##### 



(JAMES HARDIE LOGO)
    

(LOGO)New South Wales Government
 James Hardie Industries N.V.
 LGTDD Pty Limited
 The State of New South Wales
 
 FINAL FUNDING AGREEMENT
 in respect of the provision of long term 
funding for
compensation arrangements for certain victims of
Asbestos-related diseases
in Australia
 
 CONFORMED COPY
 (ATANASKOVIC HARTNELL LOGO)
    
    (GILBERT TOBIN LOGO)




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i Table of Contents1. DEFINITIONS AND INTERPRETATION
    
    
    92 CONDITIONS PRECEDENT
    
    
    303 STRUCTURE
    
    
    394 THE FUND
    
    
    395 GOVERNANCE AND AUDIT OF THE FUND
    
    
    446 FUNDING OBLIGATIONS OF JHINV AND THE PERFORMING SUBSIDIARY
    
    
    507 RESTRICTIONS ON SPECIFIED DEALINGS
    
    
    558 SCOPE OF OBLIGATIONS
    
    
    809 FUNDING ARRANGEMENTS
    
    
    8110 JHINV GUARANTEE AND WIND UP AND RECONSTRUCTION EVENTS
    
    
    9011 EFFICIENCIES
    
    
    9612 RELEASES
    
    
    9713 NO ADVERSE OR DISCRIMINATORY LEGISLATIVE OR REGULATORY ACTION AND DISCUSSIONSWITH OTHER GOVERNMENTS
    
    
    10014 ACTUARIAL ISSUES
    
    
    10915 FINANCIAL COVENANTS
    
    
    11416 DEFAULT
    
    
    11717 INTERIM FUNDING
    
    
    12318 BORROWING BY THE TRUSTEE
    
    
    12419 EDUCATION PROGRAMME
    
    
    12420 MEDICAL RESEARCH
    
    
    12521 BANS AND BOYCOTTS
    
    
    127




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ii 22 OPINIONS
    
    
    12723 CONFIDENTIALITY
    
    
    12824 AGREED SUMMARY
    
    
    12925 COSTS AND STAMP DUTY
    
    
    12926 GOVERNING LAW AND JURISDICTION
    
    
    13027 COUNTERPARTS
    
    
    13028 ACCESS TO INFORMATION
    
    
    13029 AMENDMENT OF THIS DEED
    
    
    13130 NOTICES
    
    
    13231 GENERAL
    
    
    13332 CUMULATIVE RIGHTS
    
    
    13433 ATTORNEYS
    
    
    13434 ASSIGNMENT, NOVATION AND OTHER DEALINGS
    
    
    134SCHEDULE 1 - RELATED AGREEMENTS
    
    
    135SCHEDULE 2 - REPRESENTATIONS AND WARRANTIES
    
    
    136SCHEDULE 3 - PERCENTAGE OF FREE CASH FLOW
    
    
    138SCHEDULE 4  OPINION  ATANASKOVIC HARTNELL
    
    
    142SCHEDULE 5  OPINION  DE BRAUW BLACKSTONE WESTBROEK
    
    
    143SCHEDULE 6  OPINION  ATANASKOVIC HARTNELL
    
    
    144SCHEDULE 7  OPINION  DE BRAUW BLACKSTONE WESTBROEK
    
    
    145SCHEDULE 8  OPINION  GIBSON DUNN AND CRUTCHER LLP
    
    
    146SCHEDULE 9 - DEED OF NOVATION
    
    
    147SCHEDULE 10 - TRUSTEE CONSTITUTION
    
    
    151




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iii SIGNING
PAGE 152ANNEXURE 1 - DEED OF ACCESSION
    
    
    153ANNEXURE 2  SUMMARY OF FINAL FUNDING AGREEMENT AND RELATED AGREEMENTS
    
    
    156ANNEXURE 3  TRUST DEED
    
    
    157ANNEXURE 4 - FORM OF UNIONS DEED OF RELEASE
    
    
    158ANNEXURE 5  JHINV GUARANTEE
    
    
    159ANNEXURE 6  NSW GOVERNMENT DEED OF RELEASE
    
    
    160ANNEXURE 7A  INTERCREDITOR DEED  JHINV
    
    
    161ANNEXURE 7B  INTERCREDITOR DEED  PERFORMING SUBSIDIARY
    
    
    162ANNEXURE 8  KPMG WAIVER OF CONFLICT LETTER
    
    
    163ANNEXURE 9  IRREVOCABLE POWER OF ATTORNEY
    
    
    165




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THIS
DEED
 PARTIES
 1.
    
    James Hardie Industries N.V.ARBN 097 829 895, a limited liability
company incorporated in the Netherlands and having its registered
office at Atrium, 8th floor, Strawinskylaan 3077, 1077ZX
Amsterdam, The Netherlands, (with its Australian registered office at
Level 3, 22 Pitt Street, Sydney in the State of New South Wales)
(JHINV)2.
    
    LGTDD Pty LimitedABN 116 110 948, of Level 3, 22 Pitt Street, Sydney
in the State of New South Wales (the Performing Subsidiary)3.
    
    The State of New South Wales (NSW Government)
 RECITALS
 A.
    
    This deed is entered into by the Parties described above in the following context (some of
the expressions used in these recitals being defined in clause 1of this deed):
 (a)
    
    in February 2004, the NSW Government established the Jackson Inquiry;(b)
    
    in September 2004, the Jackson Inquiry found that the MRCF was, and is,
underfunded in the sense that Amaca and Amaba, being two former subsidiaries of JHIL
which are now owned by MRCF, will not over time have sufficient funds and other assets
to meet their anticipated future liabilities:
 (i)
    
    to sufferers of Asbestos disease as a result of exposure to
Asbestos dust and fibre in Australia whilst in their employ or from products
manufactured by Amaca or Amaba or otherwise from their Asbestos activities; and(ii)
    
    to the relatives or estates of such sufferers,
 and associated costs and expense;(c)
    
    in July 2004, JHINV had proposed to the Jackson Inquiry that, on certain
conditions, its directors would recommend that shareholders approve the provision of
additional funding to provide for the present and future liabilities of Amaca and Amaba
to such sufferers of Asbestos related disease;(d)
    
    the ABN 60 Foundation is the holding company of ABN 60, the former parent
company of the James Hardie group, which may be alleged to




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5 have Asbestos-related personal injury liabilities arising from its own activities
and from the activities of Amaca and Amaba, and has (or had) payment obligations to
Amaca and Amaba under a deed of covenant and indemnity between them dated 16
February 2001;(e)
    
    the Jackson Inquiry found, inter alia, that:
 (i)
    
    ABN 60 (then, as JHIL, the parent company of the James Hardie
group) did not have a legal obligation to provide funds to Amaca and Amaba to
add to the assets of those companies on or prior to implementing the
arrangements which resulted in those former subsidiaries becoming owned by the
MRCF;(ii)
    
    some of the suggested causes of action of Amaca, Amaba or the
MRCF arising out of the conduct of members of the James Hardie Group, their
officers, their actuaries and various firms of solicitors were speculative,
and that other causes of action were perhaps not [speculative], but that all
such causes of action were unlikely to result in any significant increase in
the funds of Amaca, Amaba or the Foundation;(iii)
    
    there was no doubt management and the Board [of what was then
JHIL] were entitled to seek to achieve, if they could, separation of [JHIL]
from Amaca and Amaba and thus from the shadow thought to be cast from those
companies emerging asbestos liabilities;
 (f)
    
    the Jackson Inquiry also found, however, that:
 (i)
    
    ABN 60 was very aware that if it were perceived as not having
made adequate provision for the future asbestos liabilities of Amaca and Amaba,
there would be a wave of adverse public opinion which might well result in
action being taken by the Australian or State governments to legislate to make
other companies in the James Hardie group liable, in addition to Amaca or
Amaba for such future asbestos liabilities;(ii)
    
    ABN 60s representations at the time of establishment of the
MRCF that the MRCF was fully-funded were misleading;(iii)
    
    it was not possible, in money terms, to say that separation
of Amaca and Amaba from ABN 60 or other members of the James Hardie Group
directly resulted in or contributed to a possible insufficiency of assets to
meet the future asbestos related liabilities of Amaca and Amaba, but that, in
practical terms, the separation was likely to have an effect of that kind;
and(iv)
    
    proposals to remove Amaca and Amaba from the Group leaving
them with nothing more than their net assets had no practical




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6 prospect of success unless it was apparent that the funds left to Amaca and
Amaba were sufficient to satisfy the asbestos liabilities, and that while
JHIL was perfectly entitled to seek a means whereby it could pursue its
aims without it being perceived, rightly or wrongly, as associated with
ongoing asbestos liabilities, to do so as a practical matter required that
it make provision for the separated Amaca and Amaba to have access to the
funds necessary to meet the ongoing asbestos liabilities, ie to provide the
right amount, not the legal minimum of such funding.
 (g)
    
    the Parties have recorded the findings of the Jackson Inquiry Report described
in recitals (e) and (f) above, without conceding that such findings are correct in fact
or law, or would necessarily be upheld if the relevant underlying facts were the
subject of a final binding judgement;(h)
    
    following the release of the Jackson Inquiry Report, the NSW Government
requested the ACTU, Unions NSW and Banton to conduct negotiations with JHINV in order
to resolve the underfunding of the MRCF, and subsequently the NSW Government also took
part in those negotiations;(i)
    
    in those negotiations, the principal objective of the Initial Negotiating
Parties, for different reasons, was to achieve a binding agreement intended to ensure
that, after taking into account the existing assets of the Liable Entities, sufficient
funding is made available by the JHINV Group to fully compensate, on an agreed basis,
all proven current and future Australian Asbestos personal injury and death Claimants
against the Liable Entities;(j)
    
    on 21 December 2004, the Initial Negotiating Parties entered into a non-binding
Heads of Agreement which set out the agreed position of the Initial Negotiating Parties
in relation to the principles on which the binding agreement would be based and the key
standing considerations relevant to implementing those principles to be reflected in
that binding agreement;(k)
    
    in the Heads of Agreement, the Initial Negotiating Parties acknowledged that
the funding arrangement must be affordable and bankable for the JHINV Group; that it is
in the mutual interests of the Parties and Claimants that the JHINV Group remains
profitable and financially viable and is able to continue to grow its business in a
competitive environment, retain the support of the equity and debt markets and is able
to meet all of its current and future financial commitments; and that the JHINV Groups
capital structure is sufficiently robust to support growth and withstand a recessionary
environment. In this regard, it was recognised by the Initial Negotiating Parties, and
is recognised by the Parties, that the JHINV Groups commercial viability and success
will




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7 provide the basis for the long term funding of the claims which are to be subject to
those funding arrangements;(l)
    
    the JHINV Group has asserted that it has suffered damage to business operations
and sales from boycotts and other actions in relation to the distribution and sale of
its products in Australia and in other places throughout the world and is or was
subject to a number of threats relating to future action (including those described in
Recital (m)) and sought to establish that its business operations and sales would no
longer be affected by those boycotts and other actions or the threat of them;(m)
    
    JHINV asserts that a principal purpose of the JHINV Group in entering into this
deed is to avert threats from the NSW Government, the federal government and other
state and territorial governments (and perhaps governments of other countries in which
the JHINV Group is, or the ABN 60 group was, active), that it or they would act, or
support the NSW Government acting, to legislatively impose liability upon one or more
members of the JHINV Group in relation to Asbestos-related personal injury liabilities
of the Liable Entities in excess of the available assets of the Liable Entities unless
James Hardie reached a voluntary settlement in relation to such liabilities, which
threats were evidenced inter aliaby:
 (i)
    
    the announcement on 28 October, 2004 by the then Premier of New
South Wales, the Hon. Robert John Carr, that the NSW Government would seek the
agreement of the Ministerial Council, comprised of Ministers of the
Commonwealth and the Australian States and Territories, to allow the NSW
Government to pass legislation to wind back James Hardies corporate
restructure and rescind the cancellation of the A$1.9 billion in partly paid
shares, which partly paid shares JHINV had previously held in ABN 60;(ii)
    
    the announcement on 5 November, 2004 by the Federal Attorney
General and the Parliamentary Secretary to the Federal Treasurer that the
Ministerial Council for Corporations (MINCO) had unanimously agreed to
support a negotiated settlement that will ensure that victims of
asbestos-related diseases receive full and timely compensation from James
Hardie and that if the current negotiations between James Hardie, the ACTU
and asbestos victims do not reach an acceptable conclusion, MINCO also agreed
in principle to consider options for legislative reform; and(iii)
    
    the announcement on 21 November 2005 by the Premier of New
South Wales, the Hon. Morris Iemma, that the NSW Government would, in the week
following the week of that announcement,




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8 introduce legislation to the Parliament of New South Wales to secure
compensation for the victims of James Hardies asbestos products if JHINV
did not settle the terms of a binding funding agreement with the NSW
Government forthwith,
 and JHINV understands that, while the precise terms, enforceability and full
consequences of such proposed legislation if enacted have not been made public nor
disclosed to JHINV or any other member of the JHINV Group, such legislation if
enacted may be likely to have a material adverse effect on the profitability,
financial position or reputation of JHINV and/or other members of the JHINV Group;(n)
    
    the JHINV Group seeks, on a continuing basis, meaningful cost savings in the
legal and administrative arrangements existing throughout Australia for making,
handling and finalising claims by Asbestos disease sufferers against Amaca and Amaba,
including the processes associated with third party recovery and the apportionment of
damages;(o)
    
    on 18 November 2004, the NSW Government established the Review of Legal and
Administrative Costs in Dust Diseases Compensation Claims to consider the issue of
improving the efficiency with which Dust Diseases Compensation Claims are resolved.
The Costs Review Inquiry Report was released on 8 March 2005 and recommended a number
of key steps in the reform of the compensation system applicable for asbestos
compensation claims in New South Wales. Following the release of that Report, the Cost
Review Inquiry Legislation commenced on 1 July 2005. The JHINV Group considers these
steps to be a material advance in achieving for the State of New South Wales what the
JHINV Group seeks to achieve as referred to in recital (n), although the legislation
introduced to date does not constitute complete satisfaction of those objectives,
either outside or on a continuing basis within New South Wales. The NSW Government
also adopted the recommendation of the Costs Review Inquiry Report to undertake a
review of the reforms after data in relation to the reforms first 12 months of
operation are available. It is important to the JHINV Group that this form of review
occur (and periodically reoccur) so as to ensure that meaningful cost savings as
described in the previous recital continue to be derived with respect to the making,
handling and finalising of claims by Claimants against Amaca and Amaba;(p)
    
    on 15 April 2005, JHINV announced that, subject to the qualifications and
conditions set out in the relevant announcement, it would extend the coverage of the
Fund to permit members of the Baryulgil community (former asbestos mine workers and
residents) to receive compensation funding from the Fund for Proven Claims against the
former ABN 60 subsidiary, Marlew Mining Pty Ltd (formerly Asbestos Mines Pty Ltd).
JHINV has agreed to implement that announcement on and subject to the terms of this
deed; and




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9 (q)
    
    the Fund is to be established under the laws of New South Wales as required
under clause 4.1of the Heads of Agreement and it is a Condition that the Trustee
becomes a Party to this deed prior to the Commencement Date.
 B.
    
    The Parties enter into this deed:
 (a)
    
    to reflect their formal and legally binding agreement to implement the
principles set out in the Heads of Agreement and the Modified Objectives, and(b)
    
    in particular, to record the financial obligations of JHINV and the Performing
Subsidiary set out in clauses 6and 9below.
 TERMS OF AGREEMENT
 1. DEFINITIONS AND INTERPRETATION
 1.1 Definitions
  ABN 60
 ABN 60 Foundation
 Accepted Tax Condition clause 2.2(b) clause 6.4(a)(ii)
 Additional Payment clause 9.2(a)(v)
 Amaba
 Amaca
 Annual Actuarial Report clause 14
 Annual Contribution Amount clause 9.4
 Annual Payment clause 9.3
 Appointor clauses 5.1 5.3 clause 16.3




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10 Approved Actuary
 (a)
    
    has been appointed in accordance with clause 5.15and which nominates a principal who is an
approved actuary under the Insurance Act1973 or who has qualifications under equivalent
legislation of another relevant jurisdiction;(b)
    
    has relevant and substantive experience and expertise in Asbestos-related liability
provisioning appropriate to undertake the determination referred to in clause 14.4;(c)
    
    has no interest or duty which conflicts or may conflict with its functions as contemplated
under this deed as the Approved Actuary; and(d)
    
    is not affiliated with the accounting firm performing the role of Approved Auditor during the
term of the Approved Actuarys appointment,
 clause 5.15(f)
 Approved Auditor clause 5.12
 Asbestos
 Asbestos Liabilities
 Asbestos Mining Activities
 Asbestos Support Groups
 ASIC .
 Audited Financial Statements




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11 GAAP
 (a)
    
    where that Person is Listed at the time the relevant audit report is signed, the generally
accepted accounting principles used in that Persons published financial reports; or(b)
    
    where that Person is not Listed at that time and paragraph (c) does not apply, US GAAP or
such other GAAP as is commonly applied by multinational companies at that time in respect of
their financial statements; or(c)
    
    where that Person is not Listed at that time and it and its subsidiaries operate wholly or
predominantly in one jurisdiction, the generally accepted accounting principles of that
jurisdiction.
 Australia Acts Interpretation Act
 Banton
 Board Papers
 (a)
    
    in relation to a Director, all Documents circulated by the Trustee to him or her acting in
that capacity.(b)
    
    all Documents tabled at a meeting of the Directors or otherwise made or physically available
to Directors at such meetings, including, without limitation, periodic board papers,
submissions, minutes, letters, board committee and sub-committee papers.
 Business Day
 Change of Tax Law
 (a)
    
    a withdrawal of or change to a ruling by an Australian Taxation authority, or the expiry of
the operation of such ruling without renewal or satisfactory substitution, if such ruling
constituted the basis on which the condition referred to in clause 2.2(b) was fulfilled; or(b)
    
    any announcement by a responsible Minister of the Commonwealth or of a state or territory, or
the introduction of a bill into the parliament of the Commonwealth, to effect such a change of
law.
 CHESS Depository Interest




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12 Claimant
 Claims Legal Costs
 Commencement Date clause 2.7
 Concurrent Wrongdoer clause 13 clause 16.5
 Condition clause 2.1
 Contribution Claim clause 13 clause 16.5
 (a)
    
    for contribution by a Concurrent Wrongdoer against a Liable Entity or a member of the JHINV
Group in relation to facts or circumstances which give rise to a right of a Person to make a
Personal Asbestos Claim or a Marlew Claim; or(b)
    
    by another Person who is entitled under common law (including by way of contract) to be
subrogated to such a first mentioned cross-claim or other claim,
 clause 13.7
 Controlled Entity
 Corporations Act Corporations Act
 Costs Review Inquiry




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13 Costs Review Inquiry Legislation Dust Diseases Tribunal Amendment (Claims Resolution) Act
 Costs Review Inquiry Report
 Court
 Cross Guarantee clause 2.2
 Deed of Accession Annexure 1
 Deeds of Covenant and Indemnity
 (a)
    
    the deed of that name dated 16 February 2001 between JHIL, Amaba and Amaca and any amendments
thereto (including without limitation pursuant to the amending deed dated 10 September 2001);
and(b)
    
    the Deed of Covenant Indemnity and Access between JHINV and ABN 60 dated 31 March 2003 and
any amendments thereto.
 Director clause 5 16.3
 Discounted Central Estimate clause 14.4
 Document
 (a)
    
    anything on which there is writing;(b)
    
    anything on which there are marks, figures, symbols or perforations having a meaning for
persons qualified to interpret them;(c)
    
    anything from which sounds, images or writing can be reproduced with or without the aid of
anything else; and(d)
    
    a map, plan, drawing or photograph.
 Dust Diseases Tribunal




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14 Duty
 Equity Distribution clause 7.1.
 Equity Securityholder clause 7.1
 Excluded Claims clause 8.2(b)
 Excluded Marlew Claim
 (a)
    
    covered by the indemnities granted by the Minister of Mineral Resources under the deed
between the Minister, Fuller Earthmoving Pty Limited and James Hardie Industries Limited dated
11 March 1996; or(b)
    
    by a current or former employee of Marlew in relation to an exposure to Asbestos in the
course of such employment to the extent:
 (i)
    
    the loss is recoverable under a Workers Compensation Scheme or Policy; or(ii)
    
    the Claimant is not unable to recover damages from a Marlew Joint Tortfeasor in
accordance with the Marlew Legislation;
 (c)
    
    by an individual who was or is an employee of a person other than Marlew arising from
exposure to Asbestos in the course of such employment by that other person where such loss is
recoverable from that person or under a Workers Compensation Scheme or Policy; or(d)
    
    in which another defendant (or its insurer) is a Marlew Joint Tortfeasor from whom the
plaintiff is entitled to recover compensation in proceedings in the Dust Diseases Tribunal,
and the Claimant is not unable to recover damages from that Marlew Joint Tortfeasor in
accordance with the Marlew Legislation.
 Final Payment clause 9.9
 Financial Covenants clause 15
 Financial Year
 Financial Year End




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15 First Release Bill James Hardie (Civil Liability) Bill
 Free Cash Flow clauses 9.5 9.14(c)
 (a)
    
    for the avoidance of doubt, after deducting:
 (i)
    
    interest paid, increases in net operating assets and liabilities, and Taxes
paid;(ii)
    
    any Asbestos-related payments paid by any member of the JHINV Group in that
Financial Year, whether by way of any Funding Payments paid to the Trustee, or any
other payments in connection with Asbestos paid by any member of the JHINV Group to any
other Person in that Financial Year; and
 (b)
    
    after deducting the income statement charge in relation to minority interests share of
profits,(c)
    
    for the avoidance of doubt, after adding:
 (i)
    
    interest received, decreases in net operating assets and liabilities, and
receipts of Taxes;(ii)
    
    any Asbestos-related payments received by any member of the JHINV Group in that
Financial Year, whether by way of any Funding Payments refunded to the Performing
Subsidiary by the Trustee, or any other amounts in connection with Asbestos received by
any member of the JHINV Group from any other Person in that Financial Year; and
 (d)
    
    after adding the income statement credit in relation to minority interests share of losses,
 clause 5.16
 Free Cash Flow Amount clause 9.5
 Fund
 Fund Account clause 9.2
 Funding Obligation




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16 Funding Payments
 (a)
    
    the Initial Funding payable under clause 9.2(which, for the avoidance of doubt, includes the
Additional Payment);(b)
    
    the Annual Payments payable under clause 9.3; and(c)
    
    any Final Payment payable under clause 9.9.
 Funding Payment
 Further Actuarial Report clause 14.2(b)
 Government Authority
 Heads of Agreement
 Independent Expert clause 2.1(b)
 Indirect Tax
 Initial Funding clause 9.2
 Initial Lenders clauses 2.1(d) and (m)
 Initial Negotiating Parties
 Initial Report
 Insolvency Event
 Insolvent




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17 (a)
    
    admits in writing its inability to pay its debts generally as they become due (otherwise than
as contemplated in clause 16.6);(b)
    
    was established under Dutch law and files a petition with any court in the Netherlands in
relation to its bankruptcy (faillissement) or seeking an order for a suspension of payments
(surseance van betaling);(c)
    
    files, or consents by answer or otherwise to the filing against it of, a petition for relief
or insolvent reorganisation or insolvent arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any bankruptcy, insolvency, insolvent reorganisation,
insolvent moratorium or other similar law of any jurisdiction (including, without limitation,
a filing by the Person under Chapter 7 or Chapter 11 of the US Bankruptcy Code), provided that
where the filing is a filing under Chapter 11 of that Code, the Person:
 (i)
    
    is at the time of filing unable to pay its debts generally as and when they
become due; or(ii)
    
    in the case of JHINV, after it makes such a filing, fails to pay a JHINV
Contribution or other amount under the JHINV Guarantee when such payment would (but for
the moratorium granted as a result of that filing) have been due for 30 days after that
due date,
 and also provided that, in any such filing under Chapter 11 of that Code a Person is
Insolventno later than the earliest date as of which creditors may vote on any matter or
accept or reject a plan of reorganisation;(d)
    
    makes an assignment for the benefit of its creditors generally;(e)
    
    consents to the appointment of a custodian (not being a nominee for the person), receiver,
receiver and manager, trustee or other officer with similar powers with respect to it or with
respect to a substantial part of its property;(f)
    
    consents to the appointment of an insolvency administrator or such an insolvency
administrator is appointed and that appointment is not terminated within 28 days;(g)
    
    is adjudicated as insolvent or to be liquidated, in each case, by a court of competent
jurisdiction; or(h)
    
    is subject to a Wind-Up Event.
 Insolvency
 Insurance and Other Recoveries




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18  Insurer Workers
Compensation Act 1987
 Intercreditor Deeds Annexures 7A 7B
 Interest Rate
 (a)
    
    the rate determined as the arithmetic mean (rounded up, if necessary, to the nearest 0.01%)
of the bid rates displayed at or about 10.30am (Sydney time) on the first day of that period
on the Reuters screen BBSW page for a term equivalent to the period after eliminating one of
the highest and one of the lowest of those rates; or(b)
    
    if:
 (i)
    
    for any reason there are no rates displayed for a term equivalent to that
period; or(ii)
    
    the basis on which those rates are displayed is changed,
  Irrevocable Power of Attorney Annexure 9
 Jackson Inquiry
 JHIL
 JHINV Articles
 JHINV Auditor
 JHINV Boards




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19 JHINV Contributions clause 9
 JHINV Group
 JHINV Group Taxpayer
 JHINV Guarantee Annexure 5
 Joint Board
 KPMG Actuaries
 Lenders
 (a)
    
    the Initial Lenders; and(b)
    
    all other Persons to whom liabilities are owed where such liabilities are or are required to
be included in the JHINV Groups financial statements or notes thereto as debt or borrowings,
but excluding any person who is an Excluded Lender defined in the Intercreditor Deeds.
 Liable Entities
 Liquidation
 Listed
 Managing Board
 Marlew




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20 Marlew Claim clause 13.7
 (a)
    
    any present or future personal injury or death claim by an individual or the legal personal
representative of an individual, for damages under common law or other law (disregarding any
law which comes into force in breach of clause 13and which breach has been Notified to the
NSW Government under clause 16.5) which:
 (i)
    
    arose or arises from exposure to Asbestos in the Baryulgil region from Asbestos
Mining Activities at Baryulgil conducted by Marlew, provided that:
 (A)
    
    the individuals exposure to Asbestos occurred wholly within
Australia; or(B)
    
    where the individual has been exposed to Asbestos both within
and outside Australia, the amount of damages included in the Marlew Claim shall
be limited to the amount attributable to the proportion of the exposure which
caused or contributed to the loss or damage giving rise to the Marlew Claim
which occurred in Australia;
 (ii)
    
    is commenced in New South Wales in the Dust Diseases Tribunal; and(iii)
    
    is or could have been made against Marlew had Marlew not been in external
administration or wound up, or could be made against Marlew on the assumption (other
than as contemplated under the Marlew legislation) that Marlew will not be in the
future in external administration;
 (b)
    
    any claim made under compensation to relatives legislation by a relative of a deceased
individual (or personal representative of such a relative) or (where permitted by law) the
legal personal representative of a deceased individual in each case where the individual, but
for such individuals death, would have been entitled to bring a claim of the kind described
in paragraph (a); or(c)
    
    a Contribution Claim relating to a claim described in paragraphs (a) or (b).
 Marlew Joint Tortfeasor
 Marlew legislation




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##### 



21 Modified Objectives
 MRCF
 Notice clause 30(a)
 NSW Government Auditor clause 5.13
 NSW Government Deed of Release Annexure 6
 NSW Government Reviewing Actuary clause 14.5
 (a)
    
    nominates a principal who is an approved actuary under the Insurance Act1973 (Cth) or has
equivalent qualifications under equivalent legislation of another relevant jurisdiction;(b)
    
    is not and has not for a period of at least five (5) years been a service provider to the
Trustee or any member of the JHINV Group;(c)
    
    is not affiliated with the accounting firm performing the Approved Auditor role; and(d)
    
    is not affiliated with the firm performing the role of the Approved Actuary,
 clause 14.5(b) clause 14.5(b)
 NYSE
 Objectives
 Operating Expenses clause 4.2
 Other Governments
 P clause 7.2(m)
 Payable Liability
 (a)
    
    any Proven Claim (whether arising before or after the date of this deed);




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##### 



22 (b)
    
    Operating Expenses;(c)
    
    Claims Legal Costs;(d)
    
    any liability of a Liable Entity to the Trustee, however arising, in respect of any amounts
paid by the Trustee in respect of any liability or otherwise on behalf of the Liable Entity;(e)
    
    any pre-commencement claim (as defined in the Transaction Legislation) against a Liable
Entity;(f)
    
    if regulations are made pursuant to section 30 of the Transaction Legislation and if and to
the extent the Trustee and JHINV have Notified the NSW Government that any such liability is
to be included in the scope of Payable Liability, any liability of a Liable Entity to pay
amounts received by it from an insurer in respect of a liability to a third party incurred by
it for which it is or was insured under a contract of insurance entered into before the date
on which the Transaction Legislation receives the Royal Assent; and(g)
    
    Recoveries within the meaning and subject to the limits set out in clause 13.7,
  Parties clause 1.4
 Payment Date
 Performing Subsidiary clause 6.2 clauses 6 9 clause 6.2
 Period Actuarial Estimate clause 9.2 14.4(b)(ii)
 Person




