount and on a basis
previously agreed to in writing by the Guarantor.
	 
	 	 	Debtor means the person or persons primarily liable to the Financier under the Finance
Documents.
	 
	 	 	Default Rate means LIBOR plus 2% per annum. For the purpose of this definition, the
interest is calculated as if the overdue amount is a cash advance with interest periods
beginning and ending on the first and last days respectively of each calendar month (and
including both days), provided that the first interest period begins on and includes the
due date.
	 
	 	 	Details means the section of this deed headed “Details”.
	 
	 	 	Excluded Tax means:






	 	(a)	 	a Tax imposed by any jurisdiction on or assessed against the Financier as a
consequence of the Financier being a resident of or organised in or doing business in
that jurisdiction, but not any Tax:






	 	(i)	 	that is calculated on or by reference to the gross amount
of a payment derived under this deed or another document






	 	 	 	 	 

	 
	©
Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	52





 









 






	 	 	 	referred to in this deed (without the allowance of a deduction);






	 	(ii)	 	that is imposed as a result of the Financier being
considered a resident or organised or doing business in that jurisdiction
solely as a result of it having the benefit of this deed or being a party to
a transaction contemplated by this deed; or






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






	 	 	Finance Documents means [insert details]
	 
	 	 	Financier means the person so described in the Details and includes its successors and
assigns.
	 
	 	 	Government Agency means any government or any governmental, semi-governmental,
administrative, fiscal or judicial body, department, commission, authority, tribunal,
agency or entity having jurisdiction over, or in relation to the affairs of, a James
Hardie Group Member and, for the avoidance of doubt, includes, without limitation, the
Australian Taxation Office, the US Internal Revenue Service and the Dutch tax authorities.
	 
	 	 	Guaranteed Money means all amounts that:






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






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






	 	(i)	 	irrespective of the capacity in which the Debtor or the
Financier became entitled to the amount concerned;
	 
	 	(ii)	 	irrespective of the capacity in which the Debtor or the
Financier became liable in respect of the amount concerned;
	 
	 	(iii)	 	whether the Debtor or the Financier is liable as
principal debtor, as surety or otherwise;








	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	53





 









 












	 	(iv)	 	whether the Debtor is liable alone, or together with
another person;
	 
	 	(v)	 	even if the Debtor 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 Debtor 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 Debtor or the Guarantor consented
to or was aware of the assignment; or
	 
	 	(B)	 	any of the Guaranteed Money was
previously unsecured; or






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






	 	 	Guarantor means the person so described in the Details.
	 
	 	 	Indirect Tax means any goods and services tax, consumption tax, value added tax or any tax
of a similar nature.
	 
	 	 	Insolvency Event means, in respect of a person, the occurrence in respect of that person
of any event referred to in paragraphs (a) to (h) of the definition of “Insolvent” and,
for the avoidance of doubt, includes a Winding Up.
	 
	 	 	A company is Insolvent if it:






	 	(a)	 	is generally not paying, or admits in writing its inability to pay, its
debts as they become due;
	 
	 	(b)	 	files, or consents by answer or otherwise to the filing against it of, a
petition for relief or reorganisation or arrangement or any other petition in
bankruptcy, for liquidation or to take advantage of any bankruptcy, insolvency,
reorganization, moratorium or other similar law of any jurisdiction (for the
avoidance of doubt, this includes, without limitation, in respect of a person
established under Dutch law, a filing of a petition by it with any court in the
Netherlands in relation to its bankruptcy (faillissement) or suspension of payments
(surseance van betaling));
	 
	 	(c)	 	makes an assignment for the benefit of its creditors;







	 	 	 	 	 

	 
	© Mallesons Stephen
Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	54





 









 












	 	(d)	 	consents to the appointment of a custodian, receiver, receiver and manager,
trustee or other officer with similar powers with respect to it or with respect to
any substantial part of its property;
	 
	 	(e)	 	consents to the appointment of an administrator;
	 
	 	(f)	 	is adjudicated as insolvent or to be liquidated;
	 
	 	(g)	 	is subject to Winding Up; or
	 
	 	(h)	 	takes corporate action for the purpose of any of the foregoing,






	 	 	and Insolvency has a cognate meaning.
	 
	 	 	James Hardie Group means the Guarantor and its Subsidiaries and James Hardie Group Member
means any of them.
	 
	 	 	LIBOR means, in relation to any overdue amount:






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






	 	 	as of 11.00 am (London time) on the day two Business Days before the first day of an
interest period for which the interest rate is to be determined for the offering of
deposits in the Due Currency and for a period comparable to the interest period for the
overdue amount.
	 
	 	 	Related Entity has the meaning it has in the Corporations Act.
	 
	 	 	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.







	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	55





 









 












	 	 	Subsidiary in relation to a corporation means a subsidiary of the corporation for the
purposes of the Corporations Act.
	 
	 	 	Tax means any present or future tax (including Indirect Taxes), levy, impost, duty,
charge, fee, deduction, compulsory loan or withholding or any income, stamp or transaction
duty, tax or charge, in the nature of tax whatsoever called (except if imposed on, or
calculated having regard to, the net income of the Financier) and whether imposed, levied,
collected, withheld or assessed by any Government Agency and includes, but is not limited
to, any penalty, fine, charge, fee, interest or other amount payable in connection with
failure to pay or delay in paying the same.
	 
	 	 	US$, USD or US Dollars means the lawful currency of the United States of America.
	 
	 	 	Winding Up means, in respect of a company, the occurrence of any of the following:






	 	(a)	 	an order is made that it be wound up;
	 
	 	(b)	 	appointment of a liquidator to it; or
	 
	 	(c)	 	appointment of a provisional liquidator to it and the provisional
liquidator is required to admit all debts to proof or pay all debts capable of being
admitted to proof proportionately.






	 	 	In respect of a person that is established under Dutch law, Winding Up includes, without
limitation, its dissolution (ontbinding), the declaration of its bankruptcy
(faillissement) and the (provisional) granting of suspension of payments ((voorlopige)
surseance van betaling) to it.
	 
	1.2	 	References to certain general terms 
	 
	 	 	Unless the contrary intention appears, a reference in this deed to:






	 	(a)	 	a group of persons is a reference to any two or more of them collectively
and to each of them individually;
	 
	 	(b)	 	an agreement, representation or warranty in favour of two or more persons
is for the benefit of them collectively and each of them individually;
	 
	 	(c)	 	an agreement, representation or warranty by two or more persons binds them
collectively and each of them individually but an agreement, representation or
warranty by the Financier binds the Financier only;
	 
	 	(d)	 	anything (including an amount) is a reference to the whole and each part of
it (but nothing in this clause 1.2(d) implies that performance of part of an
obligation constitutes performance of the obligation);
	 
	 	(e)	 	a document (including this deed) includes any variation or replacement of
it;







	 	 	 	 	 

	 
	© Mallesons Stephen
Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	56




 









 












	 	(f)	 	law includes (without limitation) common law, principles of equity, and
laws made by any legislative body of any jurisdiction (and references to any statute,
regulation or by-law include any modification or re-enactment of or any provision
substituted for, and all statutory and subordinate instruments issued under such
statute, regulation or by-law or such provision);
	 
	 	(g)	 	the word “person” includes an individual, a firm, a body corporate, a
partnership, a joint venture, an unincorporated association and any Government
Agency;
	 
	 	(h)	 	a particular person includes a reference to the person’s executors,
administrators, successors, substitutes (including persons taking by novation) and
assigns;
	 
	 	(i)	 	the words “including”, “for example” or “such as” when introducing an
example, do not limit the meaning of the words to which the example relates to that
example or examples of a similar kind;
	 
	 	(j)	 	the Corporations Act is a reference to the Corporations Act 2001 of
Australia; and
	 
	 	(k)	 	the words “to prove for”, “prove” and “right of proof”, when used in
connection with a Winding Up or another Insolvency proceeding under Dutch law
include, without limitation, “filing”, “filing for verification purposes” and
“verification procedure”, as the context may require.






	1.3	 	Number
	 
	 	 	The singular includes the plural and vice versa.
	 