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##### 



23  Personal Asbestos Claim clause 13.7
 (a)
    
    any present or future personal injury or death claim by an individual or the legal personal
representative of an individual, for damages under common law or under other law (disregarding
any law which comes into force in breach of clause 13and which breach has been Notified to
the NSW Government under clause 16.5) which:
 (i)
    
    arises from exposure to Asbestos occurring in Australia, provided that:
 (A)
    
    the individuals exposure to Asbestos occurred wholly within
Australia; or(B)
    
    where the individual has been exposed to Asbestos both within
and outside Australia, damages included in the Personal Asbestos Claim shall be
limited to the amount attributable to the proportion of the exposure which
caused or contributed to the loss or damage giving rise to the Personal
Asbestos Claim which occurred in Australia;
 (ii)

    is made in proceedings in an Australian court or tribunal; and
 is made against all or any of the Liable Entities or any member of the JHINV Group from time
to time;(b)
    
    any claim made under compensation to relatives legislation by a relative of a deceased
individual (or personal representative of such a relative) or (where permitted by law) the
legal personal representative of a deceased individual in each case where the individual, but
for such individuals death, would have been entitled to bring a claim of the kind described
in paragraph (a); or(c)
    
    a Contribution Claim made in relation to a claim described in paragraph (a) or (b),
  Proven Claim




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##### 



24 Qualifying Capital Ratio clause 7.8
 Quoted
 Reconstruction Event
 (a)
    
    the summoning of a meeting of creditors or the obtaining of an order of a court to do so for
the purpose of considering any scheme or plan of arrangement for reconstruction or compromise
with creditors;(b)
    
    a voluntary case is commenced, or a final order for relief is entered, under Chapter 11 of
the US Bankruptcy Code;(c)
    
    a filing by JHINV for a suspension of payments under Dutch law, provided that the Court
grants the (provisional) suspension of payments to JHINV;(d)
    
    any comparable action under the laws of any other jurisdiction occurs having substantially
the same effect as the orders described in paragraphs (b) and (c),
  Related Agreements Schedule 1
 Release Bills
 Release Legislation clause 2.1(g)
 Released Person clause 12.1(a)(i)
 Releases clause 12
 Relevant Matters
 (a)
    
    the establishment and underfunding or funding of the MRCF, and the February 2001 ABN 60 group
corporate reorganisation (including, without limitation, the transfer of the Liable Entities
out of the JHIL Group, representations made to incoming directors of the Liable Entities and
other third parties regarding the Liable Entities and their assets and liabilities, the media
releases of ABN 60 of 16 February 2001 and of JHINV of 29 and 30 October 2003 and any
statements made in relation to any of the foregoing matters);




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25 (b)
    
    the Deeds of Covenant and Indemnity;(c)
    
    the transfers of assets, and the dividends and management fees paid, by the Liable Entities,
as described in the report of the Jackson Commission;(d)
    
    the August to October 2001 ABN 60 group corporate reorganisation, including without
limitation the scheme of arrangement in relation to ABN 60 of August to October 2001, the
contemporaneous reduction of capital of (and cancellation of fully paid ordinary shares in)
ABN 60 and subscription by JHINV for partly paid shares in ABN 60, the subsequent cancellation
of those partly paid shares in ABN 60 in March 2003 and representations to third parties and
the court and any statements made in relation to any of the foregoing matters; and(e)
    
    the transfer of assets from ABN 60 to JHINV, the establishment of the ABN 60 Foundation
Limited and ABN 60 Foundation Trust, and the allotment of fully paid shares in ABN 60 to ABN
60 Foundation Limited.
 Resolution clause 2.1(d)
 Second Release Bill James Hardie (Civil Penalty Compensation Release) Bill 2005 (NSW)
 Security Interest
 Shareholder
 Shareholder Documentation
 Shares
 (a)
    
    ordinary shares in JHINV; and(b)
    
    for so long as they are Quoted, the Quoted CHESS Depository Interests over the ordinary
shares in JHINV, to the exclusion of the relevant underlying ordinary shares in JHINV.
 Special Default clause 16.2
 SPF Funded Liability




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##### 



26 (a)
    
    only those liabilities described in paragraphs (a), (b), (c), (e) and (g) of the definition
of Payable Liability and excludes the liabilities described in paragraph (d) or (f) of the
definition of Payable Liability; and(b)
    
    a claim or category of claim which JHINV and the NSW Government agree in writing is a SPF
Funded Liability or a category of SPF Funded Liability.
 Stock Exchange
 Supervisory Board
 Tax Taxation
 Tax Requirements clause 2.1(a)(i) (ii)
 Term clause 9.9
 Term Central Estimate clause 14.4(b)(iii) clause 14.4(b)(iii) clause 14.4
 Transaction Bill James Hardie Former Subsidiaries (Winding up and Administration) Bill
 Transaction Documentation
 Transaction Legislation clause 2.1(f)
 Trust Deed Annexure 3
 Trustee




---



##### 



27 Trustee Board clause
5.1
 Trustee Constitution Schedule
10.
 Unions Deed of Release Annexure 4
 Unions NSW
 US Bankruptcy Code
 US GAAP
 VA clause 7.2(m)
 VL clause 7.2(m)
 Valuation Ratio clause 7.2(m)
 Wind-Up or Reconstruction Amount clause 10.4
 Wind-Up Event
 (a)
    
    a final court order is entered that it be wound up or declared bankrupt;(b)
    
    a liquidator (excluding a provisional liquidator) is appointed to it and the appointment is
not subsequently terminated;(c)
    
    a court declaration of bankruptcy is made in relation to it and is not subsequently
withdrawn, struck out, dismissed, vacated or reversed;(d)
    
    the dissolution of such Person under Dutch law (ontbinding) or the law of any other
jurisdiction;(e)
    
    the declaration of its bankruptcy under Dutch law (faillissement);(f)
    
    the Liquidation of that Person;(g)
    
    a final order for relief occurs or is deemed to occur in relation to it under Chapter 7 or
Chapter 11 of the US Bankruptcy Code which, when implemented, will result in the Liquidation
of that Person; and




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##### 



28 (h)
    
    any comparable action occurs under the law of any competent jurisdiction which has a
substantially the same effect to paragraphs (a) to (g) of this definition,
  Workers Compensation Scheme or Policy
 (a)
    
    any workers compensation scheme established by any law of the Commonwealth of Australia or
of any State or Territory of Australia;(b)
    
    any fund established to cover liabilities under insurance policies upon the actual or
prospective insolvency of the insurer (including without limitation the Insurer Guarantee Fund
established under the Workers Compensation Act1987 (NSW)); and(c)
    
    any policy of insurance issued under or pursuant to such a scheme.
 1.2 Interpretation
  (a)
    
    The singular includes the plural, and the converse also applies.(b)
    
    A gender includes all genders.(c)
    
    If a word or phrase is defined, its other grammatical forms if capitalised have a
corresponding meaning.(d)
    
    A reference to a clause, Schedule or Annexure is a reference to a clause of, or schedule or
annexure to, this deed.(e)
    
    A reference to an agreement or document (including a reference to this deed) is to the
agreement or document as amended, supplemented, novated or replaced, except to the extent
prohibited by this deed or that other agreement or document, and includes the recitals and
schedules and annexures to that agreement or document.(f)
    
    A reference to writing includes any method of representing or reproducing words, figures,
drawings or symbols in a visible and tangible form.(g)
    
    A reference to a party to this deed or another agreement or document includes the partys
successors, permitted substitutes and permitted assigns (and, where applicable, the partys
legal personal representatives).




---



##### 



29 (h)
    
    A reference to legislation or to a provision of legislation includes a modification or
re-enactment of it, a legislative provision substituted for it and a regulation or statutory
instrument issued under it.(i)
    
    A reference to conduct includes an omission, statement or undertaking, whether or not in
writing.(j)
    
    A reference to an agreement includes any undertaking, deed, agreement and legally enforceable
arrangement, whether or not in writing, and a reference to a document includes an agreement
(as so defined) in writing and any certificate, notice, instrument and document of any kind.(k)
    
    A reference to dollars and $ is to Australian currency.(l)
    
    A reference to a particular Government Authority or Stock Exchange includes a reference to
any other Government Authority or Stock Exchange which succeeds the former or which performs
substantially the same functions and duties as the former.(m)
    
    A reference to a persons consent is to that persons consent given in writing.(n)
    
    For the avoidance of doubt, clause 6.1does not and is not intended to give rise to any
greater obligation on the part of the JHINV Group than is contemplated by clause 9or its
implementation in this deed.(o)
    
    A reference to the Trustee is a reference to the Trustee having the assets, benefits and
liabilities under this deed, the Trust Deed, the other Related Agreements and any Cross
Guarantee or other agreement or instrument binding upon it.
 1.3 Agreement Legally Binding
 (a)
    
    This deed is and is intended to be legally binding on all Parties hereto and to be
enforceable at law and equity.(b)
    
    This deed binds the Crown in right of New South Wales and to the maximum extent permitted by
law the State Crown hereby waives all Crown immunity with respect to this deed and the Related
Agreements.
 1.4 Accession by the Trustee
 (a)
    
    On establishment of the Fund in accordance with clause 3.1and appointment of directors to
the Trustee Board, the Parties must:
 (i)
    
    use their respective best endeavours to procure the Trustee to agree to become
a party to this deed; and




---



##### 



30 (ii)
    
    promptly following the Trustee agreeing to do so, execute and deliver to the
other Parties, and use their respective best endeavours to procure the Trustee to
execute and deliver to the parties, a Deed of Accession.
 (b)
    
    Where the Trustee and the Parties deliver a Deed of Accession in accordance with clause
1.4(a) or a novation deed in accordance with clause 1.4(c), the Trustee shall be, and shall be
taken to be, a Party to this deed effective from the time of delivery of such deed and shall
have the benefit of each right expressed to be that of the Trustee and be entitled to enforce
each such right against the other Parties.(c)
    
    Upon the appointment of a new Trustee in accordance with the Trust Deed, the Parties shall
execute a novation deed which has been executed by the new Trustee, under which, among other
things, all liabilities incurred by or on behalf of the outgoing Trustee under this deed are
assumed by the new Trustee.
 1.5 Business Days
  2 CONDITIONS PRECEDENT
 2.1 Conditions precedent
 clause 2 clauses 1, 3, 17, 21 27, 29 34
 (a)
    
    the JHINV Boards and the board of directors of the Performing Subsidiary are satisfied,
acting reasonably that with effect on or before payment of the Initial Funding (and by force
of retrospective legislation where necessary), that:
 (i)
    
    payment of the JHINV Contributions (including, for the avoidance of doubt, the
Initial Funding) will be fully deductible expenses of the JHINV Group Taxpayer in the
years in which they are incurred for the purpose of determining the taxable income of
the JHINV Group Taxpayer for the purposes of the Tax laws of Australia; and(ii)
    
    the Trustee will be exempt from Tax in respect of its income (including without
limitation its receipts of JHINV Contributions);
 (b)
    
    the JHINV Boards and the board of directors of the Performing Subsidiary receive an
independent experts report from the Independent Expert that subject to satisfaction of the
Conditions under clause 2.1(a) if those Conditions have not been satisfied by the date of
finalisation of the report, the implementation of this deed and the JHINV Guarantee by JHINV
and the




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##### 



31 Performing Subsidiary is in the best interests of JHINV and its enterprise as a whole;(c)
    
    the JHINV Boards resolve, being satisfied in their discretion they should do so having regard
to their duties as directors, to recommend that the Shareholders vote in favour of approval of
this deed and its implementation by the JHINV Group (which resolution may, at JHINVs
discretion, be sought so as to be conditional upon satisfaction of the Conditions under clause
2.1(a) if those Conditions have not been satisfied by the date of such resolution, such
resolution not to be otherwise conditional upon anything not required to be done under this
deed on or before the Commencement Date);(d)
    
    the Shareholders in a general meeting duly convened under the JHINV Articles approve this
deed and the JHINV Guarantee and their implementation by the JHINV Group (which approval may,
at the discretion of JHINV, be sought so as to be conditional upon satisfaction of the
Conditions under clause 2.1(a) if those Conditions have not been satisfied by the date at
which the Shareholders vote on that resolution, such resolution not to be otherwise
conditional upon anything not required to be done under this deed on or before the
Commencement Date);(e)
    
    the Initial Lenders approve the JHINV Group implementing this deed on terms acceptable to
JHINV acting reasonably (such approvals to be evidenced in the usual form of such approvals
provided by such Initial Lenders);(f)
    
    the Transaction Bill is enacted by the NSW Parliament and comes into force:
 (i)
    
    in the form initialled by authorised representatives of JHINV and the NSW
Government on or prior to the date of this deed for the purposes of identification; or(ii)
    
    otherwise on terms stated in writing by JHINV to be acceptable to it,
 (such legislation, the Transaction Legislation);(g)
    
    the Release Bills are enacted by the NSW Parliament and come into force:
 (i)
    
    in the form initialled by authorised representatives of JHINV and the NSW
Government on or prior to the date of this deed for the purpose of identification; or(ii)
    
    otherwise on terms stated in writing by JHINV to be acceptable to it,
 (such legislation, the Release Legislation);(h)
    
    execution of each of the Related Agreements by each of the parties thereto;




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##### 



32 (i)
    
    the following are satisfied (or waived by agreement in writing by the Parties) on the date at
which all Conditions set out in this clause 2.1(other than this clause 2.1(i) and clause
2.1(m)) have been satisfied:
 (A)
    
    JHINV confirms in writing to the NSW Government (without qualification) that
the terms of clause 7of this deed would not have been breached; and(B)
    
    the NSW Government confirms in writing to JHINV (without qualification) that no
adverse or discriminatory legislative action within the meaning of clause 13.2 or 13.3
has been taken nor has clause 13.4had any application;
 clause
2.1 clause 2.1(m)
 (C)
    
    to the extent shares in the Liable Entities have not been transferred to the
Trustee on or prior to the Commencement Date, the Minister empowered to do so under
section 16(1) of the Transaction Legislation (when in force) serves an order under that
section upon each of the shareholders of each of the Liable Entities and the directors
of each of the Liable Entities to transfer all of the shares held by such shareholders
in the Liable Entities to the SPF Trustee, on a day on or prior to the Commencement
Date, and such transfers occur so as to vest legal and beneficial title in the Liable
Entities in the SPF Trustee; and(D)
    
    the NSW Government has not breached clauses 2.3(b) and (c)between the date of
signing this deed and the date at which all other Conditions set out in this clause 2.1
(other than clause 2.1(m)) have been satisfied or waived by the Parties;
 (j)
    
    the receipt by JHINV and the NSW Government of each of the opinions required under clause 22;(k)
    
    the Trustee appoints the Approved Actuary on terms consistent with this deed and JHINV
irrevocably waives in writing (in the form of Annexure 8), any right to object to KPMG
Actuaries being appointed as and performing the role of the initial Approved Actuary of the
Trustee, notwithstanding that KPMG Actuaries has provided or may provide before the
Commencement Date any services to any member of the JHINV Group;(l)
    
    the execution and delivery of the Deed of Accession by the Parties thereto, including the
Trustee; and(m)
    
    the Performing Subsidiary deposits the Initial Funding into the Fund Account,




---



##### 



33 
 clauses 7 and 13.2, 13.3 13.4
 2.2 Satisfaction of Conditions Precedent
 (a)
    
    (i)
    
    The Conditions (other than the Conditions
under clauses 2.1(d), (e), (i), (j)and (m))
must be satisfied by 30 June 2006 or such
later date as JHINV and the NSW Government may
agree in writing.(ii)
    
The Conditions described in clauses 2.1(d), (e), (i)and (j)and (m)must be
satisfied within 12 weeks of the satisfaction of the other Conditions (save that the
Condition described in clause 2.1(m) must only be satisfied once the other Conditions
have been satisfied).
 (b)
    
    JHINV acknowledges that the Conditions set out in clauses 2.1(a)(i) and (ii)will be
satisfied if the JHINV Boards are reasonably satisfied that in relation to each Condition
listed in those paragraphs, one or more of the following is satisfied:
 (i)
    
    binding legislation is in force having the consequences set out in the
paragraphs;(ii)
    
    JHINV receives a binding private ruling, applying for a period acceptable to
JHINV, confirming the matters set out in those paragraphs; or(iii)
    
    the Treasurer announces that the Federal Government will introduce
legislation, to take effect (retrospectively if necessary) on or before payment of the
Initial Funding, having the consequences described in those paragraphs,
 and if the legislation, ruling or announcement as the case may be imposes any conditions or
qualifications to those consequences arising, those conditions are acceptable to JHINV
acting reasonably.(c)
    
    If the Performing Subsidiary pays the Initial Funding on the basis of an announcement as
contemplated under clause 2.2(b)(iii), any further obligations of JHINV or the Performing
Subsidiary to make any payments whatsoever under this deed or any Related Agreement or to
perform any obligation under the JHINV Guarantee shall be conditional upon binding legislation
coming into force or a binding private ruling having been issued and being in force and
meeting the requirements described in clauses 2.1(a)(i) and (ii)respectively and such
obligations thereafter shall be subject to clause 6.4.(d)
    
    If clause 2.2(c) has any operation and subsequently legislation or a binding private ruling
meeting the requirements described in clause 2.2(b):
 (i)
    
    comes into force within 12 months of the date on which the Initial Funding is
paid or such later date agreed by JHINV and the NSW




---



##### 



34 Government in writing, then the Performing Subsidiary shall, within 10 Business Days
of this clause 2.2(d) applying:
 (A)
    
    pay to the Trustee each JHINV Contribution which would, in the
absence of clause 2.2(c), have been due and payable by the Performing
Subsidiary under clause 9; and(B)
    
    pay Interest to the Trustee on each payment due under paragraph
(A), at the Interest Rate from the date each such payment would have been due
if clause 2.2(c) had not applied until the date such payment is made;
 (ii)
    
    does not come into force by the end of the period referred to in clause
2.2(d)(i), clause 2.6(b) shall apply on the basis that:
 (A)
    
    the Conditions were not satisfied or waived on or by the last
day of that period; and(B)
    
    this deed shall terminate and clause 2.6(b) shall apply, unless
JHINV and the NSW Government agree otherwise in writing.
 2.3 Best Endeavours to Satisfy Conditions
 (a)
    
    Each Party shall use its best endeavours promptly to satisfy each Condition for which it is
responsible including, without limitation, taking the steps set out in the timetable
initialled for identification by the Parties for which they are responsible, to the extent
possible, by the relevant date set out in that timetable. Each Party must give the Party
responsible for the satisfaction of a Condition any reasonable assistance that such
responsible party may request to satisfy that Condition. Each Party must promptly give a
Notice to the other Parties that a Condition for which it is responsible has been satisfied
upon becoming aware of that satisfaction.(b)
    
    Prior to the Commencement Date, without prejudice to any right or remedy of the NSW
Government, the releases and extinguishments of liabilities set out in the Release Legislation
in respect of Persons who are not natural persons may only be suspended by the NSW Government
if:
 (i)
    
    JHINV or the Performing Subsidiary is and remains in breach of its obligations
under clauses 2.3(a)or 2.4; or(ii)
    
    this deed is terminated under clause 2.6, on or after the conclusion of the
negotiations (if any) under clause 2.6(d),
 provided that any suspension of such releases shall not take effect less than 14 days after
JHINV has been Notified of any proposed suspension. This clause 2.3(b) shall have no
operation after the Commencement Date.




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##### 



35 (c)
    
    The NSW Government must revoke the suspension of any release of liability suspended as a
result of a breach of a kind described in clause 2.3(b) immediately upon JHINV remedying that
breach and Notifying the NSW Government demonstrating that such a breach has been remedied.
 2.4 Specific actions to be taken by each party
 clause 2.3
 In relation to this
    
    this party isCondition...
    
    responsible...
    
    ...and must take this action:Clause 2.1(a)
    
    JHINV
    
    Seek relevant taxation opinions or
rulings (where applicable).JHINV and the
Trustee
    
    Participate in discussions with Federal
Government regarding income tax
exemption of the Trustee and tax
deductibility of payments to the
Trustee.Clause 2.1(b)
    
    JHINV
    
    Retain and instruct Independent Expert.Clause 2.1(c)
    
    JHINV
    
    Request JHINV Boards to consider this
resolution.Provide JHINV Boards with the material
information relevant to their decision
whether to pass this resolution.Clause 2.1(d)
    
    JHINV
    
    Comply with clause 2.5.Clause 2.1(e)
    
    JHINV
    
    Provide the Initial Lenders with the
material information relevant to their
decision whether to give their approval.Seek the approval of the Initial Lenders
for the entry into and implementation of
this deed.Clause 2.1(f)
    
    NSW Government
    
    On a timely basis, introduce the
Transaction Bill into Parliament, cause
it to be debated and considered by
Parliament and, if passed, seek royal
assent in relation thereto and the
timely commencement of the operation of
such legislation.




---



##### 



36 In relation to this
    
    this party isCondition...
    
    responsible...
    
    ...and must take this action:Clause 2.1(g)
    
    NSW Government
    
    On a timely basis, introduce the Release
Bills into Parliament, cause them to be
debated and considered by Parliament
and, if passed, seek royal assent.Clause 2.1(h)
    
    Each Party
    
    Execute those Related Agreements to
which it is a party.Clause 2.1(i)
    
    JHINV
    
    Provide the confirmation set out in
clause 2.1(i)(i).NSW Government
    
    Provide the confirmation set out in
clause 2.1(i)(ii). If the shares
described therein are not transferred
within the date described therein, issue
the order described in clause 2.1(i)(B).Clause 2.1(j)
    
    JHINV
    
    Procure the delivery of the legal
opinions referred to in that clause.Clause 2.1(k)
    
    Trustee
    
    Retain and instruct the Approved Actuary.JHINV
    
    Provide waiver of conflict letter.Clause 2.1(l)
    
    All Parties
    
    Execute Deed of Accession.Clause 2.1(m)
    
    Performing
Subsidiary
    
    Once all other Conditions have been
satisfied in full or waived by agreement
in writing by the Parties, deposit the
Initial Funding into the Fund Account
 2.5 Shareholder Documentation
 clause 2.3
 (a)
    
    provide permitted recipients under the terms of a confidentiality deed duly executed by inter
alia the NSW Government and JHINV on or by the date of this deed with access (and subject at
all times to the NSW Government and the other permitted recipients adhering to the
confidentiality requirements set out in that deed) to enable them to review (but not take a
copy of) a verification
draft of the Shareholder Documentation at least 10 days before the proposed date of despatch
to the Shareholders;




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##### 



37 (b)
    
    consider in good faith any comments of the NSW Government on the draft Shareholder
Documentation;(c)
    
    ensure that the Shareholder Documentation complies in all material respects with all
disclosure requirements under applicable Dutch laws and regulations and, to the extent
applicable, under the Australian and US laws, regulations and ASX Listing Rules and equivalent
US requirements;(d)
    
    promptly convene a meeting of Shareholders and despatch the Shareholder Documentation
following the date on which such actions are resolved to be taken by the JHINV Boards; and(e)
    
    ensure that if it or any other member of the JHINV Group becomes aware that clause 2.5(c) has
not been complied with, it makes timely and adequate disclosure of such further matters
required to be disclosed under the relevant law, regulation or listing rule, in each case,
using best endeavours to achieve those steps.
 2.6 Failure to satisfy Conditions
 clause 2.1 clause 2.2(a) clause 2.2(d)(ii) clause 6.4(i)
 (a)
    
    any Party may, by Notice to the others, terminate this deed and each of the Related
Agreements;(b)
    
    where that termination occurs:
 (i)
    
    each Party is relieved of any further obligation under this deed other than
under this clause 2.6, clauses 23, 25to 27and 29to 34inclusive, which will survive
termination;(ii)
    
    any amount received by the Trustee from JHINV or the Performing Subsidiary
pursuant to this deed or a Related Agreement before that time must be refunded in full
to JHINV, excluding:
 (A)
    
    any monies paid under clause 17.1on terms that such funding is
not required to be repaid (either generally or in specified circumstances,
where those circumstances have arisen); and(B)
    
    any amounts which, as at the date of termination, the Trustee
or Liable Entities:
 I.
    
    have paid out in settlement of SPF Funded
Liabilities;II.
    
    have incurred a liability to pay SPF Funded
Liabilities; or




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##### 



38 III.
    
    reasonably expect will be required to be paid
to meet Proven Claims arising from Personal Asbestos Claims and Marlew
Claims which were notified by Claimants to the Trustee or the Liable
Entities prior to the date of termination; and
 (iii)
    
    each of the Parties undertakes that it will not take any steps to prevent or
impede the repayment of any monies required to be repaid to the Performing Subsidiary
or JHINV in accordance with this clause; and(iv)
    
    such monies shall only be taken to be repaid for the purposes of this clause
2.6when received by JHINV in cleared funds in an account nominated by JHINV (and for
this purpose the Performing Subsidiary authorises and directs that any amounts due to
be refunded to it pursuant to this clause 2.6must be paid directly to JHINV);
 (c)
    
    the termination does not affect accrued rights arising from any breach of this deed occurring
before such termination; and(d)
    
    following termination, where practicable the Parties must negotiate in good faith for a
period of up to one month, to seek, on a bona fide basis, to agree to alternative arrangements
in relation to any Condition or Conditions which have not been satisfied as will enable such
Condition(s) to be:
 (i)
    
    satisfied in an alternative manner; or(ii)
    
    where agreed in writing between the Parties, disregarded or no longer required.
 2.7 Commencement Date
 clause 2.1(m)
 2.8 Representations and Warranties
 (a)
    
    JHINV represents and warrants that the statements set out in Part 1of Schedule 2are true
and accurate as at the date of this deed.(b)
    
    On the date of this deed, JHINV has provided to the NSW Government, and the NSW Government
acknowledges receipt, of an officers certificate signed by the chief financial officer of
JHINV in the form set out in Part 2of Schedule 2.




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39 
 3 STRUCTURE
 3.1 Agreed Structure
  3.2 Selection of Agreed Structure
 clause 5.4
 3.3 No recourse
 (a)
    
    The Parties agree that, without prejudice to the NSW Governments ability to undertake
adverse legislative or regulatory action against the JHINV Group in the manner permitted under
clause 13during any period where the circumstances set out in clauses 13.2(d) or 13.3(d)
apply, neither JHINV nor any other member of the JHINV Group shall have any obligations, and
there shall be no (and the Parties shall not seek) recourse to any of them, with respect to
any liabilities of the Liable Entities, other than and then only to the extent set out in:
 (i)
    
    this deed and the Related Agreements; and(ii)
    
    the Transaction Legislation and the Release Legislation, each as in force in
the form accepted by JHINV as satisfying the Conditions set out in clauses 2.1(f) and
(g)respectively, or as may be amended by NSW Government (in relation to amendments
which would not adversely affect JHINV, the Performing Subsidiary or the Fund) or
following agreement in writing with JHINV (in relation to any amendments which would
adversely affect any of those parties).
 (b)
    
    The Parties agree that Claimants have no rights arising under this deed or any Related
Agreement against any of the Parties to this deed or any Related Agreement.
 4 THE FUND
 4.1 Governing law and principal place of business of the Trustee
  (a)
    
    remains governed by the laws of New South Wales; and(b)
    
    maintains its principal place of business in New South Wales.




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40 
 4.2 Role of the Trustee
 clauses 4.2(c), (d), (h)(ii), (i) and
(k)
 (a)
    
    hold the benefit of the Funding Obligations and the obligation of the Performing Subsidiary
(if applicable) to pay the Wind-Up or Reconstruction Amount in accordance with clause 10, the
JHINV Guarantee and of JHINVs covenants and obligations under this deed and the Related
Agreements to ensure the payment by the JHINV Group of the JHINV Contributions under this deed
and any Cross Guarantee given pursuant to clause 15.7, and enforce the same as may be required
from time to time;(b)
    
    be the creditor of the Performing Subsidiary and JHINV for payments (whether actually or
contingently) due and payable to the Trustee under this deed and receive and give a proper
receipt for such amounts;(c)
    
    manage itself or through one or more of the Liable Entities or otherwise cause to be managed,
the response to all Payable Liabilities for itself or for or on behalf of the Liable Entities
(and in respect of Payable Liabilities which are not SPF Funded Liabilities, on the basis that
the Liable Entities must bear the full cost and all liabilities associated with such claims);(d)
    
    subject to it having the necessary funds to do so and clause 9.15,pay in accordance with and
subject to clause 4.7and the provisions of the Transaction Legislation, SPF Funded
Liabilities itself or through one or more of the Liable Entities, and in each case for itself
or for or on behalf of the Liable Entities as the Trustee may in its discretion determine;(e)
    
    use its best endeavours to achieve all available legal and administrative cost savings in
relation to:
 (i)
    
    the process for handling the response to Personal Asbestos Claims and Marlew
Claims;(ii)
    
    court proceedings dealing with apportionment of damages in relation to Personal
Asbestos Claims and Marlew Claims; and(iii)
    
    exercising rights of recovery;
 (f)
    
    review and implement legal and administrative cost savings in the claims management process
on a continuing basis both in relation to the process for settling Personal Asbestos Claims
and Marlew Claims and the process generally applicable in relation to Personal Asbestos Claims
and Marlew Claims, including reducing Claims Legal Costs;(g)
    
    invest the assets contributed to or received by the Trustee;




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41 (h)
    
    use its best endeavours to:
 (i)
    
    recover;(ii)
    
    procure that each Liable Entity recover; and(iii)
    
    exercise or procure the exercise of rights subrogated from any Claimant to
recover,
 amounts paid or liabilities incurred with respect to any Personal Asbestos Claims, Marlew
Claims or any other Payable Liabilities from insurers, reinsurers and other parties who may
have contributed to the loss relating to such claims;(i)
    
    generally do all things necessary and convenient for the purposes of handling and finalising
Payable Liabilities for itself or for and on behalf of the Liable Entities (provided that
nothing in this deed shall require the Trustee to incur any liability or pay any amount with
respect to a liability which is not a SPF Funded Liability);(j)
    
    as provided by the Transaction Legislation or to the extent otherwise entitled to do so, be
subrogated to the rights of the Claimants against the Liable Entities and Marlew or any other
persons in relation to any Payable Liability settled or met by the Trustee; and(k)
    
    be authorised and permitted to negotiate with Claimants and at its discretion procure that
the relevant Liable Entity enter into binding settlements in relation to (including without
limitation compromises of Payable Liabilities).
 4.3 Association of the Trustee with JHINV
 (a)
    
    If at any time the Trustee is proposed to become part of, or an associate of, the JHINV Group
other than as contemplated under clauses 4or 5(excluding this clause 4.3), the Trustee and
JHINV must give the NSW Government at least 90 days prior Notice with such Notice containing
all relevant details of the proposal (Relevant Proposal). Such association may only occur if
the NSW Government gives Notice that it is satisfied, acting reasonably and diligently:
 (i)
    
    with the adequacy of the protections afforded with respect to the Trustee;(ii)
    
    that any Insolvency within the JHINV Group will not result in the Trustee also
becoming insolvent, save to the extent that the group Insolvency may impact on the
payment of the JHINV Contributions; and(iii)
    
    that creditors of the JHINV Group will not have access to any funds or assets
of the Trustee or the Liable Entities for payment of liabilities owing to them in their
capacity as creditors of the JHINV Group.