	1.4	 	Headings
	 
	 	 	Headings (including those in brackets at the beginning of paragraphs) are for
convenience only and do not affect the interpretation of this deed.
	 
	2	 	Consideration
	 
	 	 	The Guarantor acknowledges incurring obligations and giving rights under this deed
for valuable consideration received and to be received from the Financier.
	 
	3	 	Guarantee and indemnity
	 
	3.1	 	Guarantee






	 	(a)	 	The Guarantor unconditionally and irrevocably guarantees payment to the
Financier of the Guaranteed Money. If the Debtor does not pay the Guaranteed Money
on time and in accordance with the Finance Documents then, subject to clause 3.1(b),
the Guarantor agrees to pay
the Guaranteed Money to the Financier on demand from the Financier.







	 	 	 	 	 

	 
	© Mallesons Stephen
Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	57





 









 












	 	(b)	 	A demand on the Guarantor under this guarantee:






	 	(i)	 	may be made only if the Financier has first made a demand
on the Debtor and the demand is not satisfied within 2 Business Days;
	 
	 	(ii)	 	may be made at any time and from time to time; and
	 
	 	(iii)	 	must be made in writing in accordance with clause 17.






	3.2	 	Indemnity
	 
	 	 	The Guarantor indemnifies the Financier against any liability or loss arising, and
any Costs it suffers or incurs:






	 	(a)	 	if the Debtor does not, or is unable to, pay the Guaranteed Money in
accordance with the Finance Documents; or
	 
	 	(b)	 	if an obligation the Debtor would otherwise have to pay the Guaranteed
Money (or which would have been Guaranteed Money had it not been irrecoverable) is
found to be unenforceable, void or voidable; or
	 
	 	(c)	 	if an obligation the Guarantor would otherwise have under clause 3.1 is
found to be unenforceable; or
	 
	 	(d)	 	if the Financier is obliged, or agrees, to pay an amount to a trustee in
bankruptcy or liquidator (of an Insolvent person) in connection with a payment by the
Guarantor or the Debtor. (For example, the Financier may have to, or may agree to,
pay interest on the amount); or
	 
	 	(e)	 	if the Guarantor defaults under the guarantee.






	 	 	The Guarantor agrees to pay amounts due under this indemnity on demand from the Financier.






	4	 	Interest
	 
	4.1	 	Obligation to pay interest
	 
	 	 	The Guarantor agrees to pay interest at the Default Rate on:






	 	(a)	 	any part of the Guaranteed Money which is due for payment but which is not
otherwise incurring interest; and
	 
	 	(b)	 	any amount payable by it under this deed (other than under clause 3.1)
which is not paid on the due date for payment.






	 	 	The interest accrues daily from (and including) the due date to (but excluding) the date
of actual payment and is calculated on actual days
elapsed and either a 360 or 365 day year, whichever is the length of time customarily
adopted for such calculations for the currency in which the relevant amount is
denominated.







	 	 	 	 	 

	 
	© Mallesons Stephen
Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	58





 









 












	 	 	The Guarantor agrees to pay interest under this clause on demand from the Financier.
	 
	4.2	 	Compounding
	 
	 	 	Interest payable under clause 4.1 which is not paid when due for payment may be
added to the overdue amount by the Financier on the last Business Day of each calendar
month. Interest is payable on the increased overdue amount at the Default Rate in the
manner set out in clause 4.1.
	 
	4.3	 	Interest following judgment
	 
	 	 	If a liability becomes merged in a judgment, the Guarantor agrees to pay interest
on the amount of that liability as an independent obligation. This interest:






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






	 	 	The Guarantor agrees to pay interest under this clause on demand from the Financier.
	 
	5	 	Extent of guarantee and indemnity






	 	(a)	 	The guarantee in clause 3.1 is a continuing obligation despite any intervening
payment, settlement or other thing and extends to all of the Guaranteed Money.
	 
	 	(b)	 	Subject to compliance by the Financier with clauses 3.1(b) and 17, the
Guarantor waives any right it has of first requiring the Financier to commence
proceedings or enforce any other right against the Debtor or any other person before
claiming from the Guarantor under this guarantee and indemnity.