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42 
 (b)
    
    The NSW Government shall be taken to be satisfied with a Relevant Proposal and to have given
Notice to that effect if, by the end of the 90 day Notice period or such longer period as
extended under clause 4.3(c), it has not given any Notice to JHINV of its decision in relation
to such Relevant Proposal.(c)
    
    Before the end of the 90 day Notice period, the NSW Government may extend by Notice the
period within which it must make a decision on the Relevant Proposal by an additional 60 days
commencing immediately after the last day of the first 90 day period.(d)
    
    If the NSW Government is not satisfied as to the matters in clause 4.3(a), it must give
Notice of its decision (including reasons) within the 90 day Notice period or such longer
period as extended under clause 4.3(c).(e)
    
    Without limiting any other rights or remedies available to JHINV or the Trustee, either or
both of those Parties may seek a declaratory relief from a Court in relation to an adverse
decision of the NSW Government under clause 4.3(d), but JHINV and the Trustee agree not to
implement any step of the proposal unless and until such declaration of the Court has been
made.(f)
    
    Where a Relevant Proposal will or may reasonably be expected to result in clause 6.4(a)
having any operation, the NSW Government shall be entitled to reject that Relevant Proposal.(g)
    
    Nothing in this clause 4.3derogates from, or reduces or increases the rights or obligations
of JHINV and the Performing Subsidiary under any other provision of this deed.
 4.4 Trustee Covenants
 (a)
    
    The Trustee covenants in favour of each other Party to fully comply with the terms of the
Trust Deed and with its obligations under this deed.(b)
    
    Subject to clause 9.15, the Trustee covenants that it will ensure that each Liable Entity
will continue to trade notwithstanding the occurrence of an Insolvency Event of that Liable
Entity so long as the Transaction Legislation permits the Liable Entity to do so and no other
law prohibits the Liable Entity from doing so.(c)
    
    The Trustee covenants in favour of the other Parties that it will comply with all conditions
attaching to any exemption given, from time to time, under federal law which has been accepted
by JHINV under clause 2.2(b) or clause 6.4of this deed in respect of Taxation of the Trustee
in relation to the Fund (including the Taxation of the income of the Fund).
 4.5 Inconsistency




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43  4.6 Alternative payment mechanism if Trustee insolvent etc .
 (a)
    
    In the event that the Trustee is unable by operation of law or incapacity to carry out its
functions under clause 4.2(a) and (c), for whatever reason including Insolvency, each Party
agrees to use all reasonable endeavours to overcome that difficulty, including by replacing
the Trustee where the new Trustee, while governed in the same way as the outgoing Trustee,
would not suffer the same inability.(b)
    
    If after 6 months the Trustee or any replacement Trustee remains unable to carry out its
functions for the reasons set out in clause 4.6(a), then unless that inability has arisen by
reason of any breach of this deed by the NSW Government (whether by an act or an omission by
the NSW Government) or an act of the NSW Government, the NSW Government may, subject to the
remainder of this clause 4.6, establish an alternative payment mechanism by giving Notice to
JHINV of the Person to whom the Funding Payments (and, to the extent payable, any Wind-Up or
Reconstruction Amount) shall be made for the benefit of Claimants having Proven Claims (the
New Person) and the Performing Subsidiary shall thereafter make such payments to the New
Person in substitution for the Trustee.(c)
    
    Nothing in this clause 4.6will, and no alternative funding arrangements established under
this clause may:
 (i)
    
    negate or reduce or increase the continuing obligations of JHINV or the
Performing Subsidiary under this deed; or(ii)
    
    entitle the NSW Government or any Government Authority (whether directly or
indirectly) to the benefit of any amounts paid or which are or may become payable to
the Trustee by JHINV or the Performing Subsidiary under this deed or any Related
Agreement.
 (d)
    
    Any nomination by the NSW Government of a Person as the New Person shall not be effective
unless and until that Person irrevocably agrees in favour of the Parties to perform the
obligations of the Trustee under this deed and the Related Agreements to which the Trustee is
a party, and the Parties agree promptly to comply with clause 1.4(c) by executing a novation
deed.(e)
    
    The NSW Government must ensure that the New Person nominated by it pursuant to clause 4.6(b)
is reasonably capable of properly and diligently performing and discharging the obligations
described in clause 4.6(d).(f)
    
    The NSW Government must not nominate a New Person to be appointed under this clause 4.6which
is not incorporated in Australia without the prior written consent of JHINV.




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44 
 4.7 Indemnity by Liable Entities
  5 GOVERNANCE AND AUDIT OF THE FUND
 5.1 The Trustee Board
 (a)
    
    The management of the Fund shall vest in the Trustee.(b)
    
    The Trustee Board shall consist of a minimum of three Directors and a maximum of five
Directors as determined by the Directors.(c)
    
    Initially there shall be five Directors. JHINV must appoint three of those initial Directors
and the NSW Government must appoint two of those initial Directors.
 5.2 Power to appoint directors
 (a)
    
    Subject to clause 16.3(b):
 (i)
    
    JHINV shall be entitled to appoint a majority of the Directors from time to
time to the Trustee Board and to designate one of those Directors to be Chairman;(ii)
    
    JHINV may, by Notice to the other Parties, nominate a subsidiary for so long as
it remains a subsidiary of JHINV, to exercise its rights under this clause 5.2(a); and(iii)
    
    JHINV shall, or shall procure that the nominated subsidiary shall, promptly
give Notice to the Trustee and the NSW Government of any appointment made pursuant to
this clause 5.2(a).
 (b)
    
    The NSW Government shall be entitled to appoint the remaining Directors.(c)
    
    If the NSW Government appoints officers of the NSW Government as Directors, the Trustee shall
and JHINV shall procure that the Directors nominated by it vote in favour of any resolutions
of the Trustee Board necessary to ensure that to the extent permitted by applicable law the
Trustee waives any potential conflicts of interest arising because the officer is both a
Director and has duties to the NSW Government as a public servant.




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45 (d)
    
    A Party shall promptly remove a Director appointed by that Party from office if that Director
has committed, or is suspected on reasonable grounds by one or more Parties, of having
committed a material breach or successive breaches of confidentiality in relation to the
affairs of the Trustee or any of the Parties in connection with this deed or who otherwise
engages in conduct which renders him or her unsuitable to be a Director.
 5.3 Power to remove and replace Directors
 ,
 5.4 Quorum
  (a)
    
    subject to clause 5.4(b),if a quorum is not present at a meeting, the meeting shall be
reconvened by Notice to a date no less than 24 hours after the date of the original meeting
(or such time as is reasonable in cases of emergency) and the quorum for such a reconvened
meeting of which all Directors have been given notice in writing shall be at least two
Directors; and(b)
    
    if clause 16.3(b) applies, the quorum shall be determined in accordance with clause
16.3(b)(i).
 5.5 Voting at Trustee Board meetings
 (a)
    
    Except as otherwise specified in this deed, at any meeting of the Directors, each Director
has one vote.(b)
    
    If a Director representative of a Party and his or her alternate Director is absent, the
remaining Director representatives of that Party shall be entitled to jointly exercise the
absent Directors vote.
 5.6 Chairman and Chairmans vote
  5.7 Interests of Appointor
 (a)
    
    Subject always to a Directors obligations under the Trust Deed, the Trustee Constitution,
statute or otherwise at law, a Director may take into account the views of that Directors
Appointor and may act on the wishes of that Appointor in performing any of his or her duties
or exercising any power, right or discretion as a Director in relation to the Trustee.




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46 (b)
    
    A Director may provide that Directors Appointor with copies of all documents, Board Papers
and other material which come into the possession of the Director in that capacity and may
disclose to and discuss with the Appointor all information to which the Director becomes privy
in that capacity.
 5.8 Adjournment
  (a)
    
    if clause 5.4(a) applies,the time specified in that clause; and(b)
    
    in any other case the same time and place seven days after the meeting or to another day,
time and place determined by those Directors present.
 5.9 Alternate Directors
 clause 5.9
 5.10 Chief Executive Officer
  5.11 Insurance and Indemnities
  5.12 Approved Auditor
 (a)
    
    The Trustee shall, with the consent of each of the NSW Government and JHINV, appoint and
continue to retain an Approved Auditor to be the auditor of the Trustee.(b)
    
    The Trustee shall, before purporting to appoint an Approved Auditor, give Notice to the NSW
Government and JHINV setting out:
 (i)
    
    the name and address of the proposed appointee;(ii)
    
    the qualifications and experience of the proposed appointee; and(iii)
    
    all information that it has concerning the independence (or potential
conflicts of duty affecting or that may affect) the proposed appointee (including any
information concerning the matters set out in clause 5.12(d)(iii)).




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47 
 (c)
    
    The consent of each of the NSW Government and of JHINV to the appointment of any Approved
Auditor shall not be unreasonably withheld. If the Trustee gives Notice in accordance with
clause 5.12(b) and the NSW Government or JHINV (as the case may be) either gives consent or
does not give Notice to the Trustee Board refusing consent (with reasons) within one month of
the Trustee Boards Notice to it, the Trustee Board may appoint the Person specified in its
Notice.(d)
    
    The Approved Auditor must at all times:
 (i)
    
    be a registered company auditor;(ii)
    
    have appropriate qualifications and experience to be able to perform the audit
expected to be performed as at the time of the appointment; and(iii)
    
    not be associated with the current Approved Actuary of the Trustee or the NSW
Government Reviewing Actuary and not associated with any firm who has held either of
those roles within the last 5 years.
 (e)
    
    If after having made reasonable enquiries and assessment the Trustee has not been able to
identify an auditor who meets all of the requirements set out in clause 5.12(d) above, or the
NSW Government or JHINV has given Notice refusing consent in accordance with clause 5.12(c),
the Trustee shall notify the other Parties of that fact and, failing agreement between the
Parties within 21 days as to an auditor acceptable to all of the Parties, the Trustee shall
promptly refer the matter and relevant correspondence between the Parties (including reasons
for refusal to a particular auditor being appointed)) to the President of the Institute of
Chartered Accountants of Australia, who shall have the sole power to determine an available
auditor who best meets those requirements. Upon being given Notice of such auditor, the
Trustee must promptly offer to engage the selected auditor to audit the Trustee on usual
commercial terms. Any refusal by JHINV or NSW Government to consent to the appointment of a
Person as an Approved Auditor does not prevent the said President from appointing that Person
as the Approved Auditor.(f)
    
    The reports of the Approved Auditor to the Trustee shall be provided to the Trustee with
copies to JHINV and the NSW Government.(g)
    
    The Trustee must:
 (i)
    
    prepare a set of consolidated financial statements for the Trustee and the
Liable Entities in respect of each Financial Year during the Term, in accordance with
requirements applicable under the Corporations Actand in accordance with Australian
generally accepted accounting principles (or on such other basis as may be agreed
between the Parties); and




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48 (ii)
    
    engage the Approved Auditor to audit those financial statements on a timely
basis in respect of each Financial Year and to provide a copy of the relevant audit
reports to the other Parties to this deed.
 5.13 Government Review
 (a)
    
    The NSW Government may by Notice to the Trustee and JHINV, at its own cost, appoint an
auditor (NSW Government Auditor) to conduct a general or more limited audit of the activities,
affairs and financial position of the Trustee. The NSW Government Auditor must also satisfy
the requirements described in clause 5.12(d).(b)
    
    The Notice appointing a NSW Government Auditor must specify the scope of the proposed audit.(c)
    
    The NSW Government Auditor may not commence the proposed audit until 10 Business Days after
the Notice under clause 5.13(a) has been received by the Trustee and JHINV.(d)
    
    The Trustee must give the NSW Government Auditor:
 (i)
    
    full and free access to the books and records of the Trustee at its premises;(ii)
    
    all reasonable assistance and explanations of information that the NSW
Government Auditor may request; and(iii)
    
    to the extent the Trustee is entitled to do so without being in breach of any
confidentiality obligation to which it is subject, access to the working papers of all
Approved Auditors.
 (e)
    
    The NSW Government Auditor must give its report (which must include all of its material
findings and recommendations) to the NSW Government with copies to the Trustee and JHINV.
Otherwise it must keep its report and all the information made available to it during its
audit by the Trustee confidential.
 5.14 Reporting
  5.15 Approved Actuary
 (a)
    
    The Trustee must ensure that at all times during the Term an Approved Actuary is retained by
the Trustee on terms consistent with the terms of this deed.(b)
    
    The Trustee shall appoint KPMG Actuaries as the initial Approved Actuary and may:




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49 
 (i)
    
    terminate the appointment of any Approved Actuary; and(ii)
    
    appoint another person as the Approved Actuary with the prior consent of the
NSW Government and JHINV,
  (A)
    
    meet the requirements set out in paragraph (a) of the definition of Approved
Actuary and that if that principal changes the Approved Actuary must notify the
Parties to this deed of the new principals qualifications and experience details; and(B)
    
    ensure that at all times such a principal is so nominated.
 (c)
    
    The Trustee shall, before purporting to appoint an Approved Actuary other than KPMG Actuaries
Pty Limited (which is to be appointed as the initial Approved Actuary in accordance with
clause 5.15(b)), give Notice to the NSW Government and JHINV setting out:
 (i)
    
    the name and address of the proposed appointee;(ii)
    
    all information that it has concerning the proposed appointee relating to their
satisfying the definition of Approved Actuary in clause 1.1.
 (d)
    
    Where the NSW Governments or JHINVs consent to the appointment of any Approved Actuary is
required, such consent shall not be unreasonably withheld and shall be taken to be given if
the NSW Government or JHINV (as the case may be) does not give Notice to the Trustee and to
the other of them refusing consent (with reasons) to that Person being appointed within 1
month of the Trustees Notice to it.(e)
    
    In the event that the Approved Actuary ceases at any time to satisfy the requirements set out
in the definition of Approved Actuary, or to continue to have the qualifications and
attributes which resulted in the engagement of that Person as the Approved Actuary, then the
Trustee shall appoint another Person, with the consent of the NSW Government and JHINV, to be
sought in accordance with clause 5.15(c) and given in accordance with clause 5.15(d) or, if
such consent is refused, under clause 5.15(f).(f)
    
    If after having made reasonable enquiries and assessment the Trustee has not been able to
identify an actuary who meets all of the requirements set out in the definition of Approved
Actuary in clause 1.1, or the NSW Government or JHINV has given Notice in accordance with
clause 5.15(d) refusing consent, the Trustee shall notify the other Parties of that fact and,
failing agreement between the Parties within 21 days as to an actuary acceptable to all of the
Parties, the Trustee shall promptly refer the matter (including relevant correspondence
between the Parties (including reasons for refusing that a




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50 particular actuary be appointed)) to the President of the Institute of Actuaries of
Australia, who shall have the sole power to determine an available actuary who best meets
those requirements. Upon being given Notice of such actuary, the Trustee must promptly offer
to engage the selected actuary as Approved Actuary on usual commercial terms. Neither the
NSW Governments nor JHINVs refusal to consent to the appointment of a Person as an
Approved Actuary shall prevent the said President from appointing that Person as an Approved
Actuary.(g)
    
    If a replacement Approved Actuary is to be appointed, the Trustee must use its reasonable
endeavours to procure that until such appointment, the current Approved Actuary continues in
its role as such, and the Approved Actuary shall be permitted to do so despite any event
described in clause 5.15(a) while a replacement is found.
 5.16 Free Cash Flow Certification
  (a)
    
    by using its best endeavours to procure that the JHINV Auditor confirms the calculation of
the amount of that Free Cash Flow in a certificate signed by it addressed to JHINV, the NSW
Government and the Trustee;(b)
    
    if the JHINV Auditor is unavailable or unwilling to provide such a certificate, by disclosing
to the other Parties the reasons known to JHINV for such unavailability or unwillingness and
by using its best endeavours to procure that another suitably qualified auditor of similar
standard and reputation provides such a certificate; and(c)
    
    by providing that certificate to each of the Trustee and the NSW Government.
 6 FUNDING OBLIGATIONS OF JHINV AND THE PERFORMING SUBSIDIARY
 6.1 Primary Funding Obligation
 clause 9
 6.2 Substitution of Performing Subsidiary
 (a)
    
    JHINV:
 (i)
    
    may, subject to there being no Funding Obligations or other amounts due and
payable by the Performing Subsidiary under this deed which




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51 remain outstanding, by Notice to the Trustee (with a copy to the NSW Government)
from time to time;(ii)
    
    must, on request from the NSW Government to do so after the occurrence of an
Insolvency Event in respect of the Performing Subsidiary which has not been cured
before the earlier of the next date on which the Performing Subsidiary is due to make a
payment to the Trustee under this deed and the date falling 3 months after that
Insolvency Event; and(iii)
    
    must, if required under clause 6.3, in accordance with clause 6.2(b), replace
the Performing Subsidiary with another subsidiary of JHINV as the person primarily
liable for the payment to the Trustee of the JHINV Contributions and the performance of
all other obligations and liabilities of the Performing Subsidiary under this deed and
the Related Agreements.
 (b)
    
    A substitution under clause 6.2(a) will not occur unless and until:
 (i)
    
    the incoming party is not subject to an Insolvency Event;(ii)
    
    the incoming party duly executes and delivers a novation deed to and in favour
of the Parties in the form set out in Schedule 9under which, among other things, all
obligations of the outgoing Performing Subsidiary under this deed are assumed by the
incoming party;(iii)
    
    where the incoming party is not a wholly owned subsidiary of JHINV, or if the
NSW Government so requests, JHINV duly executes and delivers to the Trustee and the NSW
Government a guarantee in respect of the obligations of the incoming party which is
mutatis mutandison the same terms as the current JHINV Guarantee; and(iv)
    
    if the incoming party is not incorporated in or within Australia, JHINV
procures the delivery of an opinion of generally recognised independent legal counsel
qualified to practice in the relevant jurisdiction to the effect that all deeds of
accession or novation, agreements or other instruments effecting such assumption are
valid, binding and enforceable in accordance with their terms and comply with the
requirements set out in this deed and the Related Agreements in relation to such deeds
or instruments (assuming, for the purposes of such opinion, the validity of all terms
of this deed and all Related Agreements); and(v)
    
    where the outgoing Performing Subsidiary has been subject to an Insolvency
Event, JHINV executes and delivers to the Trustee and the NSW Government a deed poll in
favour of them acknowledging that despite any compromise or extinguishment of the
Funding Obligations under that Insolvency Event, the nature and the value of
obligations of the incoming Performing Subsidiary and JHINV under this deed and the




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JHINV Guarantee (including in relation to the Funding Obligations and (where payable)
the Wind-Up or Reconstruction Amount) have not been reduced or compromised by that
compromise or extinguishment and procures that the incoming party provides a
corresponding acknowledgement in respect of its obligations under the Principal Deed
and the Related Agreements save that this clause 6.2(b)(v) does not apply where at the
time of substitution under clause 6.2(a), both the Insolvency Event has been discharged
or cured, and such discharge or cure did not involve any such compromise or
extinguishment of the above mentioned rights which would affect the obligations of the
incoming Performing Subsidiary.
 (c)
    
    If JHINV nominates a new Performing Subsidiary pursuant to this clause 6.2which is not an
Australian Tax resident for the purposes of the Income Tax Assessment Act 1997(Cth) or which
is a resident of a country other than Australia for taxation purposes, then:
 (i)
    
    the new Performing Subsidiary shall be liable to make the Funding Payments free
and clear of any Tax due or payable in any country other than Australia;(ii)
    
    if that Performing Subsidiary is or becomes subject to a law of any
jurisdiction outside Australia which requires deductions or withholdings of amounts
from the Funding Payments, then that Performing Subsidiary shall make such deduction or
withholding but shall pay an additional amount in respect of each affected Funding
Payment as shall be required so that such aggregate amount in respect of the Funding
Payment as is received by the Trustee will not be less than the amount of such Funding
Payment assuming no deduction or withholding was required; and(iii)
    
    clause 6.4(a) shall have no operation in respect of that new Performing
Subsidiary.
 6.3 Cessation of Subsidiary Status
 clause 6.2(a) clause 6.2(b)(ii)
 6.4 Continuity of satisfaction of Tax Requirements
 (a)
    
    Subject to the remainder of this clause 6.4, any obligations of JHINV or the Performing
Subsidiary to make payments under this deed or any Related Agreement other than the Initial
Funding shall be conditional upon, and neither




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53 JHINV nor the Performing Subsidiary shall have
any obligation to make such payments unless:
 (i)
    
    binding legislation or a binding private ruling which satisfies the Tax
Requirements has come into full force; and(ii)
    
    if the applicable legislation or ruling (as the case may be) to give effect to
an announcement by the Treasurer under clause 2.2(b)(iii), when enacted or made,
imposes any additional conditions or qualifications to the Tax Requirements being or
remaining satisfied, those conditions are acceptable to JHINV acting reasonably; and(iii)
    
    there is no Change in Tax Law which results in, or which will if implemented
result in, one or more of the Tax Requirements ceasing to be satisfied.
 (b)
    
    If payment of the JHINV Contributions to the Trustee is a deductible expense of a JHINV Group
Taxpayer for the purpose of determining the taxable income of that JHINV Group Taxpayer for
the purposes of the Tax laws of Australia, but the JHINV Group Taxpayer:
 (i)
    
    is entitled to a partial (but not a full) deduction for Tax purposes in respect
of the aggregate JHINV Contributions incurred in the relevant year of Taxation and the
loss of deductibility affects not more than a de minimusamount of the aggregate JHINV
Contributions in that year; or(ii)
    
    is entitled to a deduction on a deferred basis or in respect of a year of
Taxation other than the year in which the JHINV Contribution is paid or incurred and
JHINV has elected by Notice to the NSW Government that this clause 6.4(b)(ii) shall
apply.
 then clause 6.4(a) shall have no operation in relation to such de minimusloss of
deductibility or such matter in respect of which JHINV has given a Notice under clause
6.4(b)(ii) respectively.
 (c)
    
    Any imposition of Taxes on the Trustees income (including without limitation the receipt by
the Trustee of JHINV Contributions) shall not trigger the operation of this clause 6.4where
such Taxes are not more than a de minimusamount of such income.
 (d)
    
    Clause 6.4(a) shall have no operation:
 (i)
    
    in relation to a year or years of Taxation, where JHINV makes an irrevocable
election by Notice in writing to the other parties to this deed that clause 6.4(a)
shall not operate in relation to that year or years of Taxation or in relation to
particular forms or levels of Taxation;(ii)
    
    where any of the Tax Requirements ceases to be satisfied by reason of any
Accepted Tax Condition ceasing to be satisfied by reason of any




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54 
 deliberate or reckless
act or omission of any member of the JHINV Group; or(iii)
    
    where any of the Tax Requirements ceases to be satisfied by reason of any
Accepted Tax Condition ceasing to be satisfied by reason of any inadvertent or
negligent act or omission of any member of the JHINV Group, unless:
 (A)
    
    JHINV has:
 I.
    
    given Notice to the Trustee and the NSW
Government of the relevant circumstances; andII.
    
    paid or agreed to pay any applicable penalty or
interest reasonably imposed by assessment of the Australian Taxation
Office and has taken such other reasonable steps as necessary to remedy
the non-compliance with the Accepted Tax Condition; and
 (B)
    
    either:
 I.
    
    the Australian Taxation Office has then revoked
or withdrawn the deductibility of the JHINV Contributions or has not
otherwise confirmed to JHINV within 12 months of the date of Notice
under paragraph (A) that the Tax Requirements will thereafter be
satisfied; orII.
    
    where the Tax Requirements were satisfied under
the legislation in force, that legislation is amended or repealed so as
to result in the Tax Requirements ceasing to be satisfied and alternate
legislation resulting in the Tax Requirements being again satisfied
does not come into force within 12 months of the date of amendment or
repeal of the earlier legislation.
 (e)
    
    If the Performing Subsidiary is replaced with another JHINV subsidiary that is an Australian
tax resident for the purposes of the Income Tax Assessment Act 1997(Cth), clause 6.4(a) shall
not be triggered where any of the Tax Requirements ceases to be satisfied by reason of that
replacement resulting (whether immediately or subsequently) in any Accepted Tax Condition not
being satisfied, including as a result of a Change of Tax Law which, at the time of replacing
the Performing Subsidiary, was in force or which could not, on reasonable grounds have been
anticipated at that time to come into force and which would not have applied to the initial
Performing Subsidiary as a Change of Tax resulting in a Tax Requirement ceasing to be
satisfied.
 (f)
    
    Clause 6.4(a) shall have no operation in respect of an obligation to pay the Wind-Up or
Reconstruction Amount where a Tax Requirement ceases to apply




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55 solely by reason of the Wind-Up
Event or Reconstruction Event to which the Wind-Up or Reconstruction Amount relates.
 (g)
    
    For the avoidance of doubt, this clause 6.4may operate as a result of the Tax Requirements
ceasing to be satisfied as a result of or following the substitution of the Trustee (after
appropriate consultation) with an alternative payee pursuant to clause 4.6.
 (h)
    
    If clause 6.4(a) has any operation and subsequently legislation or a binding private ruling
resulting in the Tax Requirements being satisfied comes into force within 12 months of the
start of that operation of clause 6.4(a), then:
 (i)
    
    the Performing Subsidiary must, within 20 Business Days, pay any JHINV
Contributions or other payments which have not been paid but would have been due and
payable under this deed or any Related Agreement but which were not due and payable by
reason of the operation of this clause 6.4, together with Interest on each such payment
at the Interest Rate for the period from the date that payment would have been due and
payable but for clause 6.4until the date the payment was made; and(ii)
    
    JHINVs obligations under this deed and the JHINV Guarantee with respect to the
payment of the JHINV Contributions described in clause 6.4(h)(i) shall apply from the
date of coming into force of such legislation or ruling, as the case may be.
 (i)
    
    If clause 6.4(a) has any operation and legislation or a binding private ruling satisfying
the Tax Requirements does not come into force within 12 months of the start of that operation
of clause 6.4(a) or such later date as the Parties may agree in writing, clause 2.6shall
apply as if JHINV had validly served a Notice of termination pursuant to clause 6.4(a) on the
last day of that period or such later specified date, as the case may be.
 (j)
    
    If JHINV considers that a Change in Tax Law results or is likely to result in the operation
of clause 6.4(a) it shall give a Notice to the NSW Government containing material particulars
of that Change in Tax Law.
 7 RESTRICTIONS ON SPECIFIED DEALINGS
 7.1 Clause 7 Definitions
 (a)
    
    Unless otherwise indicated elsewhere in this deed by an express capitalised reference to a
defined term herein, the following definitions apply in and solely for the purposes of this
clause 7:Capital Management Transactionmeans any capital reduction, return of capital, share
buyback, dividend characterised by JHINV as a special dividend or other capital management
transaction having a similar effect in relation to Equity Securities of JHINV, but excludes
any Distribution.




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56 Close Groupmeans, at any time, JHINV and each member of the JHINV Group that is a wholly
owned subsidiary (whether directly or indirectly through one or more interposed wholly owned
entities) of JHINV.Distributionmeans any distribution to the Equity Securityholders in JHINV or a class of
such Equity Securityholders (other than a dividend characterised by JHINV as a special
dividend), in their capacity as such, whether by JHINV or any member of the JHINV Group,
including without limitation, any dividend or distribution in cash or in specie to, those
Equity Securityholders.Equity Distributionmeans:
 (a)
    
    any Distribution; and(b)
    
    any amount of money paid (or agreed or declared to be paid) and/or valuable
consideration provided (or agreed or declared to be provided) to Equity Securityholders
in respect of any Capital Management Transaction.
 Equity Security
 (a)
    
    a security in that Person which permits or entitles a holder of that security
to participate in:
 (i)
    
    the profits available for distribution to holders of equity of
that Person; or(ii)
    
    the surplus available for distribution to holders of equity on
a Wind Up Event of that Person,
  (b)
    
    a CHESS Depository Interest, American Depository Receipt or other Stock
Exchange traded interest (created by or at the instance of that Person) in a security
which is within paragraph (a) of this definition,
  Equity Securityholder
 Excluded Related Entity
 (a)
    
    a Parent Entity of JHINV pursuant to a transaction or related transactions
where the following requirements are satisfied:




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##### 



57 
 (i)
    
    the value of Equity Securities in the Parent Entity issued or
transferred (or to be issued or transferred) to the JHINV Equity
Securityholders in their capacity as such in connection with the transaction or
transactions by which the Person becomes a Parent Entity of JHINV is less than
80% of the aggregate value of all Equity Securities of the Parent Entity which
will be on issue immediately after fully implementing such transaction(s); and(ii)
    
    the proportion of voting shares in the Parent Entity issued or
transferred or to be issued or transferred to JHINV Equity Securityholders in
their capacity as such, as a result of the transaction or transactions by which
the Person becomes a Parent Entity of JHINV, is less than 80% of all voting
shares in the Parent Entity which will be on issue immediately after fully
implementing such transaction(s); and(iii)
    
    the transaction or transactions by which the Person becomes
the Parent Entity of JHINV are not wholly or predominantly financed (directly
or indirectly) by or on the credit of any member of the JHINV Group; or
 (b)
    
    a Sibling Entity of JHINV pursuant to a transaction or related transactions
where the following requirements are satisfied:
 (i)
    
    the aggregate value of Equity Securities in the Sibling Entity
held (or to be held) by members of the JHINV Group or issued or transferred (or
to be issued or transferred) to the JHINV Equity Securityholders in their
capacity as such in connection with the transaction or transactions by which
the Person becomes a Sibling Entity of JHINV is less than 80% of the aggregate
value of all Equity Securities of the Sibling Entity which will be on issue
immediately after fully implementing such transaction(s);(ii)
    
    the proportion of the aggregate voting shares in the Sibling
Entity held (or to be held) by members of the JHINV Group or issued or
transferred or to be issued or transferred to JHINV Equity Securityholders in
their capacity as such, as a result of the transaction or transactions by which
the Sibling Entity becomes a Sibling Entity of JHINV, is less than 80% of all
voting shares in the Sibling Entity which will be on issue immediately after
fully implementing such transaction(s); and(iii)
    
    the transaction or transactions by which the Person becomes
the Sibling Entity of JHINV are not wholly or predominantly financed (directly
or indirectly) by or on the credit of any member of the JHINV Group,




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##### 



58 
  Hybrid
 (a)
    
    one or more securities in a member of the JHINV Group that fall within
paragraph (a) or (b) of the definition of Equity Securities;
 (b)
    
    if the JHINV Group issuer is not a body with share capital, other ownership
interests conferring voting power at a general meeting of members of the JHINV Group
issuer; or
 (c)
    
    a multiple or a fraction of any of the foregoing securities.
 Independent Valuation Expert clause 7.1(b)
 Liable Group
 (a)
    
    JHINV, unless or until JHINV no longer has obligations under this deed or under
the JHINV Guarantee;
 (b)
    
    if any Person becomes and remains liable (whether in addition to or in
substitution for JHINV) to perform JHINVs obligations under this deed or the JHINV
Guarantee, that Person; and
 (c)
    
    the Performing Subsidiary from time to time.
 Market Capitalisation
 (a)
    
    the amount calculated in accordance with the following formula for each class
of Equity Securities in that Person which is Quoted:V = N x Pwhere:V is the value of that class of Equity Securities in that Person;N is the number of Equity Securities in that Person on issue in that class on that
date; andP is the VWAP of those securities during:




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##### 



59 
 (i)
    
    in the circumstances set out in clause 7.2(g), the 12 months
immediately preceding that date; and(ii)
    
    otherwise, the 5 trading days immediately preceding that date;
 (b)
    
    in respect of each class of Equity Securities in that Person which is not
Quoted, the market value of those securities as at that date, as determined by:
 (i)
    
    JHINV acting reasonably; or(ii)
    
    if required by JHINV, the Independent Valuation Expert; or(iii)
    
    the Independent Valuation Expert, if a Party, by Notice in
writing to the other Parties, requires such a determination to be made; and
 (c)
    
    in respect of each class of Hybrids of that Person, the total value
attributable to the equity component of all Hybrids, as determined on the same basis as
the determination described in paragraph (b) above,
  (d)
    
    where a security is a Quoted depository interest in respect of another security
of that Person which is not Quoted, only the Quoted depositary interest will be counted
in assessing the Market Capitalisation;
 (e)
    
    where a security is a Quoted depository interest in respect of another Quoted
security, depository interest or Hybrid of that Person, only the second-mentioned
Quoted security, depository interest or Hybrid will be counted in assessing the Market
Capitalisation;
 (f)
    
    where a security is Quoted on more than one Stock Exchange, only the price of
those securities as Quoted on the primary Stock Exchange will be counted in assessing
the Market Capitalisation; and
  Net Income
 (a)
    
    for the avoidance of doubt, deduct any Tax expense incurred or add any Tax
credit arising in that Financial Year;




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##### 



60 
 (b)
    
    deduct any increase or add back any reduction in non-cash provisions (including
Asbestos provisions) required under the GAAP in respect of which the Audited Financial
Statements are prepared with respect to the Funding Payments; and
 (c)
    
    after deducting the income statement charge in relation to minority interests
share of profits or adding the income statement credit in relation to minority
interests share of losses.
 Non-Arms-Length Dealing
 (a)
    
    between that member of the JHINV Group and any Person which is not part of
the Close Group; and
 (b)
    
    which is not on arms-length terms; and
 (c)
    
    where that member of the JHINV Group incurs or will incur a detriment (other
than a de minimusdetriment) because the terms are not arms-length terms.
 Parent Entity
 Relevant Obligations clauses 6 and 9
 Reorganisation
 (a)
    
    any:
 (i)
    
    increase or decrease in;(ii)
    
    variation of any rights attaching to all or any part of; or(iii)
    
    reorganisation or scheme of arrangement with respect to,
  (b)
    
    any:
 (i)
    
    decrease in;(ii)
    
    variation of any rights attaching to all or any part of; or




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61 (iii)
    
    reorganisation or scheme of arrangement with respect to,
 the share capital of JHINV, howsoever effected that has the effect or consequence of
adversely affecting the rights of the Trustee relative to JHINV Equity
Securityholders;(c)
    
    any Capital Management Transaction in relation to Equity Securities of JHINV,
excluding any Capital Management Transaction (or the part thereof) the only
counterparties to which are members of the Close Group;(d)
    
    any transfer by JHINV or any other member of the JHINV Group of any Equity
Securities (or if the member is not a body with a share capital, other ownership
interests conferring voting power at a general meeting of members) in any Controlled
Entity of JHINV to one or more Persons outside the Close Group;(e)
    
    any issue of Equity Securities (or if the member is not a body with a share
capital, other ownership interests conferring voting power at a general meeting of
members) in any Controlled Entity of JHINV to one or more Persons outside the Close
Group;(f)
    
    any issue, or transfer by JHINV or any other member of the JHINV Group, of
Hybrids in any member of the JHINV Group to one or more Persons outside the Close
Group; or(g)
    
    any Person becoming a Parent Entity or a Sibling Entity, other than an
Excluded Related Entity.
 Sibling Entity
 (a)
    
    the relevant Equity Securityholders continue to hold Equity Securities in
JHINV (whether or not a lesser or greater number than they held before such issue or
transfer); or
 (b)
    
    the relevant Equity Securityholders cease to hold Equity Securities in JHINV
and that Person does not immediately become a Parent Entity.
 Specified Dealing




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62 Valuation Ratiomeans the amount determined under clause 7.2(m).VWAPmeans the volume weighted average price for the specified securities over the specified
period as determined in accordance with the rules of the primary Stock Exchange on which
those securities are Listed.(b)
    
    If an Independent Valuation Expert is required to determine a matter under this clause 7,
JHINV shall use its best endeavours to procure that:
 (i)
    
    the Person appointed:
 A.
    
    is a reputable independent valuer of shares or businesses who
has the requisite financial expertise having regard to the nature of the
transaction or asset being considered;B.
    
    has declared it has no interest or duty which conflicts with
its functions as an Independent Valuation Expert under this deed;C.
    
    is not an associate (as defined in the Corporations Act) of any
member of the JHINV Group; andD.
    
    has not provided any material services to any member of the
JHINV Group within the previous 12 months other than as an Independent
Valuation Expert; and
 (ii)
    
    it appoints that Person on usual commercial terms, including that:
 A.
    
    the terms state the purpose of appointing that Person;B.
    
    the Independent Valuation Expert must:
 I.
    
    prepare a written report setting out the terms
of reference and its assessment with a statement of its detailed
reasoning for its assessment;II.
    
    address that report to JHINV, the Trustee and
the NSW Government such that each of those persons is severally
entitled to rely on such report; andIII.
    
    contemporaneously provide a copy of that report
to JHINV, the Trustee and the NSW Government, provided that no such
obligation will apply to a Person unless such Person has agreed to keep
such information confidential on the same basis as that applying under
clause 23;
 C.
    
    subject to clause 7.1(g), JHINV is responsible for the payment
of the Independent Valuation Experts costs and fees;




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63 D.
    
    the Independent Valuation Expert acts as an expert and not an
arbitrator;E.
    
    JHINV must allow the Independent Valuation Expert full and free
access to the relevant financial and other relevant information of the JHINV
Group and give the Independent Valuation Expert any assistance that the
Independent Valuation Expert may reasonably request; andF.
    
    any limitations on the liability of the Independent Valuation
Expert with respect to the engagement are consistent with usual practice for
independent valuation experts.
 (c)
    
    JHINV must by Notice inform the NSW Government and the Trustee of any appointment of the
Independent Valuation Expert at the same time such appointment is publicly announced.(d)
    
    A written report of an Independent Valuation Expert prepared and provided pursuant to clause
7.1(b) shall, in the absence of manifest error, be binding on the Parties.(e)
    
    Where a Distribution or Capital Management Transaction includes a distribution in specie or
other non-cash distribution, then for the purposes of this clause 7the amount of that part of
the distribution shall equal the market value of such property less any consideration payable
by the Equity Securityholder to the relevant member of the JHINV Group in respect of that
distribution. If there is any dispute concerning the valuation of any such distribution for
the purposes of this clause 7, a Party may require that JHINV refer the matter to an
Independent Valuation Expert or, if the Independent Valuation Expert does not so determine
within 3 months of the distribution being made, or if no Independent Valuation Expert accepts
such an appointment within that 3 month period shall be determined by an Independent Valuation
Expert appointed by the NSW Government on the same basis that JHINV is required to appoint
such an expert under clauses 7.1(b), (c)and (d)and provided that the NSW Government shall
notify JHINV immediately of any appointment by it of an Independent Valuation Expert pursuant
to this clause.(f)
    
    In this clause 7, in the case of an offer of securities for issue or transfer (and
performance of any contract arising from that offer), in determining whether the terms of that
transaction are on arms-length terms, but without limiting the circumstances in which terms
may be regarded as being on an arms-length basis:
 (i)
    
    in relation to pricing terms, any normal market discount associated with a
transaction of that kind (taking account of the nature and the terms of the securities
offered, the terms of the offer and the size of the offer) shall be disregarded;




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64 (ii)
    
    in relation to pricing terms, if the pricing of the securities offered, the
amount of any discount or both results from an open market bookbuild or auction
conducted in relation to the offer by reputable investment bankers, stockbrokers or
other relevant market intermediaries:
 A.
    
    the pricing of the securities offered shall be taken to be
arms-length pricing terms; andB.
    
    the amount of any discount shall be taken to be a normal market
discount.
 (iii)
    
    regard shall be had to all other relevant circumstances.
 (g)
    
    Where a Party exercises a right under this deed to require that a determination or estimation
is referred to an Independent Valuation Expert and the matter to be determined or estimated is
reasonably capable of being determined or reasonably estimated without such a referral, and
JHINV has made that determination or estimation and provided reasons with supporting
information in relation to that determination or estimation to the referring Party, then JHINV
shall bear the reasonable costs and expenses of the Independent Valuation Experts review of
that determination or estimation, unless the Independent Valuation Expert finds that JHINVs
determination or estimation was substantively correct, in which case such costs will be borne
by the referring Party.
 7.2 Exempt Transactions
 clause 7.2 clauses 7.3 7.6
 (a)
    
    any transaction or dealing (including, without limitation, any purchase or sale of a business
or assets, or any sale, purchase or issue of shares or securities, or a transaction or dealing
under which a liability is assumed or a Security Interest is granted) by a JHINV Group member
on arms-length terms;
 (b)
    
    any transaction (excluding any transaction with JHINV Equity Securityholders acting in their
capacity as such) of a revenue or capital nature entered into in the ordinary course of the
business of the JHINV Group taken as a whole, to be assessed having regard to the JHINV
Groups historical operations and activities over the period of 3 years prior to the relevant
transaction;
 (c)
    
    any transaction or dealing the only parties to which (other than parties whose consent is
required in order to effect such transaction or dealing and whose involvement is on arms
length terms) are Close Group members before and after the transaction or dealing, and where
no value or consideration is provided or made available to any Person outside the Close Group
other than (i) with respect to Taxes or other amounts payable to any Government Authorities in
connection with the transaction or dealing; (ii) to advisers in




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65 respect of their fees and disbursements, and (iii) to other Persons whose consent is
required in order to effect such transaction or dealing or who are otherwise involved in
implementing the transaction or dealing, again provided their involvement is on
arms-length terms;
 (d)
    
    a member of the JHINV Group making a takeover bid for shares, or other securities in, or all
or substantially all of the assets of a company or enterprise to the extent that the
consideration offered and given for the takeover bid is:
 (i)
    
    Equity Securities in JHINV; or(ii)
    
    on arms-length terms (regardless of the nature and source of funding or
consideration for the takeover bid);
 (e)
    
    JHINV becoming a Controlled Entity of an Excluded Related Entity;
 (f)
    
    payments by JHINV of ordinary dividends or provisions in relation thereto, provided that the
total dividends paid or provided for by JHINV in any period of two consecutive Financial Years
(the Dividend Period) (and ignoring payments to the extent previously provided for) is not
more than 75% of the aggregate Net Income in respect of the two Financial Years ending at the
end of the first Financial Year of the Dividend Period (and after deducting from the dividends
included in that calculation any dividends to the extent such dividends are reinvested in any
member of the JHINV Group or are replaced pursuant to an underwritten dividend reinvestment
plan or equivalent program);
 (g)
    
    if, at the time of implementation of the transaction Shares are Listed, any Capital
Management Transaction in relation to Equity Securities in JHINV where the sum of money paid
and valuable consideration provided by members of the JHINV Group to Equity Securityholders in
JHINV in respect of the Capital Management Transaction and all other transactions falling
within this clause 7.2(g) which occurred or were announced within the period of 36 months
prior to the date on which the transaction is first announced does not exceed 15% of the
Market Capitalisation of JHINV determined as at the date such transaction is first announced
(and where a Capital Management Transaction (such as a buyback scheme) is announced but is not
fully given effect to at the time a further Capital Management Transaction is announced, only
the Capital Management Transactions implemented under that scheme to that date shall be taken
into account, but any further utilisation of that scheme shall be treated as a new Capital
Management Transaction which will be deemed to be announced on the date of its
implementation);
 (h)
    
    any issue of Equity Securities in JHINV (whether to JHINV Equity Securityholders or to other
persons);
 (i)
    
    any issue of bonds, notes or other unsecured debentures, excluding Hybrids, made by any
member of the JHINV Group on arms-length terms;




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66 
 (j)
    
    while Shares are Quoted, any issue by a JHINV Group member of Hybrids on arms-length terms;
 (k)
    
    any Capital Management Transaction (which, for the avoidance of any doubt, does not include
any ordinary dividend) in relation to Equity Securities in JHINV to the extent the sum of
money to be paid and the value of other consideration to be provided to Equity Securityholders
as part of that Capital Management Transaction and other previous transactions under this
clause 7.2(k) does not exceed the amount of capital raised as a result of issuing Equity
Securities in JHINV after the date of this deed to Persons outside the JHINV Group (excluding
any capital raised in respect of which JHINV has given a Notice of Capital Election under
clause 7.8(b) or which has been included in SRC or has been deducted from ED for the
purposes of determining QCR under clause 7.8(f));(l)
    
    a transaction (or, if relevant, that part of a transaction) that consists of:
 (i)
    
    a Person becoming a Parent Entity or a Sibling Entity where the Person is an
Excluded Related Entity or where each of JHINV and the Parent Entity or the Sibling
Entity, as the case may be, have complied with clause 7.7but nothing in this clause
7.2(l)(i) exempts any Distribution or Capital Management Transaction which would not
otherwise be exempt under another provision of clause 7.2; or(ii)
    
    a transaction or dealing between JHINV and any Sibling Entity (or their
respective wholly-owned subsidiaries), where each of JHINV and the Sibling Entity have
complied with clause 7.7and the Sibling Entity has acceded to this deed and the
relevant Related Agreements;
 (m)
    
    any transaction or dealing where the number determined by the following formula (the
Valuation Ratio) is equal to or greater than 2.75, on:
 (i)
    
    where the transaction or dealing is publicly announced, the trading day prior
to the date it is first publicly announced; or(ii)
    
    otherwise, the trading day prior to the day on which JHINV approves the entry
into a legally binding commitment to undertake the transaction:
 VR=
    
    (MC x QCR) + TCE  (VAVL+P)TCE  (VA  VL + P)
  VR




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##### 



67 MC
 A.
    
    in the case of a cash Equity Distribution, the amount declared or payable;B.
    
    in the case of a non-cash Equity Distribution, the market value of the Equity
Distribution effected or to be effected under the transaction or dealing, less any
consideration payable to the JHINV Group in return for the Equity Distribution; andC.
    
    in all other cases, the consideration payable by the JHINV Group with respect
to the transaction less the consideration receivable by the JHINV Group with respect to
the transaction,
 clause 7.2 clause 7.1(b)
 QCR
 TCE
 VA
 VL VA
 P
 (n)
    
    any transaction which occurs pursuant to a composition or compromise plan which has been duly
approved by creditors of JHINV in accordance with applicable law in connection with a
Reconstruction Event to which clause 10applies and any transaction following a Wind-Up Event
which transaction has been duly approved by the liquidator of JHINV; or
 (o)
    
    the making of a Capital Election or the related Capital Raising.
 clause 7.2 clause 7.2




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68 clause 7.3 clause 7.2
 7.3 Covenant not to undertake prejudicial Specified Dealings
 clauses 7.2 7.6
 (a)
    
    materially adversely affect the priority (whether under statute, security or otherwise) as
between the Trustee and Equity Securityholders to a surplus of the Liable Group after payments
to the Lenders and other creditors having a right of priority of payment over the Trustee
(whether under statute, security or otherwise) as if such surplus were to be notionally
allocated between those entitled thereto but without assuming that a Wind-Up or Reconstruction
Amount is then payable; or
 (b)
    
    materially impair the legal or financial capacity of the Liable Group (assessed by reference
to the whole Liable Group and not merely one or some Liable Group members),
  7.4 Application of clause 7.3
 (a)
    
    Specified Dealings to which clause 7.5applies are to be aggregated in accordance with clause
7.5before applying clause 7.3in respect of the most recent Specified Dealing (and without
affecting the application of this clause 7in relation to any earlier Specified Dealing).
 (b)
    
    Where a Specified Dealing:
 (i)
    
    is not exempt under clause 7.2from the operation of clause 7.3; and(ii)
    
    impairs the legal or financial capacity of the Liable Group to perform the
Relevant Obligations but that impairment is not itself material,
 clause 7.3 clause 7. 4(b)




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##### 



69 clause 7.2 clause 7.3 clause 7.4
 (c)
    
    Where an assessment under clause 7.3requires consideration of the likely level of Annual
Contribution Amounts or likely future Free Cash Flow after the relevant Specified Dealing
takes effect, that assessment is to be made by reference to:
 (i)
    
    the Annual Actuarial Report most recently received prior to the date of the
assessment, and not to further actuarial assessments of the liabilities of the Liable
Entities; and(ii)
    
    the likely effect of the Specified Dealing on the likely future Free Cash
Flow of JHINV, comparing the position that would be or is expected to arise if the
Specified Dealing had, or had not, occurred, and to the extent that assumptions are
required to be made in assessing that likely effect, having regard only to assumptions
that are reasonable.
 7.5 Aggregation of Certain Specified Dealings
 clause 7.4(a)
 (a)
    
    are entered into by any one or more members of the JHINV Group with the same party or with
parties associated with or acting in concert with one another; or
 (b)
    
    together lead to one or more material parts of the JHINV Groups activities or business
(taken as a whole) ceasing to be owned or controlled by a member of the JHINV Group; or
 (c)
    
    are proposed to the JHINV Equity Securityholders as related Specified Dealings or for
consideration at one or more general meetings to be held within a period of 90 days.
 clause 7.5 clause 7.3
 7.6 Excluded transactions
 (a)
    
    A Specified Dealing will not be regarded as being undertaken, made, permitted or caused to
occur contrary to clause 7.3if:
 (i)
    
    prior to it occurring, JHINV gives a Notice to the NSW Government setting out
that JHINV is seeking to apply this clause 7.6and containing:




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70 
 A.
    
    reasonable details of the relevant Specified Dealing in writing
together with a written report of an Independent Valuation Expert stating that
in the opinion of that expert clause 7.3would not be contravened by that
Specified Dealing occurring and setting out a reasoned statement by the expert
as to why the expert holds that opinion; andB.
    
    the information, calculations and documents, which were
provided by or on behalf of members of the JHINV Group to the Independent
Valuation Expert; andC.
    
    a statement that the JHINV Boards consider that the Specified
Dealing will not contravene clause 7.3; and (ii) the NSW Government does not
within the period of 30 days after JHINV has complied with clause 7.6(b) (or if
clause 7.6(d) applies, the further period described in that clause) (the
Review Period), give Notice to JHINV stating that in its opinion it is
satisfied that clause 7.3would be contravened by the Specified Dealing
occurring and giving its reasons for holding that opinion.
 (b)
    
    From the time a Notice of the kind described in clause 7.6(a)(i) is given by JHINV, JHINV
shall make available to the NSW Government and its advisers the Independent Valuation Expert
on reasonable notice during normal working hours to answer questions regarding the opinion and
underlying reasons of the Independent Valuation Expert. The NSW Government shall undertake,
and shall procure that any advisers appointed by it for the purposes of this clause 7.6
undertake, to keep all of such information confidential on the basis that clause 23of this
deed applies in respect of such information.
 (c)
    
    Where the NSW Government acting with reasonable diligence identifies that the information
provided to it under clause 7.6(b) does not provide a sufficient basis for an informed opinion
as to whether a Specified Dealing breaches clause 7.3, the NSW Government may, by Notice to
JHINV, request such further information from JHINV or the Independent Valuation Expert as is
reasonably necessary to form such an opinion and the Review Period will automatically be
extended by a reasonable period (not exceeding 30 days) after receipt by the NSW Government of
such information.
 (d)
    
    Where the NSW Government acting reasonably determines that the Review Period is insufficient
to review the information provided to it under clause 7.6(b) or 7.6(c) in order to form an
opinion as to whether a Specified Dealing breaches clause 7.3, the NSW Government may, by
Notice to JHINV, extend the Review Period by such further period as is reasonably required to
review such information (but in any event such further period shall not exceed a period of 60
days). Without limiting the foregoing, it shall be reasonable for the Review Period to be
extended under this clause 7.6(d) if the Review Period is insufficient for the NSW Government
to engage as expeditiously as possible (but having regard to required due process) any
external advisers from which it




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71 
 considers it necessary or appropriate to obtain advice with respect to its opinion and the
proposed Specified Dealing.(e)
    
    Any opinion given by the NSW Government under this clause 7.6shall not result in clause 7.3
being rendered inapplicable to a Specified Dealing if the information provided or made
available to the Independent Valuation Expert or the NSW Government under this clause 7.6,
contained any material misstatement of fact or any material omission.(f)
    
    Without prejudice to JHINVs obligations under clause 7.6(b), JHINV must pay the reasonable
costs of the NSW Government (including the reasonable cost of advisers) of any review by the
NSW Government of a proposed Specified Dealing under this clause 7.6.
 7.7 Mandatory accession
 (a)
    
    The remaining provisions of this clause 7.7have no application in relation to:
 (i)
    
    an Excluded Related Entity;(ii)
    
    a Person becoming a Sibling Entity where:
 A.
    
    clause 7.3is not breached by its creation;B.
    
    both the Sibling Entity and JHINV are Listed following its
creation; andC.
    
    none of the securities of the Sibling Entity are stapled to any
securities of JHINV at or around the time the Person becomes a Sibling Entity;
or
 (iii)
    
    a Person becoming a Sibling Entity where the Valuation Ratio (as applied to
JHINV but excluding the Sibling Entity) immediately after that Person becoming a
Sibling Entity is not less than 2.75.
 clause 7.7
 (b)
    
    JHINV agrees that to the extent within its power or control, it will procure that each Person
who becomes or who will upon implementation of a transaction become a Parent Entity promptly
enters into a deed of accession under which it becomes bound to observe all of the obligations
of JHINV under this deed and the JHINV Guarantee (in each case as if all references to JHINV
were a reference to the Parent Entity). Subject to clause 7.7(f) and 7.7(g) JHINV shall remain
bound by its obligations under this deed and the JHINV Guarantee.




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72 
 (c)
    
    JHINV agrees that to the extent within its power or control, it will procure that a Person
who becomes or who will upon implementation of a transaction become a Sibling Entity enters
into a deed on terms equivalent (other than differences of the kind contemplated in and agreed
between JHINV and the NSW Government pursuant to clause 7.7(d)), to those in this deed under
which it agrees to be bound by obligations equivalent to those of JHINV under this deed, the
JHINV Guarantee and each other Related Agreement to which JHINV is a party, but applied on the
basis that a reference to JHINV is a reference to that Person and on the basis that a
reference to the Performing Subsidiary is to a subsidiary of that Person which also enters
into that deed and agrees to the same obligations as apply to the Performing Subsidiary under
this deed and JHINV shall remain bound by its obligations under this deed and the Related
Agreements.
 (d)
    
    Where a Person is to become a Sibling Entity and clause 7.7(c) applies, JHINV and the NSW
Government shall negotiate in good faith such changes to this deed and the Related Agreements
as are necessary to reflect the division of obligations under this deed between two separate
and distinct groups and such that the Trustee is not worse off (other than de minimis
detriments) as a consequence of that Person becoming a Sibling Entity.
 (e)
    
    Where a Person described in clauses 7.7(b) or (c)executes an accession deed or other deed
under those clauses, JHINV must procure the delivery of an opinion of a recognised expert
independent legal counsel practising in the place of incorporation of the Parent Entity or the
Sibling Entity, or other independent legal counsel reasonably satisfactory to the NSW
Government, to the effect that all deeds of accession (or if applicable any other agreements
or other instruments effecting such accession) are enforceable in accordance with their terms
to no material extent less than this deed would have been enforceable against JHINV.
 (f)
    
    If an accession deed has been delivered by the Parent Entity referred to in clause 7.7(b) and
the financial position of the Liable Group after substituting the Parent Entity for JHINV
would be substantially the same or better than the position of the Liable Group prior to that
substitution and all material consents and conditions referred to in the legal opinion given
under clause 7.7(e) have been given or satisfied, then the Parties must, on request by Notice
from JHINV, execute a deed of release in favour of JHINV releasing it from all obligations
under this deed and the Related Agreements to which it is a party, within 15 Business Days of
receipt of such Notice from JHINV.
 clause 7.7(b)
 (i)
    
    this deed shall apply as if references to JHINV were to the Parent Entity;




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73 (ii)
    
    if the Parent Entity is not the immediate holding company of JHINV, it shall
procure the immediate holding company to enter into a deed of guarantee on terms
equivalent to the JHINV Guarantee;(iii)
    
    subject to clause 7.7(f), JHINV shall be jointly and severally liable with the
Parent Entity to perform the obligations of the Parent Entity under this Deed;(iv)
    
    for the purposes of clause 7.8, the Parent Entity shall be deemed to have
completed a Capital Raising at the time of the Parent Entitys accession to this deed
and may make a Capital Election in relation to that Capital Raising. In such a case the
definitions in clause 7.8shall be applied as follows:
 QCR
 MV
 ED
 SRC
 PQCR




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74 (v)
    
    any discharge of any obligation (whether under this deed or under a guarantee
or other Related Agreement) by any of the Parent Entity, the immediate holding company
of JHINV or JHINV shall comprise full performance and discharge by the other persons
just described of that (or their equivalent) obligation); and(vi)
    
    for so long as JHINV remains a wholly owned subsidiary of the Parent Entity,
the Close Group of JHINV shall include members of the Close Group of the Parent Entity.
 (h)
    
    Without prejudice to the obligations of JHINV under clause 7.7(b) if a Person becomes a
Parent Entity which is the ultimate holding company of JHINV and clause 7.7(b) applies in
respect of that Parent Entity but it does not enter into an accession deed under that clause,
on and from the time at which that Person becomes a Parent Entity:
 (i)
    
    the definition of JHINVs Free Cash Flow shall be the Free Cash Flow of the
Parent Entity; and(ii)
    
    for the purposes of clause 7.8, JHINV shall be deemed to have completed a
Capital Raising at the time that the Parent Entity became the Parent Entity and may
make a Capital Election in relation to that Capital Raising. In such a case the
definitions in clause 7.8 shall be applied as follows:QCRmeans the Qualifying Capital Ratio to apply to JHINV.MVmeans the Market Capitalisation of JHINV immediately prior to the announcement of
transaction by which the Parent Entity is to become the Parent Entity.EDmeans the amount of ED which would have applied in a calculation of QCR for JHINV
after taking into account the sum of all Equity Distributions paid or payable to the
Equity Securityholders of JHINV in connection with the transaction or transactions
under which the relevant Person becomes a Parent Entity (other than such Equity
Distributions which occurred prior to the announcement of the transaction by which
the Parent Entity is to become the Parent Entity).SRCmeans the sum of the Market Capitalisation of the Parent Entity immediately
prior to the announcement of the transaction by which the Parent Entity is to become
the Parent Entity (less the sum of the amount (if any) which is double counted in
the Market Capitalisation of the Parent Entity and MV and the amount of all Equity
Distributions made or declared by the Parent Entity between the time of the
announcement of the transaction by which the Parent Entity is to become the Parent
Entity and the time at which the Parent Entity becomes the Parent Entity) and any
new capital raised in connection with the transactions




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75 under which the Person becomes the Parent Entity (other than such capital which was
raised prior to the announcement of the transaction by which the Parent Entity is to
become the Parent Entity).PQCRmeans the QCR which applied to JHINV immediately prior to the announcement of
the transaction by which the Parent Entity is to become the Parent Entity.
 (i)
    
    Without prejudice to the obligations of JHINV under clause 7.7(c), if a Person becomes a
Sibling Entity and clause 7.7(c) applies in respect of that Sibling Entity but it does not
enter into an accession deed under that clause, on and from the time at which that Person
becomes a Sibling Entity:
 (i)
    
    the definition of JHINVs Free Cash Flow shall comprise the sum of (A) the
Free Cash Flow of JHINV (excluding any Free Cash Flow arising from JHINVs ownership of
the Sibling Entity) and (B) the Free Cash Flow of the Sibling Entity multiplied by the
proportion of the higher of the Equity Securities and voting shares in the Sibling
Entity held in aggregate by JHINV Equity Securityholders and members of the JHINV Group
as at the time at which that Person became a Sibling Entity; and(ii)
    
    for the purposes of clause 7.8, JHINV shall be deemed to have completed a
Capital Raising at the time the Sibling Entity became a Sibling Entity and may make a
Capital Election in relation to that Capital Raising. In such a case the definitions in
clause 7.8shall be applied as follows:QCRmeans the Qualifying Capital Ratio to apply to JHINV.MVmeans the Market Capitalisation of JHINV immediately prior to the announcement of
the transaction by which the Sibling Entity is to become a Sibling Entity.EDmeans the amount of ED which would have applied in a calculation of QCR for JHINV
after taking into account the sum of all Equity Distributions paid or payable to the
Equity Securityholders of JHINV in connection with the transaction or transactions
under which the Sibling Entity becomes a Sibling Entity (other than Equity
Distributions that occurred prior to the announcement of the transaction by which
the Sibling Entity is to become a Sibling Entity).SRCmeans the sum of (A) the sum of the Market Capitalisation of the Sibling Entity
(less the sum of the amount (if any) which is double counted in the Market
Capitalisation of the Sibling Entity and MV and the amount of all Equity
Distributions made or declared by the Sibling Entity between the time of the
announcement of the transaction by which the Sibling Entity is to become a Sibling
Entity and the time at which the Sibling Entity becomes a Sibling Entity) and new
capital raised by the Sibling Entity in connection with the transactions under




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76 which the Person becomes a Sibling Entity (other than such capital which was raised
prior to the announcement of the transaction by which the Sibling Entity is to
become a Sibling Entity), such sum multiplied by the proportion of the higher of the
Equity Securities and voting shares in the Sibling Entity held in aggregate by JHINV
Equity Securityholders and members of the JHINV Group as at the time at which that
Person becomes a Sibling Entity and (B) new capital raised by JHINV (other than such
capital which was raised prior to the announcement of the transaction by which the
Sibling Entity is to become a Sibling Entity).PQCRmeans the QCR which applied to JHINV immediately prior to the announcement of
the transaction under which the Sibling Entity is to become a Sibling Entity.
 7.8 Capital Election
 (a)
    
    The following definitions apply in and solely for the purposes of this clause 7.8and clauses
7.2(k), (m)and (o), and for the purpose of defining the Qualifying Capital Ratio (as referred
to in clause 9.3):Capital Electionhas the meaning given to it in clause 7.8(b).Capital Raisingmeans the issue of Equity Securities in JHINV:
 (i)
    
    in a single transaction (whether underwritten or not) where the payment of
subscription moneys for those Equity Securities is made within 12 months of the
commencement of the transaction (and if such payment occurs after a period of 12
months, the capital raised after that time shall be deemed for the purposes of this
clause 7.8to comprise a separate Capital Raising commencing on the first day after
that 12-month period); or(ii)
    
    as all or part of the consideration for an acquisition by a member of the JHINV
Group of an asset, business or entity or a merger of JHINV with a Person other than a
member of the JHINV Group.
 Capital Raising Announcement
 Capital Raising Completion Date
 (i)
    
    under paragraph (i) of the definition of Capital Raising, the earlier of the
date on which the Capital Raising is completed and 12 months after the Capital Raising
Announcement; and(ii)
    
    under paragraph (ii) of the definition of Capital Raising, the last date on
which the relevant JHINV Group member may issue Equity Securities as consideration for
the relevant acquisition or merger.