	6	 	Rights of the Financier are protected
	 
	 	 	Rights given to the Financier under this guarantee and indemnity, and the
Guarantor’s liabilities under it, are not affected by any act or omission of the Financier
or any other person or by any act, other matter or thing whatsoever, whether negligent or
not. For example, those rights and liabilities are not affected by:






	 	(a)	 	any act or omission:






	 	(i)	 	varying or replacing any arrangement under which the
Guaranteed Money is expressed to be owing, such as by increasing a facility
limit or extending the term;







	 	 	 	 	 

	 
	© Mallesons Stephen
Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	59





 









 












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






	 	 	 	or any other thing causing any prejudice (including, but not limited to, material
prejudice) to any person;
	 
	 	(b)	 	a person dealing in any way with a Security Interest, guarantee, indemnity,
judgment or negotiable instrument;
	 
	 	(c)	 	the death, mental or physical disability, incapacity, Insolvency or any
legal limitation of any person including the Guarantor or the Debtor;
	 
	 	(d)	 	changes in the membership, name or business of any person;
	 
	 	(e)	 	the Debtor opening an account with the Financier;
	 
	 	(f)	 	acquiescence or delay by the Financier or any other person;
	 
	 	(g)	 	an assignment of rights or a novation in connection with the Guaranteed
Money;
	 
	 	(h)	 	the acceptance of the repudiation of, or termination of, any Finance
Document or any other document or agreement;
	 
	 	(i)	 	any payment to the Financier, including any payment which at the payment
date or at any time after the payment date is, in whole or in part, illegal, void,
voidable, avoided or unenforceable.






	 	 	This clause 6 applies regardless of whether the Guarantor is aware of, has consented to or
is given notice of any act, omission, matter or thing referred to in this clause 6. This
clause 6 does not limit the obligations of the Guarantor under this deed.







	 	 	 	 	 

	 
	© Mallesons Stephen
Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	60





 









 












	7	 	Guarantor’s rights
	 
	7.1	 	Guarantor’s rights are suspended
	 
	 	 	As long as there is any Guaranteed Money, the Guarantor may not, without the
Financier’s consent:






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






	7.2	 	Guarantor’s right of proof limited
	 
	 	 	The Guarantor agrees not to exercise in its capacity as a guarantor under this deed
a right of proof after an event occurs relating to the Insolvency of the Debtor or another
guarantor of the Guaranteed Money independently of an attorney appointed under clause 8.1.
	 
	8	 	Power of Attorney
	 
	8.1	 	Appointment
	 
	 	 	The Guarantor irrevocably appoints the Financier and each of its Authorised
Officers individually as its attorney and agrees to formally approve all action taken by
an attorney under clause 8.2.
	 
	8.2	 	Powers
	 
	 	 	Each attorney appointed under clause 8.1 may:






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








	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	61






 









 












	 	(c)	 	exercise its powers even if this involves a conflict of duty and even if it
has a personal interest in doing so.






	8.3	 	Application of insolvency dividends
	 
	 	 	The attorney need not account to the Guarantor for any dividend received on
exercising the right of proof under clause 8.2(a) except to the extent that any dividend
remains after the Financier has received all of the Guaranteed Money and all other amounts
payable under this guarantee and indemnity.
	 
	9	 	Payments
	 
	9.1	 	Manner of payment
	 
	 	 	The Guarantor agrees to make payments under this guarantee and indemnity:






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






	9.2	 	Currency of payment
	 
	 	 	The Guarantor waives any right it has in any jurisdiction to pay an amount other
than in the currency in which it is due. However, if the Financier receives an amount in
a currency other than that in which it is due:






	 	(a)	 	it may convert the amount received into the due currency (even though it
may be necessary to convert through a third currency to do so) on the day and at such
rates (including spot rate, same day value rate or value tomorrow rate) as it
reasonably considers appropriate. It may deduct its usual Costs in connection with
the conversion; and
	 
	 	(b)	 	the Guarantor satisfies its obligation to pay in the due currency only to
the extent of the amount of the due currency obtained from the conversion after
deducting the Costs of the conversion.






	10	 	Application of payments
	 
	10.1	 	Application of money
	 
	 	 	The Financier may apply money paid by the Debtor, the Debtor’s estate, the
Guarantor or otherwise towards satisfaction of the Guaranteed Money and other money
payable under this deed in the manner it sees fit.
	 
	10.2	 	Order of payment
	 
	 	 	The Financier may use money received under this deed towards paying any part of the
Guaranteed Money the Financier chooses. This applies even if that part only falls due
after the Financier gives a notice of demand.








	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	62






 









 












	10.3	 	Suspense account
	 
	 	 	The Financier may place in an interest bearing suspense account any
payment it receives towards satisfaction of the Guaranteed Money (and any net interest on
that payment after tax) for as long as it thinks prudent and need not apply the payment or
net interest towards satisfying the Guaranteed Money or other money payable under this
deed.
	 
	10.4	 	Remaining money
	 
	 	 	The Financier agrees to pay any money remaining after the Guaranteed Money is paid
either to the Guarantor (which the Financier may do by paying it into an account in the
Guarantor’s name) or to another person entitled to it. In doing so, it does not incur any
liability to the Guarantor. The Financier is not required to pay the Guarantor interest
on any money remaining after the Guaranteed Money is paid.
	 
	10.5	 	Credit from date of receipt
	 
	 	 	The Guarantor is only credited with money from the date the Financier actually
receives it.
	 
	11	 	Withholding tax
	 
	11.1	 	Payments by Guarantor
	 
	 	 	If a law requires the Guarantor to deduct or withhold an amount in respect of Taxes
(other than Indirect Taxes) in respect of a payment under this deed such that the
Financier would not actually receive on the due date the full amount provided for under
this deed, then:






	 	(a)	 	the Guarantor agrees to deduct the amount for such Taxes and any further
deduction applicable to any further payment due under paragraph (c) below; and
	 
	 	(b)	 	the Guarantor agrees to pay an amount equal to the amount deducted or
withheld to the relevant authority in accordance with applicable law; and
	 
	 	(c)	 	unless the Tax is an Excluded Tax, the amount payable is increased so that,
after making the deduction or withholding and further deductions or withholdings
applicable to additional amounts payable under this paragraph (c), the Financier is
entitled to receive (at the time the payment is due) the amount it would have
received if no deductions or withholdings had been required.






	11.2	 	Tax credit
	 
	 	 	If and to the extent that the Financier is able in its opinion to apply for or
otherwise take advantage of any offsetting tax credit, tax rebate or other similar tax
benefit out of or in conjunction with any deduction or withholding which gives rise to an
obligation on the Guarantor to pay any additional amount pursuant to clause 11.1, the
Financier shall:








	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	63






 









 












	 	(a)	 	give notice thereof to the Guarantor and take steps to obtain that credit,
rebate or benefit; and
	 
	 	(b)	 	to the extent that in its opinion it can do so without prejudice to the
retention of the credit, rebate or benefit, and upon receipt thereof, reimburse to
the Guarantor such amount of the credit, rebate or benefit as the Financier shall, in
its opinion (acting reasonably), have determined to be attributable to the deduction
or withholding. In complying with this clause, the Financier is not required to
disclose to the Guarantor information about its tax affairs or order them in a
particular way.






	12	 	Indirect Taxes






	 	(a)	 	All payments to be made by the Guarantor under or in connection with this deed
have been calculated without regard to Indirect Tax. If all or part of any such
payment is the consideration for a taxable supply or chargeable with Indirect Tax
then, when the Guarantor makes the payment:






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






	 	(b)	 	Where this deed requires the Guarantor to reimburse the Financier for any
Costs or expenses, the Guarantor shall also at the same time pay and indemnify the
Financier against all Indirect Tax incurred by the Financier in respect of the Costs
or expenses save to the extent that the Financier is entitled to repayment or credit
in respect of the Indirect Tax. The Financier will promptly provide to the Guarantor
a tax invoice complying with the relevant law relating to that Indirect Tax.