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77 
 Capital Ratio Period clause 7.8(g)
 (i)
    
    commencing on the first day of the first Financial Year commencing after the
Capital Raising Completion Date of that Capital Raising (First Year); and(ii)
    
    ending on the last day of the Financial Year in which the Capital Raising
Completion Date for the next Capital Raising for which a Capital Election has been made
occurs.
 Qualifying Capital Ratio clause 7.8(e) (f),
(g), (h) (i)
 (b)
    
    If, while the Shares are Quoted, JHINV proposes to raise capital under a Capital Raising of
an amount greater than 5% of the Market Capitalisation of JHINV as at the trading day
immediately prior to the Capital Raising Announcement, JHINV may elect to apply the provisions
of this clause 7.8in respect of all but not some of that capital by giving a Notice in
accordance with clause 7.8(c) (Capital Election).(c)
    
    A Notice by JHINV of a Capital Election:
 (i)
    
    must be given to the Trustee and the NSW Government within 15 Business Days
after the Capital Raising Announcement;(ii)
    
    applies in relation to all and not some of the capital to be raised under the
Capital Raising;(iii)
    
    shall annex a copy of the Capital Raising Announcement and specify the
material terms of the proposed Capital Raising, including the amount to be raised and
where applicable, the minimum and/or maximum amounts to be raised (provided that any
failure to satisfy this subparagraph (iii) shall not invalidate the Capital Election);
and(iv)
    
    may not be withdrawn or revoked once given unless the Capital Raising is not
completed, in which case the Capital Election shall be automatically deemed for all
purposes not to have been made.
 (d)
    
    If JHINV has given a Notice under clause 7.8(c) in respect of a Capital Election and the
relevant Capital Raising has been completed, JHINV must give a Notice to the Trustee and the
NSW Government within 15 Business Days after the Capital Raising Completion Date to which that
Capital Election relates, specifying the total amount of capital raised under that Capital
Raising.
 (e)
    
    If no Capital Raising has ever occurred for which a Capital Election has been made, the
Qualifying Capital Ratio shall be 1.




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78 
 (f)
    
    Subject to clauses 7.8(e), (g), (h)and (i), the Qualifying Capital Ratio to apply during a
Capital Ratio Period will be calculated in accordance with the formula:
 QCR =
    ( MV + ED )
    
    x PQCR( (MV + SRC) )
  QCR
 MV
 ED
 (a)
    
    nil, where the Valuation Ratio (assessed by reference to the trading day
described in MV) as adjusted by clause 9.14(c) is equal to or greater than 2.75; or(b)
    
    in any other case, the greater of zero and the sum of the following
Distributions and Capital Management Transactions, provided each occurred while the
Valuation Ratio was below 2.75:
 (i)
    
    that part of each Distribution made during the Previous Period
which when made exceeded the limit described in clause 7.2(f) and which did not
fall within clause 7.2(k); and(ii)
    
    that part of each Capital Management Transaction during the
Previous Period which did not fall within clause 7.2(k),
 clause 7. 8(i)
 SRC
 (a)
    
    the capital raised under the Capital Raising for which the Capital Election
was made; and(b)
    
    the total amount of capital raised under Capital Raisings since the first day
of the Previous Period for which Capital Elections were not made (where JHINV elects
by Notice under clause 7.8(i) that such amounts should be included in the calculation
of SRC) less capital which has been returned or cancelled since the first day of the
Previous Period;
 PQCR




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##### 



79 Previous Period
 (a)
    
    the first Capital Raising occurring after the date of this deed for which a
Capital Election has been made, the period commencing on 1 April 2005 and ending on the
last day of the Financial Year in which the Capital Raising Completion Date in respect
of that Capital Raising falls; and(b)
    
    for each subsequent Capital Raising for which a Capital Election has been made,
the period:
 (i)
    
    commencing immediately after the last applicable Previous
Period; and(ii)
    
    ending on the last day of the Financial Year in which the
Capital Raising Completion Date in respect of that Capital Raising falls;
 (g)
    
    If there is more than one Capital Raising which is subject to a Capital Election and is
completed in any Financial Year (Relevant FY), there will be only one Capital Ratio Period
for all of those Capital Raisings and the Qualifying Capital Ratio for that Capital Ratio
Period will be as calculated in respect of the last such Capital Raising Completion Date on
the basis of the following amended definitions for clause 7.8(f):
 (i)
    
    MVmeans the Market Capitalisation of JHINV as at the trading day immediately
prior to the first Capital Raising Announcement in the Relevant FY; and(ii)
    
    SRCmeans the sum of the total amount of capital raised in respect of each
Capital Raising for which a Capital Election has been made completed in the Relevant FY
and the total amount of capital raised since the first day of the Previous Period in
respect of which a Capital Election has not been made but excluding all such capital
which has been returned or cancelled.
 (h)
    
    Notwithstanding clause 7.8(f), the Qualifying Capital Ratio to be applied to the Free Cash
Flow Amount for the purposes of determining the Annual Payment pursuant to clause 9.3cannot
increase as a result of the making of a Capital Election in respect of a Capital Raising. If
such a result would otherwise arise from the making of a Capital Election under clause 7.8(b),
the Qualifying Capital Ratio shall remain unchanged for all purposes and the Capital Election
shall be automatically deemed for all purposes not to have been made.
 (i)
    
    In calculating ED and SRC under clause 7.8(f) where paragraph (a) of the definition of ED
does not apply, all Capital Raisings completed during the Previous Period will be deducted
from the amount of ED under paragraph (b) of the definition of ED unless and to the extent
that JHINV has irrevocably elected by Notice to the NSW Government that some or all of such
capital is to be included in the definition of SRC.




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80 
 7.9 Notice of certain Specified Dealings
 clause 7.2
 8 SCOPE OF OBLIGATIONS
 8.1 Application of funds
  (a)
    
    the monies and other assets provided to the Trustee (including the JHINV Contributions) may
only be applied in the payment of SPF Funded Liabilities; and
 (b)
    
    such monies and other assets are not to be applied to satisfy any other creditors of the
Trustee or of the Liable Entities or of the JHINV Group.
 8.2 Excluded Claims
  (a)
    
    this deed and the Transaction Legislation seek to address, within the limits set out in this
deed (including but without limitation the limits set out in clause 9) the funding for payment
of SPF Funded Liabilities and the handling of Payable Liabilities; and
 (b)
    
    nothing in this deed requires or shall require JHINV, the Performing Subsidiary or any other
member of the JHINV Group to provide any funding for payment of any of the following
liabilities of the Liable Entities (together, the Excluded Claims):
 (i)
    
    personal injury or death claims arising from exposure to Asbestos outside
Australia;(ii)
    
    personal injury or death claims arising from exposure to Asbestos made outside
Australia;(iii)
    
    claims for economic loss (other than any economic loss forming part of the
calculation of an award of damages for personal injury or death) or loss of property,
including those relating to land remediation and/or Asbestos or Asbestos products
removal, arising out of or in connection with Asbestos or Asbestos products
manufactured, sold, distributed or used by or on behalf of the Liable Entities;(iv)
    
    any Excluded Marlew Claim;




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##### 



81 (v)
    
    any liabilities of the Liable Entities other than SPF Funded Liabilities.
 9 FUNDING ARRANGEMENTS
 9.1 Funding Agreement
  9.2 Initial funding (including Additional Payment)
 clause 2.7, Initial Funding
 (a)
    
    $248.1 million, being the sum of the following amounts:
 (i)
    
    the Period Actuarial Estimate for the nine months ending 31 March 2006, being
$54.0 million;(ii)
    
    plus the Period Actuarial Estimate for the Financial Year ending 31 March 2007,
being $81.3 million;(iii)
    
    plus the Period Actuarial Estimate for the Financial Year ending 31 March
2008, being $83.5 million;(iv)
    
    plus an amount equal to the estimated reasonable Operating Expenses of the
Trustee and the Liable Entities for the nine months to 31 March 2006, being $6.9
million;(v)
    
    plus a prepayment (the Additional Payment) equal to $22.4 million; and
 (b)
    
    minus the value of the net assets of the Liable Entities as at 30 June 2005 determined in
accordance with clause 9.10and by any amounts (other than by way of loan) received by the
Trustee or a Liable Entity from any member of the JHINV Group between 1 July 2005 and the
Commencement Date (whether under clause 17or otherwise).
 9.3 Annual payment
 (a)
    
    Subject to clause 9.3(b) and clauses 9.7and 9.11, on each Payment Date, the Performing
Subsidiary must pay to the Trustee an amount equal to the lesser of:




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82 
 (i)
    
    the Annual Contribution Amount for that Payment Date plus, for the first
Payment Date after the Commencement Date, $7.7 million; and(ii)
    
    whichever is the greater of:
 (A)
    
    the amount equal to the Free Cash Flow Amount for that Payment
Date multiplied by the Qualifying Capital Ratio applicable at that time; and(B)
    
    zero,
  (b)
    
    If the amount calculated under clause 9.3(a) in respect of a Payment Date (as adjusted by
clause 9.14(b)) is a negative amount and JHINV Notifies the Trustee that this clause 9.3(b)
should apply, on that Payment Date the Trustee must pay the absolute value of that negative
amount to the Performing Subsidiary or to such other entity nominated by the Performing
Subsidiary.
 9.4 Annual Contribution Amount and adjustments thereto
  (i)
    
    the Period Actuarial Estimate, as set out in the Annual Actuarial Report for
the period commencing immediately after the end of the Financial Year preceding the
Payment Date (the Prior Financial Year) (that is, while each Financial Year ends on
31 March, this period will commence on the 1st of April preceding the
relevant Payment Date) and ending at the end of the third Financial Year following the
Prior Financial Year (or, if the end of the Term has been determined not to be extended
under clause 9.9(b) and the remainder of the Term is less than 3 years, to the end of
the Term);(ii)
    
    plus an amount equal to the estimated reasonable Operating Expenses of the
Trustee and the Liable Entities for the first year of that period as reasonably
determined by the Trustee; and(iii)
    
    minus the value of the net assets held by the Trustee and the Liable Entities
at the end of the Prior Financial Year as determined by the Approved Auditor, in
accordance with clause 9.10but subject to clauses 9.14(a)and 13.4.
 (b)
    
    If, for any reason, the Annual Contribution Amount, or the Free Cash Flow Amount required to
be calculated under clause 9.5or certified under clause 5.16in respect of any Payment Date
cannot be determined at least 5 Business Days before the Payment Date then:




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83 
 (i)
    
    if the Annual Contribution Amount is unknown, the Trustee must use its best
endeavours to procure the Approved Actuary to determine, prior to the Payment Date, a
reasonable estimate of the Annual Contribution Amount with respect to that Payment Date
(failing which, such estimate shall be calculated by reference to the previously
published Actuarial Report and the most recently published financial statements of
JHINV or the Liable Entities or Trustee as applicable);(ii)
    
    if the Free Cash Flow Amount is unknown, JHINV must use its best endeavours to
procure the JHINV Auditor to determine, prior to the Payment Date, a reasonable
estimate of the Free Cash Flow Amount with respect to that Payment Date, having regard
to the most recent Audited Financial Statements;(iii)
    
    the estimate of the relevant Annual Payment payable under clause 9.3shall be
determined having regard to the estimate or estimates, as the case may be, referred to
in clauses 9.4(b)(i) and (ii), and shall be paid by the Performing Subsidiary on the
relevant Payment Date;(iv)
    
    if the amount determined under clause 9.4(b)(iii) is a negative amount, the
Trustee must pay an amount equal to the absolute value of that amount (that is,
disregarding the fact that it is a negative amount) to the Performing Subsidiary or to
such other entity nominated by the Performing Subsidiary on the relevant Payment Date;(v)
    
    the Trustee shall (if applicable) as soon as reasonably possible, use best
endeavours to procure that the Annual Actuarial Report is finalised and that JHINV and
the NSW Government are provided with a copy of the relevant Annual Actuarial Report and
are notified of the Annual Contribution Amount within 30 days after the relevant
Payment Date;(vi)
    
    JHINV shall (if applicable) as soon as reasonably possible, use best endeavours
to procure that the certification of the Free Cash Flow Amount in accordance with
clause 5.16is finalised and that the Trustee and the NSW Government are provided with
a certificate within 30 days after the relevant Payment Date;(vii)
    
    if applicable, but subject to clauses 9.5 and 9.6, the Performing Subsidiary
or the Trustee (as the case requires) shall make a payment or an adjusting payment (as
the case requires) so as to ensure that the Trustee has obtained (and has obtained no
more or less than) the full amount due under clause 9.3. Any payment or adjusting
payment made under this clause 9.4(b)(vii) shall be paid together with interest from
the Payment Date until the date the payment or the adjusting payment is made, at the
Interest Rate, such payment or adjusting payment to be made in any event within 10
Business Days of the finalised Annual Actuarial Report, the Annual Contribution Amount
and the Free Cash Flow Amount being Notified to the Trustee and JHINV; and




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84 (viii)
    
    if the JHINV Auditor or Approved Actuary (as the case may be) is unable or unwilling
to provide the estimate referred to in paragraphs (i) or (ii), JHINV or the Trustee
(as applicable) shall fully disclose to the other Parties the reasons known to them for
such inability or unwillingness and clause 5.16shall apply in relation to any failure
to obtain an audit certificate.
 9.5 Free Cash Flow Amount
 (a)
    
    Subject to clauses 9.5(b), (c)and (d), the Free Cash Flow Amount in respect of any Payment
Date shall be an amount equal to the percentage (determined in accordance with clause 9.6) of
the Free Cash Flow in the immediately preceding Financial Year as certified by the JHINV
Auditor. JHINV shall use its best endeavours to provide a copy of that certificate to the
Trustee and the NSW Government by no later than 5 Business Days prior to the Payment Date.
 (b)
    
    In calculating the Free Cash Flow Amount in respect of the Payment Date falling on 1 July
2006, the Free Cash Flow for the Financial Year ending on 31 March 2006 shall be an amount
equal to the Free Cash Flow for that Financial Year plus each of the amounts referred to in
clauses 9.2(a)(i), (a)(ii)and (a)(v)and less the amount set out in clause 9.2(b).
 (c)
    
    In calculating the Free Cash Flow Amount in respect of the Payment Date falling on 1 July
2007, the Free Cash Flow for the Financial Year ending on 31 March 2007 shall be an amount
equal to the Free Cash Flow for that Financial Year less $14.7 million.
 (d)
    
    In calculating the Free Cash Flow Amount in respect of the Payment Date falling on 1 July
2008, the Free Cash Flow for the Financial Year ending on 31 March 2008 shall be an amount
equal to the Free Cash Flow for that Financial Year less $7.7 million.(e)
    
    The Free Cash Flow Amount shall be converted to Australian dollars by reference to:
 (i)
    
    where that amount is reported in US dollars, it shall be translated at the spot
Australian dollar / US dollar exchange rate (for purchasing AUD) shown on the Bloomberg
AUD/USD currency Bid-Quote page as at 10am (Sydney time) on the date falling 5 Business
Days prior to the relevant Payment Date;(ii)
    
    where that amount is reported in another currency other than US dollars, it
shall be translated at the spot Australian dollar/relevant foreign currency exchange
rate (for purchasing AUD) shown on the equivalent Bloomberg AUD/foreign currency
Bid-Quote page at the same time and date as described in paragraph (i) above; and(iii)
    
    if Bloomberg does not quote such exchange rates, by reference to the rate
described above shown on an online bid quotation system




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##### 



85 equivalent to Bloomberg at the time and the day described in paragraph (i) above.
 9.6 Percentage of Free Cash Flow
 Schedule 3
 9.7 Payment Options
 (a)
    
    Where the Performing Subsidiary gives Notice to the Trustee (with a copy to the NSW
Government) not less than 10 Business Days before a Payment Date that it wishes to do so, it
may:
 (i)
    
    make Annual Payments in relation to one or more specified Financial Years of
(or for) the remainder of the Term by equal instalments at intervals of either 3 or 6
months (as specified in that Notice) commencing on that Payment Date, provided that all
instalments in respect of a Financial Year must, however, become payable by the last
Business Day of that Financial Year; and(ii)
    
    prepay an amount at any time, whether or not a Funding Payment amount has at
that time been calculated. Where a prepayment is made pursuant to this clause 9.7,
clause 9.14shall apply.
 clause 9. 2(a)(v) clause 9.7
 (b)
    
    If the Performing Subsidiary gives Notice under clause 9.7(a)(i), it must compensate the
Trustee for the interest forgone by the Trustee arising from the later receipt of such Annual
Payment by instalments, at the Interest Rate for the period during which a payment is deferred
as a result of the operation of clause 9.7(a). Such interest shall accrue from day to day and
shall be paid together with the payment of the relevant instalment.
 (c)
    
    The Performing Subsidiary may by Notice to the Trustee (with a copy to the NSW Government)
given not less than 10 Business Days before the commencement of a Financial Year, revoke or
vary a Notice given under clause 9.7(a) but that Notice may only affect payments in Financial
Years commencing after the date that the Notice is given.(d)
    
    For the avoidance of doubt, the Initial Funding may not be paid in instalments.
 9.8 Notification of payments




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86 (a)
    
    the amount of the payment;(b)
    
    details of calculations of the amount;(c)
    
    the provision of this deed under which it is to be made;(d)
    
    the date on which it is to be made; and(e)
    
    provided it is available, a copy of the certificate of the JHINV Auditor procured under
clause 9.5.
 9.9 End of Term
 (a)
    
    JHINV may (but is not obliged) by Notice to the remaining Parties at least 18 months prior to
the end of the Term, elect to procure that a Final Payment calculation is made as follows:
 (i)
    
    the Approved Actuary must provide an actuarial report ( the End of Term
Actuarial Report) setting out its estimate of the final payment which would be
required to be made by the Performing Subsidiary having regard to the principles set
out in this clause 9.9(the Final Payment);(ii)
    
    the Final Payment will be determined having regard inter alia to the following
factors:
 (A)
    
    that it represents a final payment to be made by the
Performing Subsidiary with respect to SPF Funded Liabilities;(B)
    
    that it is a lump sum payment;(C)
    
    that the value of the assets of the Trustee and the Liable
Entities (including Insurance and Other Recoveries and any other amounts
expected to be recoverable after the Final Payment) must reduce the amount of
the Final Payment; and(D)
    
    to the extent applicable, the method of calculating the
Discounted Central Estimate is in accordance with clause 14.4; and
 (iii)
    
    the Approved Actuary will employ the generally accepted best practice
methodologies and assumptions relevant at that time to the determination of that
valuation and having regard to the purpose of calculating a Final Payment to be made to
the Trustee; and
 (b)
    
    If the Parties (in their absolute discretion) by the end of the Term have not agreed on the
Final Payment and the terms on which a Final Payment would be made at the end of the Term or
if JHINV has not given Notice under clause 9.9(a), then the Term will be automatically
extended by a period of 10 years.




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87 
 This clause 9.9shall have further applications at the end of the
Term as extended pursuant to any prior application of this clause
9.9.9.10
    Assets and Liabilities of Liable Entities
 clause 9.2(b) 9.4(a)(iii)
 (a)
    
    for the purposes of clause 9.2(b), an amount equal to the sum of:
 (i)
    
    $94.2 million; and(ii)
    
    any amounts (other than by way of loan) received by the Trustee or a Liable
Entity from any member of the JHINV Group between 1 July 2005 and the Commencement Date
(whether under clause 17or otherwise).
 (b)
    
    for the purposes of clause 9.4(a)(iii) for each Financial Year:
 (i)
    
    the total assets of the Trustee and the Liable Entities as at the end of that
Financial Year (including, for the avoidance of doubt, any amounts by way of Insurance
and Other Recoveries determined in accordance with clause 9.13(a) and properly
recognised in the accounts as assets in accordance with relevant accounting standards);
less(ii)
    
    the liabilities of the Trustee and the Liable Entities as at the end of that
Financial Year,
 clause 9.10(b)
 9.11 Commutation
  (a)
    
    another Person undertakes or Persons enter into a deed undertaking those obligations or other
obligations satisfactory to the NSW Government in its absolute discretion; or
 (b)
    
    the Performing Subsidiary or other member of the JHINV Group makes or procures the making of
a lump sum payment or payments to the Trustee, subject to the Parties (in their absolute
discretion) reaching agreement on satisfactory arrangements designed to provide a reasonably
high degree of




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88 
   9.12 Preparation of Audited Financial Statements
 clause 9.12
 9.13 Calculation of Insurance and Other Recoveries
 (a)
    
    Subject to clause 9.13(b), for the purposes of calculation of the Initial Funding and each
Annual Contribution Amount under this deed, the amount calculated as Insurance and Other
Recoveries shall include only such recoveries as the Approved Auditor considers on reasonable
grounds are, according to law, payable to the Liable Entities during the period of 12 months
following the end of the Prior Financial Year (as defined in clause 9.4(a)(i) in relation to
that Annual Contribution Amount) or, in the case of the Initial Funding, during the 9 month
period ending on 31 March 2006. For the avoidance of doubt, this restriction shall not
affect the calculation of Insurance and Other Recoveries when calculating the Term Central
Estimate or the Discounted Central Estimate (as applicable) which shall be calculated by
reference to the period to which the relevant definition relates.(b)
    
    For the purposes of this deed, where the Approved Actuary considers on reasonable grounds
that an amount calculated as Insurance and Other Recoveries under this deed would otherwise
be overstated due to a present or expected liability of a Liable Entity to make all or part of
that amount available to non-Australian claimants or claimants for contribution against the
Liable Entity, and such amounts would be recoverable by those claimants, the Approved Actuary
shall be required to adjust the relevant Insurance and Other Recoveries calculation so as to
take into account the likely effect of such liabilities.
 9.14 Prepayments
 clause 9.7(a)(ii)
 (a)
    
    the amount of the prepayment shall be excluded from the net assets of the Trustee for the
purposes of calculating an Annual Contribution Amount, unless the Valuation Ratio as at the
last day of the Financial Year preceding the relevant Payment Date exceeded 2.75;
 (b)
    
    amounts prepaid are not refundable and cannot cause the amount calculated under clause 9.3(a)
to be negative;




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89 
 (c)
    
    for all purposes (including Schedule 3) the Free Cash Flow in the year of prepayment and in
each subsequent year shall be deemed to be the Free Cash Flow that would have applied if the
prepayment or prepayments had not been made and payments were made when due in the absence of
any prepayment or prepayments;
 (d)
    
    for the purposes of Schedule 3, each Annual Contribution Amount for the year of prepayment
and in each subsequent year shall be deemed to be the Annual Contribution Amount that would
have applied if the prepayment or prepayments had not been made and payments were made when
due in the absence of any prepayment or prepayments; and
 (e)
    
    in calculating the Valuation Ratio referred to in paragraph (a) of the definition of ED in
clause 7.8(f), no prepayment or prepayments can render ED equal to nil.
 9.15 Rationing arrangements
  (a)
    
    the available assets of the Trustee, including as a result of payments made under this deed
and earnings on Fund assets from time to time, may or may not be sufficient to meet in full
all Operating Expenses, Proven Claims, Claims Legal Costs and other SPF Funded Liabilities as
and when they fall due for payment;
 (b)
    
    if the Trustee considers that it is reasonably likely that it does not or will not have
sufficient funds to pay the amounts described in clause 9.15(a) as and when they fall due for
payment, it may become necessary, in accordance with Division 5 of Part 4 of the Transaction
Legislation, for the Trustee to ration the timing or amount of payments made with respect to
Proven Claims or Payable Liabilities in order to achieve the foregoing;
 (c)
    
    if it is reasonably foreseeable that the available assets of the Trustee and the Liable
Entities from time to time (including without limitation the JHINV Contributions and earnings
of the Fund from time to time) are likely to be insufficient to fund the payment of all
reasonably foreseeable SPF Funded Liabilities:
 (i)
    
    the Trustee may Notify the NSW Government and JHINV that the circumstances
described in this clause 9.15(c) are reasonably foreseeable and provide reasonable
details of such circumstances and the prospective shortfall, and following the giving
of such a Notice, the Parties agree that for so long as the Trustee:
 (A)
    
    is seeking and thereafter engaging in or is ready, willing and
able to enter into and pursue bona fide discussions with the NSW Government and
JHINV in relation to a proposed scheme under




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90 
 section 35 of the Transaction Legislation (Rationing Scheme); or(B)
    
    is proceeding with reasonable expedition to design, prepare,
seek approval of the Minister for an application to the Court, approval of the
Court of and implement the Rationing Scheme,
 from the time such a Notice is given until such time as the Supreme Court of New
South Wales has made final orders in respect of the Rationing Scheme, the Trustee
may defer payment of Proven Claims in whole or in part if and to the extent the
Trustee has determined this to be reasonably immediately necessary (and prior to the
Rationing Scheme being approved by the Court) to avoid Persons with earlier Proven
Claims receiving greater proportionate payments than Persons with expected later
Proven Claims, provided that any such deferral shall accord with principles set out
in section 35(4) of the Transaction Legislation and provided further that the rights
of such Persons to payment of their Proven Claims shall not be prejudiced except to
the extent of such deferral and by the Rationing Scheme following approval by the
Court; and(ii)
    no member of the JHINV Group has or shall have any liability for such a
shortfall other than as expressly provided in this deed and none of the Parties shall
impose any liability on any member of the JHINV Group in respect of that shortfall but
nothing in this clause 9.15(c)(ii) shall relieve JHINV or the Performing Subsidiary
from any of their obligations under the Transaction Documentation.
 10 JHINV GUARANTEE AND WIND UP AND RECONSTRUCTION EVENTS
 10.1 JHINV Guarantee
 clause 1.4
 10.2 Calling of and payments under guarantee
 clause 16
 10.3 JHINV Wind Up Event or Reconstruction Event
 (a)
    
    If a Wind-Up Event of JHINV occurs, each of the Funding Obligations of the Performing
Subsidiary and the obligations of JHINV under the JHINV Guarantee will automatically
accelerate and crystallise on the following basis:




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91 
 (i)
    
    the Funding Obligations will become immediately due and payable by the
Performing Subsidiary and shall, to the extent permitted by law, be an amount equal to
the Wind Up or Reconstruction Amount determined in accordance with clause 10.4(a), and
comprise a specialty debt due immediately prior to the filing of the order that
resulted in the Wind-Up Event, occurring;(ii)
    
    the Guaranteed Obligations under the JHINV Guarantee will become immediately
due and payable in accordance with the terms of the JHINV Guarantee;
 (b)
    
    The Wind-Up or Reconstruction Amount may be proved in any proceedings following or in
connection with any Wind-Up Event in relation to JHINV and voted in relation to such
proceedings.
 (c)
    
    By Notice to JHINV, the NSW Government may at any time:
 (i)
    
    cause the Wind-Up or Reconstruction Amount to cease to be payable, and the
Funding Obligations and the Guaranteed Obligations to cease to be subject to an
acceleration and crystallisation under clause 10.3(a) in respect of one or more Wind-Up
Events; or(ii)
    
    direct that the acceleration and crystallisation provided for in clause 10.3(a)
to be deemed not to have occurred in respect of one or more Wind-Up Events.
 (d)
    
    The Wind-Up or Reconstruction Amount will cease to be payable, and the Funding Obligations
and the Guaranteed Obligations will cease to be subject to an acceleration and crystallisation
under this clause 10in respect of the relevant Wind Up Event if an order of the kind
described in the definition of Wind Up Event is made and is subsequently struck out,
dismissed, reversed or withdrawn and the time period for commencing any proceedings to review
such an order has expired (or any timely commenced proceedings for review of such an order,
have been concluded).
 (e)
    
    If a Reconstruction Event of JHINV occurs, each of the Funding Obligations of the Performing
Subsidiary and the obligations of JHINV under the JHINV Guarantee will automatically
accelerate and crystallise on the following basis, but subject to clauses 10.3(g)and (i):
 (i)
    
    the Funding Obligations will become immediately due and payable by the
Performing Subsidiary and shall be an amount equal to the Wind-Up or Reconstruction
Amount determined in accordance with clause 10.4(b), and comprise a specialty debt due
immediately prior to the Reconstruction Event;(ii)
    
    the Guaranteed Obligations under the JHINV Guarantee will become immediately
due and payable in accordance with the terms of the JHINV Guarantee.