	13	 	Costs
	 
	13.1	 	What the Guarantor agrees to pay
	 
	 	 	The Guarantor agrees to pay or reimburse the Financier on demand for:






	 	(a)	 	the Financier’s reasonable Costs in connection with:






	 	(i)	 	the registration of, and payment of Taxes on, this deed;
and
	 
	 	(ii)	 	giving and considering consents, waivers and releases
requested by the Guarantor in connection with this deed;






	 	(b)	 	the Financier’s Costs in exercising, enforcing or preserving rights against
the Guarantor under this deed; and








	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	64






 









 












	 	(c)	 	Taxes and fees (including registration fees) and fines and penalties in
respect of fees paid, or that the Financier reasonably believes are payable, in
connection with this deed or a payment or receipt or any other transaction involving
the Guarantor contemplated by this deed. However, the Guarantor need not pay a fine
or penalty in connection with Taxes or fees to the extent that it has placed the
Financier in sufficient cleared funds for the Financier to be able to pay the Taxes
or fees by the due date.






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






	 	(a)	 	any difference arising from converting the other currency if the rate of
exchange used by the Financier under clause 9.2 for converting currency when it
receives a payment in the other currency is less favourable to the Financier than the
rate of exchange used for the purpose of the judgment, order or acceptance of proof
of debt; and
	 
	 	(b)	 	the Costs of conversion.






	14	 	Reinstatement of rights
	 
	 	 	Under law relating to Insolvency Events, a person may claim that a transaction
(including a payment) in connection with this guarantee and indemnity or the Guaranteed
Money is void or voidable. If a claim is made and upheld, conceded or compromised, then:






	 	(a)	 	the Financier is immediately entitled as against the Guarantor to the
rights in respect of the Guaranteed Money to which it was entitled immediately before
the transaction; and
	 
	 	(b)	 	on request from the Financier, the Guarantor agrees to do anything
(including signing any document) reasonably required to restore to
the Financier the guarantee and indemnity and any Security Interest held by it
from the Guarantor immediately before the transaction.






	 	 	This clause applies whether or not the Financier knew, or ought to have known, that the
transaction would be void or voidable.
	 
	15	 	No merger
	 
	 	 	This deed does not merge with or adversely affect, and is not adversely affected
by, any of the following:






	 	(a)	 	any Security Interest, guarantee or other right or remedy to which the
Financier is entitled; or








	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	65






 









 






	 	(b)	 	a judgment which the Financier obtains against the Guarantor, the Debtor or
any other person in connection with the Guaranteed Money.






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






	16	 	Dealings
	 
	16.1	 	Dealings by the Guarantor
	 
	 	 	The Guarantor may not assign or otherwise deal with its rights under this deed or
allow any interest in it to arise or be varied, without the consent of the Financier.
	 
	16.2	 	Dealings by Financier
	 
	 	 	The Financier may assign or otherwise deal with its rights under this deed in any
way it considers appropriate. If the Financier does this, the Guarantor may not claim
against any assignee (or any other person who has an interest in this deed) any right of
set-off or other rights it has against the Financier.
	 
	17	 	Notices
	 
	17.1	 	Form
	 
	 	 	Unless expressly stated otherwise in this deed, all demands, notices, certificates,
consents, approvals, waivers and other communications in connection with this deed
(“Notices”) must be in writing, signed by an Authorised Officer of the sender and marked
for attention as set out or referred to in the Details or, if the recipient has notified
otherwise, then marked for attention in the way last notified.
	 
	17.2	 	Demand under guarantee
	 
	 	 	Any demand made by the Financier under the guarantee and indemnity must comply with
the following requirements (in addition to those contained in clause 17.1):






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






	17.3	 	Delivery
	 
	 	 	Notices must be:






	 	(a)	 	delivered to the address set out or referred to in the Details; or








	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	66






 









 












	 	(b)	 	sent by prepaid post (airmail if appropriate) to the address set out or
referred to in the Details; or
	 
	 	(c)	 	sent by fax to the fax number set out or referred to in the Details.






	 	 	However, if the intended recipient has notified a changed postal address or changed fax
number, then the communication must be to that address or number.
	 
	17.4	 	When effective
	 
	 	 	Notices take effect from the time they are received unless a later time is
specified in them.
	 
	17.5	 	Receipt — postal
	 
	 	 	If sent by post, notices are taken to be received three Business Days after posting
(or five Business Days after posting if sent across national boundaries).
	 
	17.6	 	Receipt — fax
	 
	 	 	If sent by fax, notices are taken to be received at the time shown in the
transmission report as the time that the whole fax was sent.
	 
	18	 	General
	 
	18.1	 	Consents 
	 
	 	 	The Guarantor agrees to comply with all conditions in any consents given in
connection with this deed if the Guarantor relies on that consent in performing its
obligations under this deed.
	 
	18.2	 	Prompt performance
	 
	 	 	If this deed specifies when the Guarantor agrees to perform an obligation, it
agrees to perform it by the time specified. The Guarantor agrees to perform all other
obligations promptly.
	 
	18.3	 	Certificates
	 
	 	 	The Financier may give the Guarantor a certificate about an amount payable or other
matter in connection with this deed or a Finance Document. The certificate is sufficient
evidence of the amount or matter, unless it is proved to be incorrect.
	 
	18.4	 	Set-off
	 
	 	 	The Financier may set off any amount due for payment by the Financier to the
Guarantor against any amount due for payment by the Guarantor to the Financier under this
deed. This does not restrict any right of insolvency set-off which may arise under Dutch
law.








	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	67






 









 












	18.5	 	Discretion in exercising rights
	 
	 	 	The 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.
	 
	18.6	 	Partial exercising of rights
	 
	 	 	If the Financier does not exercise a right or remedy fully or at a given time, the
Financier may still exercise it later.
	 
	18.7	 	Indemnities
	 
	 	 	The indemnities in this deed are continuing obligations, independent of the
Guarantor’s other obligations under this deed and continue after this deed ends. It is
not necessary for the Financier to incur expense or make payment before enforcing a right
of indemnity under this deed.
	 
	18.8	 	Inconsistent law
	 
	 	 	To the extent permitted by law, this deed prevails to the extent it is inconsistent
with any law.
	 
	18.9	 	Supervening legislation
	 
	 	 	Any present or future legislation which operates to vary the obligations of the
Guarantor in connection with this deed with the result that the Financier’s 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.
	 
	18.10	 	Remedies cumulative
	 
	 	 	The rights and remedies of the Financier under this deed are in addition to other
rights and remedies given by law independently of this deed.
	 
	18.11	 	Time of the essence
	 
	 	 	Time is of the essence in this agreement in respect of an obligation of the
Guarantor to pay money.
	 
	18.12	 	Variation and waiver
	 
	 	 	Unless this deed expressly states otherwise, a provision of this deed, or right
created under it, may not be waived or varied except in writing signed by the Guarantor
and the Financier.
	 
	18.13	 	Confidentiality
	 
	 	 	Neither the Guarantor nor the Financier may disclose information provided by one of
them to the other that is not publicly available (including the existence of or contents
of this deed or any Finance Document) except:






	 	(a)	 	to any person in connection with an exercise of rights or (subject to
compliance with clause 16) a dealing with rights or obligations under this deed
(including when the Financier consults other lenders to any 








	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	68






 









 






	 	 	 	member of the James
Hardie Group in connection with preparatory steps such as negotiating with any
potential assignee or potential sub-participant or other person who is considering
contracting with the Financier in connection with a Finance Document); or






	 	(b)	 	on a confidential basis, to officers, employees, legal and other advisers
and auditors of the Guarantor or the Financier; or
	 
	 	(c)	 	on a confidential basis, to any party to a Finance Document or any Related
Entity of any party to a Finance Document; or
	 
	 	(d)	 	with the consent of the party who provided the information (such consent
not to be unreasonably withheld); or
	 
	 	(e)	 	as required by any law or stock exchange or any Government Agency.






	 	 	The Guarantor and the Financier are taken to consent to disclosures made in accordance
with this clause 18.13.
	 