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92 
 (f)
    
    The Wind Up or Reconstruction Amount may be voted and proved for the purposes of (or at) any
meeting or vote of creditors or similar proceedings relating to creditors following and in
relation to any Reconstruction Event in relation to JHINV, subject to clause 10.5.
 (g)
    
    The Wind-Up or Reconstruction Amount will immediately cease to be payable, and the Funding
Obligations and the Guaranteed Obligations will immediately cease to be subject to an
acceleration and crystallisation, and may no longer be voted or proved under this clause 10in
respect of the relevant Reconstruction Event if:
 (i)
    
    the order constituting the Reconstruction Event is entered or made (or deemed
to have been entered or made) and is subsequently struck out, dismissed, reversed,
withdrawn or otherwise comes to an end, provided that, if the Reconstruction Event is an event as described in paragraph (c) of the
definition of Reconstruction Event and the order was entered under Dutch law, JHINV emerges from
the Reconstruction Event without a Plan (as defined under clause 10.5) having been accepted by the
creditors and approved by the court and without being declared bankrupt;(ii)
    
    the meeting of creditors of the kind described in paragraph (a) or (d) that
constitutes the Reconstruction Event is convened and the meeting is held or is
cancelled or is otherwise vacated; or(iii)
    
    any vote of creditors due to occur following that Reconstruction Event (other than a Reconstruction
Event as described in paragraph (c) of the definition of Reconstruction Event and the order was
entered under Dutch law or occurring as a result of a voluntary case being commenced, or a final
order for relief being entered, under Chapter 11 of the US Bankruptcy Code) to determine any
compromise, plan or distribution occurs, is cancelled or is otherwise permanently vacated or
rendered invalid.
 (h)
    
    By Notice to JHINV, the NSW Government may at any time:
 (i)
    
    cause the Funding Obligations and the Guaranteed Obligations to cease to be
subject to an acceleration and crystallisation under clause 10.3(a) in respect of one
or more Reconstruction Events; or(ii)
    
    direct that the acceleration and crystallisation provided for in clause 10.3(a)
to be deemed not to have occurred in respect of one or more Reconstruction Events.
 (i)
    
    Each of the Trustee and the NSW Government:
 (i)
    
    subject to clause 10.3(j), covenant in favour of JHINV and the Performing
Subsidiary in respect of a Reconstruction Event that except for the purposes of
asserting a claim against JHINV or the Performing Subsidiary in a bankruptcy proceeding
or an insolvency proceeding relating to such Reconstruction Event, neither the Trustee
nor or the NSW Government shall commence, institute or continue proceedings in any
jurisdiction seeking the enforcement or recovery from JHINV or the Performing
Subsidiary of the Wind Up or Reconstruction Amount (whether under this deed or any
Related Agreement) relating to such




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93 Reconstruction Event or any part thereof, but nothing in this clause 10.3(i)(i)
shall prejudice the operation of any provision of this Deed which is enlivened by
the occurrence of a Wind Up Event; and(ii)
    
    acknowledge that JHINV has agreed to the terms of this clause 10in reliance on
the covenants described in this clause 10.3(i) and that compliance by both the Trustee
and the NSW Government is a fundamental condition to it having any rights under this
clause 10in respect of a Reconstruction Event.
 (j)
    
    Nothing in clause 10.3(i) shall restrict the Trustee or the NSW Government from:
 (i)
    
    voting or proving the Wind Up or Reconstruction Amount in accordance with and
subject to clause 10.3(f); or(ii)
    
    commencing or instituting proceedings in any jurisdiction in relation only to
the existence or amount of any Wind Up or Reconstruction Amount or any voting rights
attaching thereto, or any matters incidental to determining such amount or voting
rights.
 10.4 Calculation of Wind Up or Reconstruction Amount
 (a)
    
    Upon a Wind-Up Event or Reconstruction Event occurring in relation to JHINV, the Wind Up
Amount or Reconstruction Amount will be determined on the following basis:Wind Up Amount or Reconstruction Amount = TCE  C  (VA  VL + P)where:TCEhas the meaning given in clause 7.2(m) as set out in the most recent Annual Actuarial
Report published prior to the Wind Up Event or Reconstruction Event;VAhas the meaning given in clause 7.2(m);VLhas the meaning given in clause 7.2(m);Phas the meaning given in clause 7.2(m).Cequals the amount determined in accordance with the following provisions:
 (i)
    
    notwithstanding anything herein to the contrary, C shall equal zero:
 (A)
    
    upon and following a Wind-Up Event; or(B)
    
    if:




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94 
 I.
    
    JHINV commences a bankruptcy proceeding made
under the US Bankruptcy Code which results in the occurrence of a
Reconstruction Event; andII.
    
    the determination of the amount of the
Trustees claim is required in order for the Trustee to prove or vote
that claimto permit the Trustee to participate in a vot of creditors;
andIII.
    
    JHINV fails to provide the information required
under clause 10.4(d) in time to permit such a determination to be made;
 (ii)
    
    in any other circumstance for the purposes of determining a Wind-Up or
Reconstruction Amount, C shall equal the amount by which TCE exceeds the present
value of all the Annual Payments that are then due or would become due pursuant to this
Principal Deed taking into account the operation of the Free Cash Flow cap under clause
9.3, having regard to the following:
 (A)
    
    C shall be calculated on the basis of the projected Free Cash
Flow of JHINV taking into account any projected changes in Free Cash Flow as a
result of implementing a proposed Plan (as defined in clause 10.5) arising
other than from debt to equity conversions by creditors of JHINV or new capital
raised by JHINV or any Reorganised Debtor (as defined in clause 10.5), and the
Qualifying Capital Ratio, in each case, immediately prior to the Reconstruction
Event discounted at a discount rate equal to the sum of:
 (i)
    
    the discount rate used in the calculation of
the TCE as published in the most recent Annual Actuarial Report, and(ii)
    
    5 percentage points (500 basis points); and
 (B)
    
    C shall be calculated recognizing that the Term is
automatically extended (unless the Parties in their absolute discretion agree
otherwise) under clause 9.9.
 (b)
    
    In determining the value of VA and VL the Trustee shall procure that the Approved Auditor
seeks appropriate expert advice from the Approved Actuary or otherwise as it considers
necessary, and the value of each of VA and VL shall be certified by the Approved Auditor;
 (c)
    
    The certification of the value of VA and VL by the Approved Auditor shall, if the NSW
Government so requires, be subject to review by the NSW Government Auditor in the manner set
out in clause 5.13;




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##### 



95 
 (d)
    
    If a Reconstruction Event occurs, JHINV must provide a Notice to the Approved Auditor (copied
to the NSW Government and the Trustee) setting out its projections of its Free Cash Flow and
its estimate of C and the basis on which such estimate has been calculated (but without
accepting liability for any errors or omissions in relation to the same) during the period for
which it is necessary to project the Free Cash Flow in determining the amount of C. The
Trustee or the NSW Government may, by election, require that an Independent Valuation Expert
determines the amount of C on the terms set out in clause 7.1(b), and in such event, such
terms shall apply in relation to the determination of such Independent Valuation Expert
despite the fact that such determination is not a determination under clause 7and in such a
case C shall be equal to the amount determined by the Independent Valuation Expert or if no
such Independent Valuation Expert is appointed within 10 Business Days of receipt of JHINVs
Notice under this clause 10.4(d), the estimate of C in that Notice.
 10.5 Voting
 Plan
 (a)
    
    JHINV or any entity (the Reorganised Debtor) which, pursuant to and upon the effective date
of a restructuring transaction (including a plan of reorganization confirmed under Chapter 11
of the U.S. Bankruptcy Code, but not a transaction approved by the court pursuant to Section
363 of the U.S. Bankruptcy Code) occurring in connection with a Reconstruction Event (i)
acquires or undertakes the whole or a substantial part of the business or assets of JHINV or
the JHINV Group, or (ii) consolidates, merges, or engages in another similar transaction with
JHINV or the JHINV Group as a part of the restructuring transaction occurring in connection
with a Reconstruction Event, would not be Insolvent;
 (b)
    
    the implementation of the Plan would not result in a Liquidation of JHINV or the Reorganised
Debtor;
 (c)
    
    the Principal Deed, the JHINV Guarantee and each other Related Agreement would continue to
bind all Parties to them (or in the case of a Reorganised Debtor of JHINV, thatReorganised
Debtor), save that any termination of the Intercreditor Deed shall not result in this
requirement failing to be satisfied; and
 (d)
    
    ignoring any effect of the Intercreditor Deed, the Plan would not operate so as to
discriminate between the claims of the Trustee and the claims of the Lenders adversely to the
claims of the Trustee.




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96 
 10.6 Consequence of a Plan
 clause 10.5
 (a)
    
    the obligations of JHINV and the Performing Subsidiary and the claims of the Trustee and the
NSW Government arising under this Deed and the Related Agreements (including without
limitation in respect of the Wind-Up or Reconstruction Amount) shall be dealt with in
accordance with the Plan; and
 (b)
    
    the Wind-Up or Reconstruction Amount will immediately cease to be payable, and the Funding
Obligations and the Guaranteed Obligations will immediately cease to be subject to an
acceleration and crystallisation, and may no longer be voted or proved under this clause 10in
respect of that Reconstruction Event.
 11 EFFICIENCIES
 11.1 Costs Review Inquiry
 (a)
    
    The Parties acknowledge that the Costs Review Inquiry Legislation commenced on 1 July 2005
and that the conditions precedent contemplated by clauses 3.2(a), 3.3(d) and (in respect of
the Costs Review Inquiry) 3.3(e) of the Heads of Agreement have been satisfied.
 (b)
    
    The NSW Government agrees to:
 (i)
    
    share the results of the Costs Review Inquiry with the Other Governments; and(ii)
    
    encourage the timely adoption by each Other Government of the results of the
Costs Review Inquiry to the extent appropriate in the case of the Courts and tribunals
of any Other Government which handles Claims; and(iii)
    
    undertake the review of the Costs Review Inquiry Legislation anticipated in
the Costs Review Inquiry Report within the time contemplated in that report.
 (c)
    
    While the NSW Government is not obliged to perform any of its obligations under clause
11.1(b) until on or after the Commencement Date, it may in its absolute discretion choose to
perform some or all of those obligations before the Commencement Date and such performance
will, on the occurrence of the Commencement Date, be taken to satisfy the relevant obligations
under clause 11.1(b).




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##### 



97 
 11.2 Acknowledgements
  (a)
    
    all Parties desire that the process for the management of Personal Asbestos Claims, Marlew
Claims and Claims Legal Costs is as efficient as possible, consistent with preserving
Claimants rights to compensation, and that they are committed to seeking to maintain an
efficient claims management process over time; and
 (b)
    
    an efficient process for the management of Personal Asbestos Claims, Marlew Claims and Claims
Legal Costs is important to the funding arrangements covered by this deed.
 11.3 Procedural Improvements Submissions
 (a)
    
    Either or both JHINV and the Trustee may from time to time make submissions to the NSW
Government regarding further changes which might be made to the processes of making,
processing and settling Personal Asbestos Claims, Marlew Claims and Claims Legal Costs
including the apportionment of damages and recovery of contributions and payment of damages
from third parties to make the same more economically and otherwise efficient.
 (b)
    
    The NSW Government agrees and undertakes:
 (i)
    
    to give timely and bona fide consideration to:
 A.
    
    submissions made under clause 11.3(a);andB.
    
    the adoption of the proposals set out in those submissions; and
 (ii)
    
    that in the event the NSW Government adopts any proposals the subject of a
submission under clause 11.3(a),the NSW Government shall share its information on
those proposals which are so adopted with the Other Governments, and use its reasonable
endeavours to encourage their timely adoption by each Other Government to the extent
appropriate in the case of the Courts and tribunals of that Other Government which
handle Claims.
 12 RELEASES
 12.1 Releases of the JHINV Group, Liable Entities and other Persons
 (a)
    
    The Parties acknowledge that upon the commencement of the Release Legislation, the NSW
Government will have used its best endeavours, subject to any limits on the legislative powers
of the State of New South Wales, to bring into force legislation effective under New South
Wales law to extinguish any civil liability of:




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##### 



98 
 (i)
    
    each member of the JHINV Group, each Liable Entity and each of their respective
present and past directors, officers, employees, advisors and agents (collectively, the
Released Persons) in respect of the Relevant Matters;(ii)
    
    Released Persons in respect of the entry by JHINV and the Performing Subsidiary
into this deed and the Related Agreements and their implementation by the JHINV Group,
and the circumstances giving rise to the same, but without prejudice to the obligations
of members of the JHINV Group to the parties to this deed or the Related Agreements
under, or in connection with negotiations leading to the entry by the parties into,
this deed or any Related Agreement; and(iii)
    
    any member of the JHINV Group or any Liable Entity for claims for economic
loss (not forming part of a personal injury claim or otherwise resulting from personal
injury) or loss of or damage to property, including those relating to land remediation
or Asbestos or Asbestos products removal, arising out of Asbestos or Asbestos products
manufactured, sold, distributed or used by or on behalf of the Liable Entities,
 and the NSW Government agrees, subject to the remainder of this clause 12, that it will not
introduce legislation (whether or not expressed to amend the Release Legislation or the
Transaction Legislation) which denies the JHINV Group the benefit of, or derogates from, the
releases and extinguishments set out in the Release
Legislation.(b)
    
    For the purposes of this clause 12, civil liability has its natural and ordinary meaning.(c)
    
    In addition to any rights arising in favour of the Released Persons under the Release
Legislation, the NSW Government must execute the NSW Government Deed of Release on or before
the Commencement Date.(d)
    
    JHINV agrees promptly to provide to any Released Person who so requested in writing, a
photocopy of a counterpart of the NSW Government Deed of Release duly executed by the NSW
Government.(e)
    
    Without prejudice to any right or remedy of the NSW Government, the Releases in respect of
Persons who are not natural persons may be suspended by the NSW Government whilever:
 (i)
    
    the Performing Subsidiary shall be and remains in breach of any obligation to
make a Funding Payment under this deed and such breach shall have remained unremedied
for not less than 3 months and remains unremedied; or;




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(ii)
    
    JHINV is in breach of clause 7 and that breach has not been rectified within a
reasonable period (of not less than 3 months) of JHINV having received a Notice under
clause 12.1(f); or(iii)
    
    JHINV is and remains in breach of clause 7and JHINV has not given a Notice to
the NSW Government under clause 7.9in respect of that breach, and the NSW Government
has given JHINV at least 30 days Notice that the suspension applies.
 (f)
    
    The NSW Government may give to JHINV Notice of any matter which JHINV has given it Notice
under clause 7.9which the NSW Government considers, acting reasonably, to constitute a breach
by JHINV of clause 7. For the avoidance of doubt, any Notice given by the NSW Government is
not proof that JHINV is in breach of clause 7and if the NSW Government having given notice,
purports to suspend then that suspension will not take effect. If a Notice is given in
circumstances where JHINV is in breach of clause 7and the relevant period referred to in
clause 12.1(e) has not expired, those Releases will not be suspended until the expiry of that
period.
 (g)
    
    The NSW Government must revoke the suspension of any release of liability suspended as a
result of any breach of a kind described in clause 12.1immediately upon JHINV remedying that
breach and Notifying the NSW Government demonstrating that such a breach has been remedied.
 12.2 No Admission
  12.3 Releases of ACTU, Unions NSW and Banton
  (a)
    
    the ACTU (and those unions affiliated to the ACTU);(b)
    
    Unions NSW (and those unions affiliated to Unions NSW);(c)
    
    the officers, members and employees of the ACTU (and its affiliated Unions) and Unions NSW
(and its affiliated unions); and(d)
    
    Banton,




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##### 



100 (e)
    
    the underfunding of the MRCF;(f)
    
    the Jackson Inquiry;(g)
    
    all Relevant Matters,
  13
    
    NO ADVERSE OR DISCRIMINATORY LEGISLATIVE OR REGULATORY ACTION AND DISCUSSIONS WITH OTHER
GOVERNMENTS
 13.1 Legislative or regulatory action
 (a)
    
    For the purposes of clause 13, legislative actionmeans the enactment, amendment or repeal of
any legislation, including without limitation the making, amendment or repeal of any
instrument, as defined in section 3(1) of the Interpretation Act 1987, which includes a
statutory rule, as defined in section 21 of the Interpretation Act1987 (NSW).(b)
    
    For the purposes of clause 13, regulatory actionmeans:
 (i)
    
    the exercise of statutory functions (being functions, powers, authorities and
duties conferred or imposed on any person or body by legislation); and(ii)
    
    the exercise by the NSW Government of the powers and functions described in
section 7 of the Australia Act 1986 (Cth) itself or by advising the Governor of New
South Wales to exercise such powers and functions,but excludes any action taken under and in accordance with the Transaction Legislation or
the Release Legislation.
 13.2
    
    No Adverse Legislative Action
 (a)
    
    Subject to the remaining provisions of this clause 13, the NSW Government undertakes to and
agrees with JHINV and the Performing Subsidiary that it will not undertake any adverse
legislative action directed at any member of the JHINV Group, the Trustee or any of the Liable
Entities in relation to any of the Relevant Matters or in relation to Asbestos Liabilities
(except that, for these purposes, Excluded Claims within the definition of Asbestos
Liabilities are limited to Excluded Claims relating to Asbestos).(b)
    
    Without limitation, legislative action shall be taken to be adverse if:
 (i)
    
    it denies to or in relation to any of the Trustee, any member of the JHINV
Group or any of the Liable Entities benefits or advantages which are provided or
available to others in similar circumstances; or




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##### 



101 (ii)
    
    it operates by reference to any of the Trustee, any member of the JHINV Group
or any of the Liable Entities, this Deed or any of the Related Agreements or an
attribute which only one or more of them possesses;(iii)
    
    it amends or repeals all or part of the Transaction Legislation or Release
Legislation in a manner which would adversely affect any member of the JHINV Group, the
Trustee or the Liable Entities, unless such amendment or repeal has been agreed in
advance in writing by JHINV acting reasonably;(iv)
    
    notwithstanding the fact that the legislative action may not on its face
contravene the provisions of this clause 13(for example because it applies generally),
having regard to the nature or circumstances of the legislative action, it would be
concluded that the purpose of the legislative action was or a material purpose of the
legislative action included having the effect of increasing any of the amounts that but
for such action would have been payable under this Deed or in respect of payments of the
liabilities to be funded hereunder and the legislative action has or will have the
result or effect of increasing any of such amounts.
 (c)
    
    Subject to clause 13.2(b)(iii) and also, in the case of clauses 13.2(c)(ii) and (iii),
subject to clause 13.2(b)(iv), legislative action:
 (i)
    
    in respect of the claims handling and determination process, including through
the Dust Diseases Tribunal;(ii)
    
    in respect of the handling, removal or disposal of Asbestos; or(iii)
    
    considered necessary to deal with the consequences of the manufacture and sale
of asbestos products,
 shall not be considered adverse to any member of the JHINV Group, the Trustee or the Liable
Entities under clauses 13.2(a) and (b)if it applies to former Asbestos manufacturers or
Asbestos defendants generally, irrespective of the fact that it might by reason of
circumstances have a greater impact on JHINV, the Trustee or the Liable Entities than on
other manufacturers or defendants, provided that, if clause 13.2(b)(iv) applies in relation
to actions referred to in clause 13.2(c)(i), the JHINV Group, the Trustee and the Liable
Entities do not suffer any material increase in Operating Expenses or Claims Legal Costs to
be borne by them as a result of such actions under clause 13.2(c)(i) (or any equivalent
actions under clause 13.3(c)(i)).
 (d)
    
    The obligations and undertakings of the NSW Government set out in clause 13.2(a) shall be
suspended whilever:
 (i)
    
    the Performing Subsidiary shall be and remains in breach of any obligation to
make a Funding Payment under this deed, and such




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##### 



102 breach shall have remained for not less than 3 months and remains unremedied; or(ii)
    
    JHINV is in breach of clause 7and that breach has not been remedied within a
reasonable period (of not less than 3 months) of JHINV having received a Notice under
clause 13.2(e) and such breach remains unremedied; or(iii)
    
    JHINV shall be and remains in breach of clause 7and JHINV has not given a
Notice to the NSW Government under clause 7.9in respect of that breach and the NSW
Government has given JHINV at least 30 days Notice that the suspension applies.
 (e)
    
    The NSW Government may notify JHINV of any matter of which JHINV has given it Notice under
clause 7.9which the NSW Government considers, acting reasonably, to constitute a breach by
JHINV of clause 7. For the avoidance of doubt, any notice given by the NSW Government is not
proof that JHINV is in breach of clause 7. If the NSW Government, having given Notice under
this clause 13.2(e), undertakes adverse legislative action in circumstances where JHINV is not
in breach of clause 7, then without limiting JHINVs other rights at common law or under this
Deed, that adverse legislative action will be in breach of clause 13.2.
 (f)
    
    Immediately upon any breach described in clause 13.2(d) being rectified and the NSW
Government having received Notice of such breach being rectified, the NSW Government shall not
take, and shall cease to take, any further adverse legislative action, provided that nothing
in this clause 13.2(f) requires the NSW Government to:
 (i)
    
    seek the repeal of legislation in force at the time such breach is rectified
(other than any legislation which was, when introduced, in breach of the provisions of
this deed); or(ii)
    
    take any executive or other action in breach of generally applicable protocols
of the NSW Government associated with bringing legislation into force.
 (g)
    
    The NSW Government acknowledges and agrees that:
 (i)
    
    damages for dust diseases compensation are determined by common law in New
South Wales;(ii)
    
    the NSW Government will not change the common law basis of assessment of
damages for dust diseases compensation; and(iii)
    
    accordingly, the NSW Government will not legislate to reduce or increase
damages for dust diseases.




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103 
 (h)
    
    The Parties acknowledge that this clause 13.2does not prevent the proper exercise by the NSW
Parliament of its legislative power, but that this clause 13.2(h) is without prejudice to the
right of any other Party or Parties to claim damages from the NSW Government in respect of any
breach by the NSW Government of its obligations under this clause 13.(i)
    
    The Parties acknowledge that this clause 13.2operates and is intended to operate
independently of clause 13.3.13.3
    
    No Adverse Regulatory Action(a)
    
    Subject to the remaining provisions of this clause 13, the NSW Government undertakes to and
agrees with JHINV and the Performing Subsidiary that it will not undertake any adverse
regulatory action directed at any member of the JHINV Group, the Trustee or any of the Liable
Entities in relation to any of the Relevant Matters or in relation to Asbestos Liabilities
(except that, for these purposes, Excluded Claims within the definition of Asbestos
Liabilities are limited to Excluded Claims relating to Asbestos).(b)
    
    Without limitation, regulatory action shall be taken to be adverse if:
 (i)
    
    it denies to or in relation to any of the Trustee, any member of the JHINV
Group or any of the Liable Entities benefits or advantages which are provided or
available to others in similar circumstances;(ii)
    
    it operates by reference to any of the Trustee, any member of the JHINV Group
or any of the Liable Entities, this Deed or any of the Related Agreements or an
attribute which only they possess; or(iii)
    
    notwithstanding the fact that the regulatory action may not on its face
contravene the provisions of this clause 13(for example because it applies generally),
having regard to the nature or circumstances of the regulatory action, it would be
concluded that the purpose of the regulatory action was or a material purpose of the
regulatory action included having the effect of increasing any of the amounts that but
for such action would have been payable under this deed or in respect of payments of
the liabilities to be funded hereunder and the regulatory action has or will have the
result or effect of increasing any such amounts.
 (c)
    
    Subject, in the case of clauses 13.3(c)(ii) and (iii), to clause 13.3(b)(iii),regulatory
action:
 (i)
    
    in respect of the claims handling and determination process, including through
the Dust Diseases Tribunal;(ii)
    
    in respect of the handling, removal or disposal of Asbestos; or




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##### 



104 (iii)
    
    considered necessary to deal with the consequences of the manufacture and sale
of asbestos products,
 shall not be considered adverse to any member of the JHINV Group, the Trustee or the Liable
Entities under clauses 13.3(a) and (b)if it applies to former Asbestos manufacturers or
Asbestos defendants generally, irrespective of the fact that it might by reason of
circumstances have a greater impact on JHINV, the Trustee or the Liable Entities than on
other manufacturers or defendants, provided that, if clause 13.3(b)(iii) applies in relation
to a matter referred to in clause 13.3(c)(i), the JHINV Group, the Trustee and the Liable
Entities do not suffer any material increase in Operating Expenses or Claims Legal Costs to
be borne by them as a result of such actions under clause 13.3(c)(i) (or any equivalent
actions under clause 13.2(c)(i)).
 (d)
    
    The obligations and undertakings of the NSW Government set out in clause 13.3(a) shall be
suspended whilever:
 (i)
    
    the Performing Subsidiary shall be and remains in breach of any obligation to
make a Funding Payment under this deed, and such breach shall have remained for not
less than 3 months and remains unremedied; or(ii)
    
    JHINV is in breach of clause 7and that breach has not been remedied within a
reasonable period (not less than 3 months) of JHINV having received a Notice under
clause 13.3(e) and such breach remains unremedied; or(iii)
    
    JHINV shall be and remains in breach of clause 7 and JHINV has not given a
Notice to the NSW Government under clause 7.9 in respect of that breach and the NSW
Government has given JHINV at least 30 days Notice that the suspension applies.
 (e)
    
    The NSW Government may notify JHINV of any matter of which JHINV has given it Notice under
clause 7.9which the NSW Government considers, acting reasonably, to constitute a breach by
JHINV of clause 7. For the avoidance of doubt, any notice given by the NSW Government is not
proof that JHINV is in breach of clause 7.If the NSW Government having given Notice under
this clause 13.3(e), undertakes adverse regulatory action in circumstances where JHINV is not
in breach of clause 7, then without limiting JHINVs other rights at common law or under this
Deed, that adverse regulatory action will be in breach of clause 13.3.(f)
    
    Immediately upon any breach described in clause 13.3(d) being rectified and the NSW
Government having received Notice of such breach being rectified, the NSW Government shall not
take, and shall cease to take, any further adverse regulatory action, provided that nothing in
this clause 13.3(f) requires the NSW Government to:




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##### 



105 
 (i)
    
    seek the repeal of legislation or any instrument in force at the time such
breach is rectified (other than any legislation or instrument which was, when
introduced, in breach of the provisions of this deed); or(ii)
    
    take any executive or other action in breach of generally applicable protocols
of the NSW Government associated with bringing legislation or instruments into force.
 (g)
    
    The Parties acknowledge that this clause 13.3operates and is intended to operate
independently of clause 13.2.13.4
    
    Other Governments
 (a)
    
    Subject to clause 13.7,this clause 13.4applies if:
 (i)
    
    an Other Government introduces a scheme (the Scheme) providing for payment of
compensation, or which provides benefits for which the common law would provide
compensation, to some or all Claimants (the Relevant Claimants) for what would, if
brought against a Liable Entity or a member of the JHINV Group, constitute Personal
Asbestos Claims (the Relevant Claims); and(ii)
    
    JHINV, another member of the JHINV Group, the Trustee or any Liable Entity is
required by law to make payments under the Scheme to the Relevant Claimants or to
contribute to a Person designated under the Scheme to receive payments on account of
liabilities imposed under the Scheme for the purpose of compensating the Relevant
Claimants for Relevant Claims (the Relevant Liabilities).
 (b)
    
    Subject to clause 13.7, clause 13.4(c)(i) shall also apply if an Other Government takes any
legislative or regulatory action which, had it been taken by the NSW Government, would have
resulted in the NSW Government breaching clause 13.2or 13.3and in such a case, then unless
clause 13.4(a) applies in respect of such action, such action shall be deemed to be a Scheme
to which clause 13.4(c)(i) applies and the Relevant Liabilities shall be the additional
liabilities incurred by members of the JHINV Group, the Trustee or the Liable Entities as a
result of such action, provided that such application of clause 13.4(c)(i) shall occur only
from the later of 6 months after the date JHINV shall have Notified the NSW Government of such
legislative or regulatory action by such other Government or the possibility or proposal that
such action (or some generally similar action) might or would be taken by such other
Government and the date and the time such application would have occurred but for this
proviso.
 (c)
    
    If this clause 13.4applies:
 (i)
    
    the payment obligations of the Performing Subsidiary and JHINV under this deed
and the Related Agreements shall be adjusted so as to ensure




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##### 



106 that the JHINV Groups present and future liabilities with respect to Personal
Asbestos Claims are not increased as a result of the Scheme as follows:
 (A)
    
    all payments of Relevant Liabilities made by a member of the
JHINV Group under the Scheme shall be treated as though they had been received
by the Trustee and had increased the net assets of the Trustee by that amount
(and earned income for each Financial Year at the discount rate published by
the Approved Actuary in the Annual Actuarial Report in relation to that
Financial Year); and(B)
    
    any Relevant Liabilities incurred but unpaid by the Liable
Entities or the Trustee under the Scheme shall be ignored in determining the
net assets of the Liable Entities and the Trustee and any payments of Relevant
Liabilities shall be added back to the net assets of the relevant Liable Entity
or the Trustee (as applicable) (as though the net assets were never reduced by
the amount of such payments).
 provided that, in the case of a Scheme described in clause 13.4(a)and (b), such
adjustments shall cease to be made when the arrangements contemplated in clause
13.4(c)(ii) are implemented (including that any amending legislation necessary to
give effect to that clause comes into full force); and(ii)
    
    the Parties agree to negotiate in good faith to make such modifications to the
terms of this deed and the Related Agreements (and the NSW Government agrees to use its
best endeavours to amend the Transaction Legislation and the Release Legislation) as
are reasonably necessary to ensure that the liability of the JHINV Group, the Trustee
and the Liable Entities in connection with Personal Asbestos Claims (having regard to
liabilities arising under the Transaction Documents and the Relevant Liabilities under
the Scheme) is not increased as a result of the implementation and operation of the
Scheme.
 (d)
    
    Without limiting clause 13.4(c), the Parties agree that:
 (i)
    
    the necessary modification to the Funding Obligations may be reflected in a
narrowing of the definition of Claimants under this deed or a deferral of payment of
Relevant Claims under the Transaction Legislation, which will cause an adjustment to
the Period Actuarial Estimate, the Term Central Estimate and the Discounted Central
Estimate; and(ii)
    
    a Relevant Claimant should not, by reason of the Scheme, recover or obtain full
compensation more than once for a Relevant Claim.




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##### 



107 
 (e)
    
    If JHINV, another member of the JHINV Group, the Trustee or any Liable Entity is not required
by law to make payments under the Scheme, but JHINV wishes to elect to make payments to the
Scheme either itself or through another member of the JHINV Group, the Trustee or any Liable
Entity, then:
 (i)
    
    the Parties agree to negotiate in good faith to determine what modifications
(if any) should be made to the terms of this deed, the Related Agreements, the
Transaction Legislation and the Release Legislation in respect of the funding
arrangements and the management of Personal Asbestos Claims to give appropriate
recognition to the Scheme of the Other Government and to reflect the fact that Relevant
Claimants will be compensated for Relevant Claims under the Scheme instead of under the
funding arrangements under this deed; and(ii)
    
    unless the Parties reach agreement on the modifications (if any) and those
modifications (including to the Transaction Legislation and the Release Legislation)
(if any) are made, no adjustment shall be made to the obligations of JHINV or the
Performing Subsidiary under this deed or any Related Agreement even if JHINV elects to
make payments under the Scheme.
 13.5
    
    Participation in discussions with Other Governments and regulators
  (a)
    
    participate with JHINV in discussions with either or both:
 (i)
    
    Other Governments; and(ii)
    
    the Australian Competition and Consumer Commission, the ASIC and other
regulatory bodies,
 in relation to matters arising out of the Jackson Inquiry; and
 (b)
    
    advocate action by the Other Governments or the regulatory bodies described in clause
13.5(a), consistent with the provisions of the Transaction Documentation.
 13.6 Referral of powers
  (a)
    
    ensure that the referral does not affect the Transaction Documentation;(b)
    
    ensure that the referral does not permit the Commonwealth to legislate in a manner
inconsistent with the Transaction Documentation; or




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##### 



108 (c)
    
    obtain JHINVs prior written agreement to the referral to the extent that it would not
conform to the requirements of clauses 13.6(a)or 13.6(b).13.7
    
    Limitations on Recoveries(a)
    
    For the purposes of this clause 13.7, Recoveries means any statutory entitlement of the NSW
Government or any Other Government or any governmental agency or authority of any such
government (Relevant Body) to impose liability on or to recover an amount or amounts from
any person in respect of any payments made or to be made or benefits provided by a Relevant
Body in respect of Personal Asbestos Claims or Marlew Claims (other than as a defendant or in
settlement of any claim, including a cross-claim or claim for contribution).(b)
    
    In consideration of JHINVs and the Performing Subsidiarys agreement to include the
liabilities described in this paragraph (b) within the scope of the funding arrangements set
out in this deed (but only to the limited extent provided for in this clause 13.7), the NSW
Government agrees to use its best endeavours to ensure, through the Transaction Legislation,
that the Liable Entities (or the Trustee on their behalf) cannot be compelled to pay (whether
paid directly to Relevant Bodies or as a component of amounts payable or liabilities incurred
in respect of Personal Asbestos Claims or Marlew Claims or to Concurrent Wrongdoers)
Recoveries which in aggregate exceed in any Financial Year the lesser of:
 (i)
    
    the amount equal to the liabilities of the Liable Entities to pay Recoveries as
calculated under the relevant statute(s) from time to time;(ii)
    
    for the first Financial Year of operation of the Fund, an amount equal to
$750,000 (Annual Limit) and in respect of each subsequent Financial Year, an amount
equal to the prior Financial Years Annual Limit, indexed for inflation or deflation by
reference to the All Groups Consumer Price Index as published by the Australian Bureau
of Statistics (or, if such statistic ceases to be published, the nearest equivalent
generally published figure);
 and further the aggregate of Recoveries paid by the Liable Entities (or the Trustee on their
behalf) over the Term of this deed (including any extension of the Term under clause 9.9of
this deed) shall not exceed $30 million.(c)
    
    Without limiting JHINVs or the Performing Subsidiarys rights under any other provision of
this deed, if any Liable Entity (or the Trustee on its own behalf or on behalf of a Liable
Entity) or any member of the JHINV Group is required to pay any amount in respect of
Recoveries which exceeds the amounts described in clause 13.7(b), the payment obligations of
the Performing Subsidiary and JHINV under this deed and the Related Agreements shall be
adjusted by the amount of the excess as though the excess were a payment of a Relevant
Liability under a Scheme to which clause 13.4applies.




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##### 



109 
 14
    
    ACTUARIAL ISSUES
 14.1
    
    Initial Report
  (a)
    
    JHINV engaged KPMG Actuaries to provide in the Initial Report, a calculation of the
Discounted Central Estimate of the liabilities of the Liable Entities to Claimants as at 30
June 2005;
  (c)
    
    the Initial Report clearly delineates the methodology and assumptions made for the purposes
of that calculation.
 (d)
    
    if the Commencement Date has not occurred by 30 April 2006, any Party may by Notice before
the Commencement Date, request that KPMG Actuaries consider a matter specified in the Notice
(being a matter listed in clause 14.2(b)) to consider whether in light of the specified matter
KPMG Actuaries wishes to amend the Initial Report under clause 14.2.
 14.2
    
    Initial Payment
 (a)
    
    The Parties acknowledge that the calculation of the Initial Funding amount set out in this
deed has been based upon the facts, assumptions and results set out in the Initial Report.
 (b)
    
    JHINV acknowledges that the terms on which it has engaged KPMG Actuaries have included terms
that if the Commencement Date has not commenced by 31 March 2006, KPMG Actuaries may, by
further report (Further Actuarial Report) amend the Initial Report at any time before the
Commencement Date by reason of the bona fide consideration by KPMG Actuaries of any of the
following:
 (i)
    
    new or additional information which has been provided to KPMG Actuaries and
which would cause KPMG Actuaries to update or amend the Initial Report; and(ii)
    
    actual experience.
 (c)
    
    Where KPMG Actuaries amends the Initial Report under clause 14.2(b), whichever of JHINV or
the Trustee has then engaged KPMG Actuaries must use its best endeavours to procure that KPMG
Actuaries promptly gives the Further Actuarial Report to the Parties.
 (d)
    
    Subject to clause 14.2(e), if the Parties are given a Further Actuarial Report in accordance
with clause 14.2(c), they must:




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110 
 (i)
    
    meet to consider whether the Further Actuarial Report indicates that the
Initial Funding or the Additional Payment remain an appropriate basis for the
establishment of the Fund; and(ii)
    
    negotiate in good faith to agree, if they agree that those payments and matters
are no longer appropriate, amendments to clause 9.2(and, to the extent those
amendments affect the amount of the Additional Payment, the amounts to be deducted
under clause 9.2) so that the Initial Funding will be appropriate on the basis of the
facts, assumptions and results set out in the Further Actuarial Report.
 (e)
    
    If a Further Actuarial report is prepared and the Commencement Date occurs before any
agreement is reached under clause 14.2(d), the Parties agree that the Initial Funding shall be
calculated by reference to the Initial Report and not the Further Actuarial Report and the
parties will negotiate in good faith to determine whether an adjustment payment in respect of
the Initial Funding should be made by the Performing Subsidiary or the Trustee and if so the
amount of such payment.
 14.3
    
    Liable Entities to assist
  (a)
    
    provide to the Approved Actuary data and other assistance requested by the Approved Actuary
to enable the Approved Actuary to prepare the Annual Actuarial Report for the period ending as
at the Financial Year End of each Financial Year within 20 days of the Financial Year End of
that year;(b)
    
    provide, if requested to do so, ongoing regular information to, amongst others, the Approved
Actuary in relation to the notification, payment and settlement of Claims and Claims Legal
Costs, and the assets available to meet Proven Claims, Claims Legal Costs and Operating
Expenses and other Payable Liabilities; and(c)
    
    provide access for the Approved Actuary to Persons relevant to the operations of the Trustee
and to Persons relevant to the operations of the Liable Entities, including, but not
restricted to, employees, executives, claims managers and advisers of the Trustee and the
Liable Entities.14.4
    
    Ongoing actuarial assessments(a)
    
    The Trustee will use its best endeavours to procure that the Approved Actuary prepares and
provides to the NSW Government an Annual Actuarial Report by the date which is 20 days prior
to each Payment Date. If the Approved Actuary is unavailable or unwilling to provide that
report, the Trustee must immediately disclose to the other Parties the reasons known to the
Trustee for such unavailability or unwillingness and must use its best endeavours to procure
that the report is delivered as soon as possible after that due date (and clause




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111 
 9. 4(b)
 (b)
    
    Each Annual Actuarial Report must set out:
 (i)
    
    the Discounted Central Estimate as at the end of the Financial Year ending
prior to the Payment Date;(ii)
    
    the Period Actuarial Estimate for the period commencing immediately after the
end of the Financial Year preceding the Payment Date (the Prior Financial Year) and
ending at the end of the third Financial Year following the Prior Financial Year (or,
if the end of the Term has been determined not to be extended under clause 9.9(b), and
the remainder of the Term is less than 3 years, to the end of the Term); and(iii)
    
    the Term Central Estimate for the period:
 (A)
    
    from and including the day following the end of the Financial
Year preceding that Payment Date;(B)
    
    up to and including the last day of the Term (excluding any
automatic or potential extension of the Term pursuant to clause 9.9, unless or
until the Term has been extended in accordance with that clause).
 (c)
    
    The Trustee must engage the Approved Actuary on terms that (and use its best endeavours to
procure that):
 (i)
    
    the Approved Actuary must undertake the calculations set out in clause 14.4(b)
and include these calculations in its Annual Actuarial Report;(ii)
    
    the Annual Actuarial Reports are prepared adopting methodologies and
assumptions which are consistent from year to year, subject to the need and duty to
update or vary such methodologies and assumptions where required to reflect generally
accepted best practice methodologies and assumptions appropriate at the relevant time,
to be clearly delineated consistent with determining a Discounted Central Estimate; and(iii)
    
    the Annual Actuarial Report complies with PS300 or subsequent applicable
Australian actuarial standards.
 14.5
    
    Review by NSW Government Reviewing Actuary
 (a)
    
    The NSW Government may from time to time appoint a NSW Government Reviewing Actuary to
conduct a peer review of the Initial Report or any one or more Annual Actuarial Reports or
Further Actuarial Report (not being a report given before the Initial Report and not more than
5 years before the date of appointment of the NSW Government Reviewing Actuary).




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112 
 (b)
    
    If after having made reasonable enquiries and assessment the NSW Government has not been able
to identify an actuary who meets all of the requirements set out in the definition of NSW
Government Reviewing Actuary in clause 1.1, the NSW Government shall notify the other Parties
of that fact and failing agreement between the Parties within 21 days as to an actuary
acceptable to all the Parties, the NSW Government shall promptly refer the matter to the
President of the Institute of Actuaries of Australia, who shall have the sole power to select
an available actuary who best meets those requirements to be the NSW Government Reviewing
Actuary. The NSW Government may appoint the actuary so selected or may elect not to appoint a
NSW Government Reviewing Actuary at that time.
 (c)
    
    Where the NSW Government proposes to make an appointment of a NSW Government Reviewing
Actuary under this clause 14.5, it must promptly give Notice to JHINV, the Trustee and the
Approved Actuary specifying:
 (i)
    
    the name and address of the proposed appointee;(ii)
    
    the basis on which the proposed appointee fulfils the requirements for such an
appointment as set out in the definition of NSW Government Reviewing Actuary in
clause 1.1.(iiii)
    
    the Initial Report, the Further Actuarial Report or the Annual Actuarial Reports to
be reviewed by the proposed appointee; and(iv)
    
    an outline of the scope and purpose of the independent review.
 14.6
    
    Access by NSW Government Reviewing Actuary
  (a)
    
    data;(b)
    
    results of modelling; and(c)
    
    all other assistance and information (including providing reasonable access to the working
papers of the Approved Actuary),
 clause 14.5 clause 14.6




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113  14.7
    
    NSW Government Reviewing Actuary Input
  (a)
    
    has reasonable grounds to disagree with, and in fact does not agree with, the information,
calculations, methodology or assumptions in any Annual Actuarial Report or the Further
Actuarial Report; and(b)
    
    considers that the disagreement is material,
  14.8
    
    Consideration of NSW Government Reviewing Actuarys Notice
 clause 14.7
 (a)
    
    to give the matters set out by the NSW Government bona fideconsideration and provide a
detailed response by Notice to the NSW Government (with copies to the Trustee, JHINV and the
Performing Subsidiary); and(b)
    
    where the Approved Actuary considers it is necessary or appropriate to do so, to revise and
reissue the most recent report on which the NSW Government Reviewing Actuary conducted its
review or recalculate the Discounted Central Estimate, Term Central Estimate or Period
Actuarial Estimate (as the case may be) as at the relevant Financial Year End upon the revised
assumptions and methodologies.14.9
    
    Revised Report by Approved Actuary(a)
    
    If the Trustee gives an instruction under clause 14.8and the Approved Actuary issues a
revised report, that report shall be in substitution for the relevant report under clause
14.4, and shall form the basis for calculating relevant amounts for the purposes of clauses 9
and 10for the relevant Financial Year.(b)
    
    Where an error or recalculation disclosed in the revised report of the Approved Actuary has
resulted in the Performing Subsidiary making an overpayment or




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114 underpayment to the Trustee, the Performing Subsidiary shall
promptly pay any amounts underpaid by it to the Trustee, or the
Trustee shall promptly reimburse the Performing Subsidiary for
any amount overpaid to it (as the case may be). Where the error
resulted in no payment having occurred, the Performing Subsidiary
shall promptly make the correct payment.14.10
    
    Actuarial Acknowledgments of Uncertainty
  (a)
    
    there is inherent uncertainty involved in the actuarial assessment of long tail liabilities
arising from exposure to Asbestos; and(b)
    
    the primary purpose in obtaining the Annual Actuarial Reports is:
 (i)
    
    to ascertain the Discounted Central Estimate, the Term Discounted Central
Estimate and Period Actuarial Estimates as at the end of the relevant Financial Year;
and(ii)
    
    not to determine the current amount that would need to be set aside in a closed
fund established at the end of the relevant Financial Year in order to ensure that all
Proven Claims would be paid in full without any further financial support to that fund.
 14.11
    
    Review of Draft Annual Actuarial Reports(a)
    
    The Trustee shall procure that the Approved Actuary provides to each of JHINV and the NSW
Government an advanced draft of each Annual Actuarial Report at least 10 Business Days prior
to that report being required to be finalised under this deed.(b)
    
    No later than 5 Business Days after receipt of a draft report under clause 14.11(a), JHINV or
the NSW Government may give Notice to the Trustee and the Approved Actuary with copies to the
other Parties, requesting that the Approved Actuary consider specified questions of fact
regarding the contents of the draft report.(c)
    
    The Trustee shall procure that the Approved Actuary considers in good faith any questions of
fact notified under clause 14.11(b) by JHINV or the NSW Government with respect to the draft
report.15
    
    FINANCIAL COVENANTS15.1
    
    Terms of Financial CovenantsJHINV covenants to the Trustee in terms of the Financial Covenants and warrants that these are
equivalent to those given by it as at the date of this deed to its Initial Lenders.




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115 15.2
    
    Changes to Financial Covenants
  15.3
    
    Information undertakings
  15.4
    
    Auditors Certificate
  (a)
    
    the financial statements for that year indicate that JHINV was on the last day of that
Financial Year in breach of any of the Financial Covenants; or
 (b)
    
    in the course of its audit of the accounts of JHINV for that Financial Year, it became aware
of any information that showed that JHINV was, on the last day of that Financial Year, in
breach of any of the Financial Covenants and if it is aware of any such information, the JHINV
Auditor must specify the nature and period of the existence of any breach.
 15.5 Consents under the equivalent Financial Covenants




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116 15.6 Warranty on Absence of Cross Guarantees
  (a)
    
    to obtain relief under ASIC Class Order 98/1418 for wholly owned subsidiaries from preparing
audited financial statements (or any class order amending, replacing or superseding such
order); and
 (b)
    
    Australian Tax Office tax consolidation requirements imposed by virtue of Part 3-90 of the
Income Tax Assessment Act 1997(Cth).
 15.7
    
    Future Cross Guarantees
  (a)
    
    the relevant Controlled Entity gives in favour of the Trustee a cross guarantee subordinated
to the Cross Guarantee given to the Lender (but otherwise on equivalent terms); and
 (b)
    
    that such cross guarantee remains in force for as long as the Lenders Cross Guarantee
remains in force.
 15.8
    
    Warranty and Covenant in relation to JHINV liabilities
  (a)
    
    creditors, provisions and indemnities incidental to its activities as a holding company
without a material operating business, and
    clause 15.6
  clauses 15. 8(a) (f)




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117 15.9 Reporting under Intercreditor Deeds
  16
    
    DEFAULT16.1
    
    Notifications of Default(a)
    
    JHINV, the Performing Subsidiary and, to the extent it becomes aware of the following, upon
becoming so aware, the Trustee must immediately give Notice complying with clause 16.1(b) to
the Trustee and the NSW Government where there is:
 (i)
    
    a failure by the Performing Subsidiary to make any Funding Payment at the time
required;(ii)
    
    a failure by JHINV to make any payment required by the JHINV Guarantee at the
time required; or(iii)
    
    any other failure, breach or default by JHINV or the Performing Subsidiary
under this deed or any Related Agreement of which they become aware.
 clause 16. 1(a)
 (i)
    
    the failure, breach or other default of which Notice is given; and(ii)
    
    material particulars of that failure, breach or other default.
 16.2
    
    Special Default of JHINV or Performing Subsidiary
  (a)
    
    the Performing Subsidiary fails to make a payment when due under clause 9and such payment is
not made within three months of a Notice of default being given to JHINV by the NSW Government
or by the Trustee; or
 (b)
    
    JHINV breaches its obligations under clause 7of this deed and JHINV does not remedy the
breach within three months and Notice of the default has been given to JHINV by the NSW
Government or the Trustee,




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118 16.3
    
    Consequences of Special Default of JHINV or Performing Subsidiary
 (a)
    
    Without prejudice to clause 10, if a Special Default occurs, there is no acceleration of the
obligations of any member of the JHINV Group to the Trustee, but, without limiting any other
remedy that may be available to the Trustee or the NSW Government during the currency of a
Special Default, no member of the JHINV Group shall be entitled to declare or pay any Equity
Distributions to Equity Securityholders of JHINV.
 (b)
    
    If a Special Default occurs, or an Insolvency Event in relation to JHINV occurs, and so long
as that Special Default or Insolvency Event remains in existence, and the NSW Government gives
to JHINV a Notice that this clause 16.3(b) is to apply:
 (i)
    
    the quorum for a Trustee Board meeting will be two Directors appointed by the
NSW Government;(ii)
    
    the total number of votes that may be cast at any Trustee Board meeting by the
Directors (including the Chairman) appointed by JHINV or one of its subsidiaries
present at the meeting shall be one less than the number of votes that may be cast by
the number of Directors appointed by the NSW Government present at that meeting; and(iii)
    
    the Trustee Board shall be constituted so that the majority of Directors shall
have been appointed by the NSW Government, and:
 (A)
    
    the NSW Government may appoint further Directors so that the
foregoing is achieved, and the Chairman (and remove any such appointees); and(B)
    
    JHINV shall procure the resignation of the requisite number of
Directors appointed by JHINV so that the foregoing is achieved.
 16.4
    
    Remedy of Special Default of JHINV or Performing Subsidiary
 clause 16. 3(b) clause 16. 3(b)(iii)
 (a)
    
    the NSW Government must immediately give Notice to the Trustee under clause 5.3removing, and
procure the resignation of, the Directors that it appointed as a result of that Special
Default or Insolvency Event; and
 (b)
    
    JHINV may appoint replacement directors under clause 5.2such that the majority of Directors
are then appointed by JHINV.




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119 
 16.5
    
    Other breaches, including by the NSW Government or the Trustee
 (a)
    
    If any Party to this deed becomes aware that it has breached any of the terms of this deed
(other than breaches which comprise Special Defaults), then that party must immediately give
each other Party to this deed a Notice setting out full details of the breach and its expected
impact on its future compliance with its obligations arising under this deed.
 (b)
    
    If a Party to this deed becomes aware that any other Party has breached any of the terms of
this deed (other than breaches which comprise Special Defaults), it may give that other Party
Notice of the breach.
 (c)
    
    The Party in breach which gives or receives a Notice under clause 16.5(a)or (b)shall have a
reasonable period after the first such Notice to rectify the breach, except where the breach
is incapable of remedy and the other Parties shall not take action in relation to such breach
until such period has expired.
 (d)
    
    For the avoidance of doubt, this clause 16.5does not require the giving of Notice or any
other act before clause 10applies in accordance with its terms.
 (e)
    
    The absence of express termination rights in this deed shall not derogate from or qualify the
common law termination rights of each Party (if any), which are expressly (and are intended to
be) preserved in full, save that:
 (i)
    
    JHINV cannot terminate this Deed or any Related Agreement for any default or
breach committed by the Trustee whilever directors appointed by JHINV to the Trustee
Board are entitled to exercise a majority of the votes of that Board;(ii)
    
    the NSW Government cannot terminate this Deed or any Related Agreement for any
default or breach committed by the Trustee whilever the quorum and voting arrangements
described in clause 16.3(b) apply; and(iii)
    
    termination by the NSW Government in respect of a default by JHINV (and vice
versa) shall operate to terminate this deed as between all of the Parties to it; and(iv)
    
    the Trustee can only terminate this Deed where permitted to do so under the
terms of the Trust Deed.
 16.6 NSW Governments right and power to enforce
 (a)
    
    Subject to clause 16.6(c),the NSW Government shall be entitled directly to enforce all
promises made by JHINV and the Performing Subsidiary to the Trustee under clauses 6, 9, 10,
15.1and 15.7of this deed, under each Related Agreement to which the Trustee is a party and
each Cross-Guarantee given in favour of the Trustee by any Controlled Entity of JHINV, in each
case, to the full extent permitted by law provided that:




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120 
 (i)
    
    in relation to clause 9and without prejudice to the operation of clause 10,
neither the Trustee nor the NSW Government may exercise any such enforcement right
(other than urgent interlocutory relief as described in and subject to the provisions
of clause 16.6(c)(iv)(B)below) in respect of a default by the Performing Subsidiary in
paying the Annual Payment (or any instalment thereof) under clause 9for a period of 40
days from the date when such Annual Payment (or any instalment thereof) was due if:
 A.
    
    the Performing Subsidiary or JHINV has immediately provided to
the NSW Government reasons for the default and such reasons are reasonable in
the circumstances;B.
    
    JHINV has promptly after that due date entered into and
continued to pursue or been ready, willing and able to enter into and pursue
discussions with the NSW Government and (if available) the Trustee to remedy
that default and provides to the NSW Government and the Trustee material
particulars of the default and the proposed remedy or remedies;C.
    
    JHINV is not and does not become Insolvent at any time during
that period; andD.
    
    subject to clause 10, a Reconstruction Event does not occur at
any time during that period.
 provided that such period shall automatically expire upon any of the requirements in
sub-paragraphs (A) to (D) inclusive (Moratorium Requirements) ceasing to be
satisfied; and(ii)
    
    if all of the Moratorium Requirements remain satisfied at the expiry of the
above 40 day period and, in the opinion of the NSW Government (acting reasonably),
there is a reasonable prospect of JHINV or the Performing Subsidiary paying the
outstanding amount within a further period of 50 days, the initial 40 day period shall
be extended by a further 50 days, save that such period shall automatically expire upon
any of the Moratorium Requirements ceasing to be satisfied.
 (b)
    
    Subject to clause 16.6(c), the NSW Government shall have the power directly to enforce as an
attorney of the Trustee under the Irrevocable Power of Attorney and on behalf of the Trustee
all promises made by JHINV and the Performing Subsidiary to the Trustee under clauses 6, 9,
10, 15.1and 15.7of this Deed, under each Related Agreement to which the Trustee is a party
and each Cross-Guarantee given in favour of the Trustee by any Controlled Entity of JHINV,
provided that such power may only be exercised or enforced subject to the same requirements
applicable to the NSW Governments direct enforcement entitlements contained in clauses
16.6(a)(i) and (ii). The NSW Government and the Trustee covenant that they will not amend or
replace the




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121 Irrevocable Power of Attorney without the prior written consent of JHINV, not to be
unreasonably withheld.
 (c)
    
    Prior to taking any action to exercise any of the foregoing powers of enforcement (Action):
 (i)
    
    the NSW Government shall Notify the Trustee of the Action the NSW Government
would propose to take and the reasons why such Action is required or appropriate;(ii)
    
    the Trustee may by Notice to the NSW Government within 3 Business Days of
receipt by the Trustee of the Notice described in clause 16.6(c)(i) indicate its views
on the NSW Governments proposed Action, including whether the Trustee has any
objection to such proposed Action, and shall provide its reasons for such views and any
objection by the Trustee to such proposed Action (including without limitation any
course of action the Trustee might propose to take in response to the NSW Governments
proposal);(iii)
    
    the NSW Government must give proper and bona fideconsideration to the views
and any objection by the Trustee set out in the Trustees Notice described in clause
16.6(c)(ii), and subject to the Trustee Board being promptly available for such a
meeting, meet with the Trustee Board if requested so to do by that Board and if after
so doing the NSW Government nevertheless proposes to take such Action, unless such
Notice is waived by the Trustee, the NSW Government shall give at least 2 Business
Days Notice to the Trustee of its intention so to do; and(iv)
    
    the NSW Government shall be entitled only to take:
 (A)
    
    the Action so Notified, such other alternative action as may
reasonably be considered to be within the general scope of the Action so
Notified, or as otherwise agreed by the Trustee, and any of the foregoing
actions as shall be reasonably incidental to either the Action so Notified or
such alternative or agreed Action; and(B)
    
    urgent Action in the nature of seeking urgent interlocutory
Court relief of which it was not practicable for the procedure in this clause
16.6(c) to be carried out, provided that the NSW Government gives such notice
of such urgent action to the Trustee in relation thereto as shall be reasonably
practicable in the circumstances.
 (d)
    
    Subject to the foregoing and clause 10.3(i), the NSW Government shall be entitled to claim
and recover as damages (in addition to all other amounts which the NSW Government may be
entitled to claim and recover on the NSW Governments own behalf) an amount equal to the
damages which the Trustee




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122 itself would have suffered as a result of the breach to which the power of enforcement
relates, together with any interest to the extent not included in the damages, provided that
in relation to any such claims or any exercise by the NSW Government of its enforcement
entitlements or its exercise of powers as attorney:
 (i)
    
    the NSW Government may not recover any such amount to the extent that the same
amount has previously been recovered by the Trustee;(ii)
    
    the Trustee may not recover any such amount to the extent that the same
amount has previously been recovered by the NSW Government;(iii)
    
    any amount recovered by the NSW Government pursuant to its rights under this
clause 16.6(excluding any amounts required to be disgorged by operation of law and
legal and other recovery costs to the extent recovered in relation to the NSW
Government in its own capacity and not on behalf of the Trustee) shall reduce any
liability or obligation of JHINV and/or the Performing Subsidiary to the Trustee under
this deed or a Related Agreement by a corresponding amount;(iv)
    
    unless clause 4.6applies, any amounts received by the NSW Government pursuant
to its rights under this clause 16.6or which is due and payable to it (excluding any
amounts required to be disgorged by operation of law (disregarding any law which comes
into force in breach of clause 13and which breach has been Notified to the NSW
Government) its legal and other recovery costs), must be paid (or, where not yet
received, directed by it to be paid) immediately to the Trustee and such amounts shall
be held on trust for the Trustee;(v)
    
    if clause 4.6applies, any such amount received by or under the direction of
the NSW Government (excluding legal and other recovery costs to the extent recovered in
relation to the NSW Government in its own capacity and not on behalf of the Trustee)
shall be paid in accordance with that clause;(vi)
    
    if the NSW Government takes any action in exercise of any such enforcement
entitlements, it shall be liable to the Trustee for such damage as the Trustee may
suffer from any negligence in relation to the timing or manner of such action, unless
at the time such action is taken a majority of directors of the Trustee Board were
appointed by JHINV and control a majority of the voting rights of that Board and the
Trustee has been given reasonable prior Notice of such action by the NSW Government and
not objected to such action.
 (e)
    