	18.14	 	Further steps
	 
	 	 	The Guarantor agrees to do anything reasonably required by the Financier (such as
obtaining consents, signing and producing documents, producing receipts and getting
documents completed and signed):






	 	(a)	 	to enable the Financier to exercise its rights in connection with this
deed;
	 
	 	(b)	 	to show whether the Guarantor is complying with this deed.






	18.15	 	Counterparts
	 
	 	 	This deed may consist of a number of copies, each signed by one or more parties to
the deed. If so, the signed copies are treated as making up the one document.
	 
	18.16	 	Governing law
	 
	 	 	This deed is governed by the law in force in New South Wales. The Guarantor and
the Financier submit to the non-exclusive jurisdiction of the courts of New South Wales.
	 
	18.17	 	Serving documents
	 
	 	 	Without preventing any other method of service any document in a court action may
be served on the Guarantor or the Financier by being delivered or left at that person’s
address for service of notices under clause 17.3.
	 
	18.18	 	Process Agent
	 
	 	 	The Guarantor appoints James Hardie Australia Pty Limited (ABN 12 084 635 558) of
Level 3, 22 Pitt Street, Sydney NSW 2000 (Attention: The Company Secretary) as its agent
for service of process to receive any document in connection with this deed. If for any
reason James Hardie 








	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	69






 









 






	 	 	Australia Pty Limited (ABN 12 084 635 558) ceases to be able to act as
process agent for the Guarantor, the Guarantor must promptly appoint another person in New
South Wales to act as its process agent and must promptly notify the Financier of that
appointment and the address and other contact details of the new process agent.





EXECUTED as a deed




[insert attestation clauses]








	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	70







 









 








James Hardie — Guarantee Trust Deed



Signing page





	 	 	 	 	 	 	 

	DATED: 19 December 2006
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	SIGNED, SEALED AND

	 	 	)	 	 	 
	DELIVERED by Meredith Hellicar

	 	 	)	 	 	 
	and Russell Chenu as attorneys for

	 	 	)	 	 	 
	JAMES HARDIE INDUSTRIES

	 	 	)	 	 	 
	N.V. under power of attorney dated

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	in the presence of:

	 	 	)	 	 	 
	For M. Hellicar                                       For R. Chenu
 

	 	 	)	 	 	/s/ Meredith Hellicar

	
/s/ Matthew Cunningham        /s/ Benjamin Butterfield      
	 	 	)	 	 	 
	Signature of witness

	 	 	)	 	 	/s/ Russell Chenu

	 

	 	 	)	 	 	By executing this deed each attorney
	
Matthew Cunningham               Benjamin Butterfield

	 	 	)	 	 	states that the attorney has received
	Name of witness (block letters)

	 	 	)	 	 	no notice of revocation of the power
	 

	 	 	)	 	 	of attorney
	 
	 	 	)	 	 	 
	THE COMMON SEAL of AET

	 	 	)	 	 	 
	STRUCTURED FINANCE

	 	 	)	 	 	 
	SERVICES PTY LIMITED is duly

	 	 	)	 	 	 
	affixed by authority of its Authorised

	 	 	)	 	 	 
	Officers in the presence of:

	 	 	)	 	 	 
	 
	 	 	 	 	 	 
	/s/ Stuart Howard

	 	 	 	 	 	/s/ Yvonne Drake
	 

	 	 	 	 	 	 
	Signature of authorised person

	 	 	 	 	 	Signature of authorised person
	 
	 	 	 	 	 	 
	Authorised Officer

	 	 	 	 	 	Authorised Officer
	 

	 	 	 	 	 	 
	Office held

	 	 	 	 	 	Office held
	 
	 	 	 	 	 	 
	Stuart Alexander Howard

	 	 	 	 	 	Yvonne Drake
	 

	 	 	 	 	 	 
	Name of authorised person
(block letters)

	 	 	 	 	 	Name of authorised person
(block letters)








	 	 	 	 	 

	 
	© Mallesons Stephen Jaques

8389244_16

	 	James Hardie — Guarantee Trust Deed

12 December 2006
	 	71