    If the NSW Government takes any enforcement action under this clause 16.6, it may, by Notice
to the Trustee but subject to clause 16.6(d)(iv), require that the Trustee refrain from taking
any action which, if taken, would be inconsistent




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123 with the Action of the NSW Government under this clause 16.6or, subject to law, rescind or
revoke prior actions undertaken by the Trustee.
 (f)
    
    The Trustee must not, without the prior written consent of the NSW Government, waive or
compromise all or any part of any payment (actually or contingently) due from JHINV or the
Performing Subsidiary under this deed or any Related Agreement, and the Parties acknowledge
that any such purported waiver or compromise that is not accompanied by such written consent
from the NSW Government is invalid, has no effect on the obligations of JHINV or the
Performing Subsidiary and cannot be relied upon or pleaded by way of estoppel or otherwise.
 (g)
    
    The NSW Governments power of enforcement referred to in this clause 16.6is without
prejudice to any of the rights and powers conferred on the NSW Government (whether alone or
jointly with others) under, or consequent upon a breach by a Party of its obligations under,
this deed or any Related Agreement.
 (h)
    
    Subject to the foregoing provisions of this clause 16.6, the power of the NSW Government to
enforce under this clause 16.6on behalf of the Trustee shall be without prejudice to and
shall not derogate or detract from the rights and powers of the Trustee to enforce the
provisions of this deed (and any Related Agreement to which it is a party) given in favour of
the Trustee.
 16.7 Interest on defaults
 clause 9. 4(b)(vii) 9.7
 17
    
    INTERIM FUNDING17.1
    
    Interim Funding to Liable Entities
 clause 2.2(a) clause 2.2(a)
 17.2
    
    Conditions to interim funding
 clause 17




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124 17.3
    
    Type of assistanceThe extent and manner of assistance to be provided (for example, by way of loan or advance) and the
terms and conditions thereof are to be agreed by JHINV and the Liable Entities.18
    
    BORROWING BY THE TRUSTEE18.1
    
    Power to BorrowSubject to the terms of the Trust Deed, the Trustee may borrow funds in the event that there is a
shortfall or prospective shortfall of funds being available to it by way of Funding Payments.18.2
    
    No Credit Support by NSW Government or the JHINV GroupThe Trustee shall not be entitled to credit or other borrowing support from the NSW Government or
the JHINV Group.19
    
    EDUCATION PROGRAMME19.1
    
    Education campaign
  (a)
    
    the Parties are to seek, on an ongoing basis, the active co-operation and funding support of
the Other Governments, insurers and other companies with Asbestos liabilities relevant to the
focus of the education campaign described in clause 19.1(f) for the education campaign;(b)
    
    funding shall be administered by a Committee comprised of representatives of the NSW
Government, JHINV, the ACTU and any Persons who have committed a minimum of $50,000 per annum
to the education campaign (if they so wish);(c)
    
    amounts contributed by JHINV and not spent within a certain year shall be carried over to the
next year and amounts left over at the end of the 10 year period shall be allocated at the
Committees sole discretion to:
 (i)
    
    education programs determined by the Committee; or(ii)
    
    a medical research funding institution of good repute which conducts medical
research into Asbestos, as selected by the Committee following consultation with JHINV;




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125 
 (d)
    
    the Committee will consider the style and content of the education campaign and will not
endorse that content or style without the approval of a majority of the representatives on the
Committee;
 (e)
    
    the Parties acknowledge the importance of an endorsement by a government of education
material and the Committee will use reasonable endeavours to obtain such an endorsement of its
education material and the NSW Government agrees to consider in good faith such requests for
endorsement;(f)
    
    the education campaign will focus on home renovators by:
 (i)
    
    alerting those people to the dangers of Asbestos;(ii)
    
    alerting those people as to what products may contain Asbestos and where those
products may be found in existing household or other environments; and(iii)
    
    advising those people as to the steps that ought be taken by people planning
home renovations or who otherwise identify Asbestos products in their home or other
environment; and
 (g)
    
    the education campaign will use such methods as are determined by the Committee in its
discretion.
 19.2
    
    In kind assistance
 clause 19.1
 20
    
    MEDICAL RESEARCH20.1
    
    Medical research
  (a)
    
    JHINV will contribute an amount of $500,000 per annum for a period of 10 years (starting on
the Commencement Date and payable on or by each anniversary thereof) for the purposes of
conducting or funding the conduct of medical research into the diagnosis and treatment of
Asbestos diseases on the basis that:
 (i)
    
    JHINV administers its own medical research grants scheme with the assistance
of relevant experts to review and make recommendations concerning the expressions of
interest and research proposals; and




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126 (ii)
    
    any Funds not used in any particular year can be carried over and added to
the next years funding amount;
 (b)
    
    JHINV will, within 6 months of the Commencement Date, establish a trust for the purposes of
conducting or funding the conduct of medical research into the diagnosis and treatment of
Asbestos diseases and ensure that all funds paid to that trust are maintained in one or more
bank accounts to be used only for the purposes of the trust;(c)
    
    the trustee of the medical research trust will at all times be a member of the JHINV Group
determined by JHINV in its discretion;(d)
    
    the awarding of medical research grants from the proceeds of the trust shall be a matter for
the trustee to determine in accordance with the purposes of the trust; and(e)
    
    on and from the time the final payment required under this clause 20.1is made, or if for any
reason the trust determines earlier than on the tenth anniversary of the Commencement Date,
JHINV may at its election, by Notice to the NSW Government determine the medical research
trust and in any such case any resulting surplus funds and any amounts not then due and
payable under clause 20.1(a) shall be paid to one or more medical research institutions
selected by agreement between JHINV and the NSW Government which are of good repute and which
conduct medical research into the diagnosis and treatment of Asbestos diseases (and on such
terms as JHINV may consider reasonable to ensure that such funds are only expended on such
medical research into Asbestos diseases).20.2
    
    Reporting obligations(a)
    
    Within 20 Business Days after establishing the trust referred to in clause 20.1(b), JHINV
shall give Notice to the NSW Government confirming that the trust has been established and
attaching a copy of the instrument by which the trust was established.(b)
    
    JHINV agrees to promptly provide to the NSW Government copies of the annual reports,
financial statements and such other periodic reports as may be produced by the medical
research trust from time to time in relation to the granting of medical research grants.(c)
    
    JHINV agrees to procure that the trust deed pursuant to which the trust is established shall
oblige the trustee to include within its periodical reporting:
 (i)
    
    the amount of each contribution by JHINV under clause 20.1(a) and the current
balance of the trust funds; and(ii)
    
    in respect of each medical research grant from proceeds of the trust, the name
and address of the recipient of such grant, the amount of such




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127 grant and details of the medical research project to which such grant is to be
applied.
 21
    
    BANS AND BOYCOTTS
  22
    
    OPINIONS22.1
    
    Acknowledgement of receipt of opinions effective at the date of this deed
  (a)
    
    an opinion from Atanaskovic Hartnell as to the validity, binding nature and enforceability of
this deed under Australian law, in the form set out in Schedule 4; and(b)
    
    an opinion from De Brauw Blackstone Westbroek in relation to Dutch law in the form set out in
Schedule 5.22.2
    
    Opinions to be received following execution of this deed
 clause 2. 1(d)
 (a)
    
    an opinion from Atanaskovic Hartnell in the form set out in Schedule 6;(b)
    
    an opinion from De Brauw Blackstone Westbroek in relation to Dutch law in the form set out in
Schedule 7;(c)
    
    a corresponding opinion from Gibson, Dunn and Crutcher LLP in relation to applicable U.S.
Federal and Californian law and the rules and regulations of the New York Stock Exchange in
the form set out in Schedule 8,




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128 23
    
    CONFIDENTIALITY23.1
    
    Confidentiality
 clause 23.2 Representative
 (a)
    
    the terms of this deed and the Related Agreements until the Shareholder Documentation has
been sent to Shareholders; and(b)
    
    all information provided to that Party or its Representatives in relation to, or in
connection with this deed or any Related Agreement; and(c)
    
    all matters relating to the Transaction Legislation and the Release Legislation, including
without limitation, drafts of the Transaction Bill and the Release Bills.
  23.2
    
    Exceptions
  (a)
    
    the Partys related bodies corporate, professional advisors, bankers, financial advisors and
financiers, if those persons undertake to keep the information disclosed confidential;(b)
    
    any Person being considered by a Party to be nominated as a Director, provided that such
candidate agrees to keep such information confidential pending his or her appointment (after
which the Director shall be subject to the same confidentiality requirements applicable to
other Directors) and failing such appointment being made the candidate must immediately return
all such information in written or recorded form and delete all electronic records of such
information in its possession or under its control;(c)
    
    comply with any applicable law or requirement of any regulatory body (including any relevant
Stock Exchange) and any corporate governance guidelines adopted by such bodies which are
adopted by JHINV;(d)
    
    any of its employees to whom it is necessary to disclose the information, if that employee
undertakes to keep the information confidential;(e)
    
    gain necessary approvals for the purpose of entering into or implementing this deed
(including by satisfying the Conditions) provided (except in the case of the Condition in
clause 2.1(d)) that, except in relation to any disclosures made pursuant to clause 2.5, the
recipient is provided with a copy of this clause 23and agrees to keep such information
confidential;




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129 (f)
    
    any Person as permitted by the written agreement of all Parties; or(g)
    
    any Person if the content of the Disclosure is or has become generally available to the
public otherwise than by breach of this deed or by breach of any confidentiality deed entered
into on or before the date of this deed and to which the NSW Government and JHINV (among
others) were party in relation to the Transaction Bill and the Release Bills (and for the
avoidance of doubt, once a version of the Transaction Legislation or the Release Legislation
is introduced in the NSW Parliament, only so much of any other version of the Transaction
Legislation, the Release Legislation, the Transaction Bill or the Release Bills as is
reflected in the terms in which it is introduced is then in the public domain).23.3
    
    Disclosure to the parties to the Heads of Agreement
  (a)
    
    those persons must have previously agreed to keep such information strictly confidential
until such time as the Shareholder Documentation is sent to Shareholders;(b)
    
    access by such persons to the terms of this deed shall be supervised by the disclosing Party;
and(c)
    
    such persons shall not be permitted to photocopy or retain a copy of this deed or any of the
Related Agreements to which they are not party, until the Shareholder Documentation has been
sent to Shareholders.24
    
    AGREED SUMMARY
 Annexure 2 clause 23.1
 25
    
    COSTS AND STAMP DUTY25.1
    
    Costs
 clause 25.2
 25.2 Stamp duty
 clause 25.3




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##### 



130 25.3
    
    Waiver of NSW stamp duty
 clause 63
 26
    
    GOVERNING LAW AND JURISDICTION26.1
    
    Governing law
  26.2
    
    Submission to jurisdiction
  26.3
    
    Service
 (a)
    
    A document may be served on a Party by delivering it to that Party at its address in clause
30.
 clause 26.3
 (c)
    
    JHINV irrevocably appoints James Hardie Australia Pty Limited (ACN 084 635 558 as its agent
to receive service of process in any legal action or proceeding related to this deed or any
Related Agreement in the Courts of New South Wales, and must appoint a substitute agent
reasonably acceptable to the NSW Government if the then current agent is unable to receive
service of process.
 27
    
    COUNTERPARTS
  28 ACCESS TO INFORMATION
 (a)
    
    If at any time there is no Director in office who has been appointed by the NSW Government or
if the NSW Government has requested the Trustee in writing to do so, the Trustee must do the
following, provided that the NSW Government shall not be entitled to exercise these rights in
such a way as to interfere with or impose a material compliance or administrative burden on
the Trustee:
 (i)
    
    upon being requested to do so on a Financial Year by Financial Year basis,
provide to an officer of the NSW Government notified by the NSW Government to the
Trustee and JHINV from time to time as being designated for this purpose (Designated
Officer) copies of all notices of meeting of the Trustee Board, all agendas and copies
of minutes of




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##### 



131 Trustee Board meetings held during that Financial Year as if the Designated Officer
were a Director;(ii)
    
    promptly, upon being requested to do so in relation to a particular meeting,
provide the Designated Officer with a copy of the Board Papers of the Trustee Board as
if the Designated Officer were a Director;(iii)
    
    upon being given reasonable notice, permit the NSW Government to inspect the
property of the Trustee during office hours;(iv)
    
    upon being given reasonable notice, permit the NSW Government to inspect and
take copies of the Trustees business records, including its accounts; and(v)
    
    respond to reasonable enquiries relating to the business affairs and finances
of the Trustee and permit the Designated Officer and such other senior officers
(Senior Officers) of the NSW Government as may be reasonably necessary with
reasonable access to the officers, employees, and Approved Auditor of the Trustee to
enable such matters to be discussed.
 (b)
    
    The NSW Government agrees and undertakes to procure that all information obtained by it or
the Designated Officer or any Senior Officer in relation to the Trustee under this clause 28
shall be kept confidential and shall be used only for the purpose of assessing the compliance
of JHINV, the Performing Subsidiary and the Trustee with their respective obligations under
this deed and the Related Agreements.
 (c)
    
    JHINV, the Performing Subsidiary and the Trustee acknowledge that the confidentiality
obligations of the NSW Government under clause28(b) are without prejudice to any overriding
obligations of any NSW Government Minister to perform his or her Ministerial duties to the NSW
Parliament, nor do such obligations fetter the exercise by any such Minister of his or her
proper Ministerial functions or powers.
 (d)
    
    In the event that the NSW Government has requested the Trustee to provide any document
described in clause28(a) and the Trustee has after a reasonable time been unable to locate
such document, the Designated Officer may request JHINV and JHINV shall use reasonable
endeavours to provide a copy of the named and identified document to the Designated Officer,
and JHINV shall provide a copy of any such document within the possession or under the control
of JHINV or the Performing Subsidiary.
 29
    
    AMENDMENT OF THIS DEED




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132 30
    
    NOTICES(a)
    
    A notice, approval, consent, nomination or other communication (Notice) to a person
relating to this deed:
 (i)
    
    must state that it is a notice relating to this deed;(ii)
    
    shall state the relevant clause in this deed to which the notice relates;(iii)
    
    must be in legible writing; and(iv)
    
    must be in English.
 (b)
    
    If the Notice is to either or both of JHINV and/or the Performing Subsidiary then it must be
addressed as follows:
 Name:
    
    James Hardie Industries NV/ Performing SubsidiaryAttention:
    
    The Chairman and the Chief Financial OfficerAddresses:
    
    Atrium,
8th floor, Strawinskylaan 3077, 1077ZX Amsterdam, The Netherlands

Level 3, 20 Pitt Street, Sydney NSW 2000Facsimile:
    
    + 61 2 8274 5218
 (c)
    
    If the Notice is to the NSW Government then it must be addressed as follows:
 Name:
    
    The State of New South Wales, c/- The Cabinet OfficeAttention:
    
    Deputy Director-General (Legal)Address:
    
    Level 39, Governor Macquarie Tower, Farrer Place, Sydney, NSW 2000Facsimile:
    
    + 61 2 9228 3062
 with copies, if the NSW Government has appointed a Director or any Directors, to each such
Director as notified to the Trustee from time to time by such Director; and
 (d)
    
    If the Notice is to the Trustee then it must be addressed as follows:
 Name:
    
    Asbestos Injuries Compensation Fund LimitedAttention:
    
    The ChairmanAddress:
    
    To be advised




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##### 



133 Facsimile:
    
    To be advised
 (e)
    
    If the Notice is from a corporation then an officer of that corporation must sign the Notice.(f)
    
    Notice is sent by the sender and received by the receiver:
 (i)
    
    if the Notice is hand delivered, upon delivery to the receiving Party;(ii)
    
    if the Notice is sent by facsimile, upon the successful completion of the
relevant transmission;(iii)
    
    if the Notice is sent by registered mail within Australia, 2 Business Days
after the registration of the notice of posting; and(iv)
    
    if the Notice is sent by ordinary mail within Australia, 3 Business Days from
and including the date of postage.
 (g)
    
    For the avoidance of doubt, Notice shall not be sent by electronic email.(h)
    
    In clause 30(f), a reference to a Party receiving a Notice includes a reference to the
receivers officers, agents or employees.(i)
    
    A Party may vary any of the details relating to it contained in clause30(b) or 30(c) at any
time by Notice to the other Parties.(j)
    
    Where a Notice to a Party must be copied to another Person, each such Notice must be
despatched at the same time and using the same method and upon failure to do so, each such
Notice will be deemed to be given at the time and by the method of despatch of the last such
Notice.31
    
    GENERAL31.1
    
    Severability(a)
    
    If a provision of this deed is invalid, illegal or unenforceable, then that provision to the
extent of the invalidity, illegality or unenforceability must be ignored in the interpretation
of this deed.(b)
    
    All the other provisions of this deed remain in full force and effect.31.2
    
    No waiver(a)
    
    A Partys agreement to waive a right or entitlement under this deed is only effective if that
Party gives written Notice of that waiver to the Party seeking the benefit of the waiver.(b)
    
    Waiver by a Party of anything required to be done under this deed is not a waiver of any
other thing required to be done under this deed.




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134 (c)
    
    Clause 31.2(b) applies even if the act or thing is of a different nature.(d)
    
    A failure or delay in exercising a right arising from a breach of this deed is not a waiver
of that right.31.3
    
    Further assurances
  31.4
    
    Entire agreement(a)
    
    This deed and the Related Agreements embody the entire agreement between the Parties.(b)
    
    This deed supersedes all previous agreements.(c)
    
    The Heads of Agreement is superseded by this deed.32
    
    CUMULATIVE RIGHTS
  (a)
    
    is cumulative; and(b)
    
    does not diminish any other right, power, discretion and remedy of any Party.33
    
    ATTORNEYS
  34
    
    ASSIGNMENT, NOVATION AND OTHER DEALINGS




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135 Schedule 1  Related Agreements
 Title
    
    Parties
    
    PurposeTrust Deed of the Fund
(Annexure 8)
    
    Settlor
Trustee
    
    Establish the Fund
and set out its
purposes powers and
governanceJHINV Guarantee
    
    JHINV, the Trustee
and NSW Government
    
    Guarantee by JHINVIntercreditor Deeds(Annexures 7A and 7B)
    
    The Trustee
JHINV/Performing
Subsidiary
NSW Government
Guarantee Trustee
    
    Sets out
intercreditor
arrangements as
between the Trustee
and the NSW
Government, and the
LendersUnions Deed of Release
(Annexure 3)
    
    JHINV, ACTU, Unions
NSW, Banton
    
    Release from
liability and
lifting of boycotts
upon signing
Principal DeedNSW Government Deed of
Release
(Annexure 6)
    
    JHINV, NSW Government
    
    Release from liability upon the Commencement DateIrrevocable Power of
Attorney (Annexure 9)
    
    Trustee
NSW Government
    
    To appoint the NSW
Government as the
attorney of the
Trustee




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##### 



136 Schedule 2  Representations and Warranties
 Part 1  Representations and warranties by JHINV
  (a)
    
    incorporation:
 (i)
    
    JHINV is a company duly incorporated and validly existing under the laws of the
Netherlands;(ii)
    
    the Performing Subsidiary is a company duly incorporated and validly existing
under the laws of Australia;
 corporate power:
 (i)
    
    subject to satisfaction of the conditions set forth in clauses 2.1(c)and
2.1(d), JHINV; and(ii)
    
    the Performing Subsidiary,
 has the corporate power to enter into and perform its obligations under this deed, the JHINV
Guarantee and the other Related Agreements to which it is a party and to carry out the
transactions contemplated by those documents;(c)
    
    enforceability:subject to the terms of the opinions set out in Schedules 3, 4 and 5, this
deed and each Related Agreement to which JHINV or the Performing Subsidiary is a party are
valid, binding and enforceable against those parties in accordance with their terms in
competent courts exercising jurisdiction in New South Wales or, in the case of the JHINV
Guarantee, in the Netherlands;(d)
    
    no contravention by JHINV:so far as JHINV is aware, the execution by JHINV of this deed,
the JHINV Guarantee and the other Related Agreements to which it is a party will not violate
in any material respect any provision of:
 (i)
    
    the constituent documents of JHINV;(ii)
    
    any material agreement or judgment binding upon JHINV or the assets of JHINV;
or(iii)
    
    any law or regulation of any Government Authority or Stock Exchange;
 (e)
    
    no contravention by the Performing Subsidiary: so far as JHINV is aware, the execution by
the Performing Subsidiary of this deed and the Related Agreements to which it is a party will
not violate in any material respect any provision of:
 (i)
    
    constituent documents of the Performing Subsidiary;




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137 (ii)
    
    any material agreement or judgment binding upon the Performing Subsidiary or
the assets of the Performing Subsidiary; or(iii)
    
    any law or regulation of any Government Authority or Stock Exchange;
 (f)
    
    Solvency:JHINV is, immediately after entering into this deed, the JHINV Guarantee and the
other Related Agreements, able to pay its debts as and when they fall due; and
 (g)
    
    Authorisations:All authorisations, consents, approvals, registrations, notices, exemptions
and licenses with or from any Governmental Authority or Stock Exchange necessary for the due
and valid execution by JHINV and the Performing Subsidiary of, this deed and each of the
Related Agreements to which JHINV or the Performing Subsidiary is a party, or which would, if
not obtained by JHINV or the Performing Subsidiary, prevent the exercise by the Trustee of its
remedies under this deed and each of the Related Agreements to which JHINV or the Performing
Subsidiary is a party (assuming such rights were exercised immediately upon execution of this
deed), have been effected or obtained and are in full force and effect.
 2.
    
    Awareness
 clause 1 Schedule 2 clause
2.8(b)
 3. Acknowledgement of Reliance
 clause 2. 8(b)




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138 Schedule 2  Representations and Warranties (continued)
 Part 2  Form of Officers certificate
 To:
 insert name JHINV
 Principal
Deed
    Signed:Date:




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##### 



139 Schedule 3  Percentage of Free Cash Flow
 Rules for Determination of Percentage of Free Cash Flow for Payments of JHINV Contributions
 1.
    
    Initial Free Cash Flow position and general ruleThe percentage of Free Cash Flow available for payments under clause 9for each Financial
Year of the Term shall be:
 a.
    
    for each Financial Year before the Financial Year ending on 31 March 2012, 35%;
andb.
    
    for each Financial Year ending on or after 31 March 2012, subject to paragraphs
2, 3, and 4, the same percentage as for the previous Financial Year.
 2.
    
    Step DownSubject to clauses 9.14(c) and 9.14(d), in relation to each Financial Year (Relevant
Financial Year) to which paragraph 1(b) applies, if:
 a.
    
    there has been no previous reduction in the percentage of Free Cash Flow under
this paragraph 2 or the last reduction in the percentage of Free Cash Flow under this
paragraph 2 (ie not being a reduction under paragraph 5) occurred no later than the
Financial Year commencing four years before the start date of the Relevant Financial
Year;b.
    
    the percentage of Free Cash Flow applying to payments under clause 9for the
previous Financial Year was 10% or more; andc.
    
    the formula AFCF x (PP-5 percentage points) > ACA is satisfiedwhere:
 AFCF =
    
    the arithmetic mean of the amounts of the Free Cash Flow for
the previous four Financial YearsPP =
    
    the percentage of Free Cash Flow applying to payments under
clause 9for the previous Financial YearACA =
    
    the arithmetic mean of the Annual Contribution Amounts for
the previous four Financial Years,
 the percentage of Free Cash Flow available for payments under clause 9for that
Financial Year shall be the percentage which applied in the previous Financial Year less 5
percentage points.




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140 
 Example in relation to paragraph 2If the Relevant Financial Year was the year ending on 31 March 2015 and in the previous
Financial Year PP was 35% then the percentage of Free Cash Flow for the Relevant Financial
Year would become 30% if the tests in sub-paragraph (a) and sub-paragraph (c) were
satisfied.3.
    
    Step Up3.1
    
    Subject to paragraph 3.2 and to clauses 9.14(c) and 9.14(d), in relation to any Financial
Year commencing with or which comes after the Financial Year ending 31 March 2013, if:
 a.
    
    there has been a reduction in the percentage of Free Cash Flow under paragraph
2; andb.
    
    the Annual Contribution Amount for that Financial Year would be greater than
that which would be otherwise required by clause 9for that Financial Year,
 then the percentage of Free Cash Flow available for payments under clause 9for that
Financial Year shall be the percentage which applied in the previous year plus 5 percentage
points.3.2
    
    If there has been an increase in the percentage of Free Cash Flow under paragraph 3.1, the
percentage cannot be stepped up again from that level in any subsequent Financial Year.Example in relation to paragraph 3:If the percentage of Free Cash Flow in the Financial Year ending 31 March 2016 would have
been 25% and then paragraph 3.1 applies to that Financial Year, the new percentage of Free
Cash Flow for that Financial Year would be 30% but paragraph 3.2 prevents the Free Cash Flow
percentage ever being increased at any stage in the future to above 30%.4.
    
    No Immediate Reduction if Step Up in 2013 Financial YearWhere paragraph 3 has been applied to the Financial Year ending 31 March 2013 to increase
the percentage of Free Cash Flow available for payments in that Financial Year back up to
35%, paragraph 2 cannot be applied to the Financial Year ending on 31 March 2014 to reduce
the percentage of Free Cash Flow in that Financial Year back down to 30%.Example in relation to paragraph 4If the percentage of Free Cash Flow for the year ending 31 March 2012 was reduced under
paragraph 2 to 30% and then was increased for the Financial Year ending 31 March 2013 under
paragraph 3 to 35%, the earliest that it




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141 could be reduced again under paragraph 2 to 30% would be the year ending 31 March 2015
(because paragraph 2 could not be reapplied until after 31 March 2014). The earliest that
it could then be further reduced under paragraph 2 to 25% would be the year ending 31 March
2019 (because paragraph2(a)requires a four year gap between the start dates for each step
down other than step downs to reverse a step up under paragraph 5).5.
    
    Step-down After Previous Step-upSubject to paragraph 4, where paragraph 3 has been applied to increase the percentage of
Free Cash Flow available for payments in a Financial Year, the application of the test in
paragraph 2(a) to determine whether to reduce the percentage of Free Cash Flow, should be
ignored when assessing whether JHINV can move down to the next 5 percentage point level.Example in relation to paragraph 5If the percentage was reduced under paragraph 2 from 35% to 30% for the year ending 31 March
2015 and then had to be increased under paragraph 3 to 35% for the year ending 31 March
2016, the percentage could return to 30% for the year ending 31 March 2017(if the test in
paragraph2(c)is satisfied). The earliest that paragraph 2 will allow a reduction to 25%
would then be the year ending 31 March 2019 i.e. 4 years after the last reduction under
paragraph 2.




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142 
 Schedule 4  Opinion  Atanaskovic Hartnell
 Opinion from Atanaskovic Hartnell to be given on execution of this deed




---



##### 



143 Schedule 5  Opinion  De Brauw Blackstone Westbroek
 Opinion from De Brauw Blackstone Westbroek to be given on execution of this deed




---



##### 



144 Schedule 6  Opinion  Atanaskovic Hartnell
 Negative assurance opinion from Atanaskovic Hartnell to be given immediately following Shareholder
approval




---



##### 



145 Schedule 7  Opinion  De Brauw Blackstone Westbroek
 Opinion from De Brauw Blackstone Westbroek to be given regarding shareholder approval




---



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146 Schedule 8  Opinion  Gibson Dunn and Crutcher LLP
 Opinion from Gibson Dunn and Crutcher LLP to be given regarding Shareholder approval




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147 Schedule 9  Deed of Novation
 DEED OF NOVATION
 DATE
 PARTIES
 1.
    
    [PERFORMING SUBSIDIARY](Retiring Party)2.
    
    [INSERT](Substitute Party)
 AND
 3.
    
    JAMES HARDIE INDUSTRIES N.V. ARBN 097 892 895incorporated in the Netherlands
and having its registered office at Atrium, 8th Floor, Strawinskylaan 3077, 1077ZX Amsterdam,
Netherlands (with its principal office in Australia at Level 3, 22 Pitt Street, Sydney, New
South Wales, 2000) (JHINV)4.
    
    THE STATE OF NEW SOUTH WALES (NSW Government)5.
    
    LGTDD PTY LIMITEDABN [ ], of Level 3, 22 Pitt Street, Sydney in
the State of New South Wales (the Performing Subsidiary)6.
    
    [AICF] LIMITED,trustee of the Fund from time to time, in its capacity as
trustee (the Trustee)
 (each of JHINV, NSW Government, the Performing Subsidiary and the Trustee[and insert other parties]
are a Continuing Party)




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##### 



148 
 THE PARTIES AGREE
 DEFINITIONS AND INTERPRETATION
 1.
    
    DEFINITIONS
  Effective Date
 Principal Deed insert
date
 1.2 Interpretation
  2. NOVATION
 2.1 Novation
  (a)
    
    the Substitute Party replaces the Retiring Party under the Principal Deed as if it was an
original party to the Principal Deed; and
 (b)
    
    a reference in the Principal Deed to the Retiring Party must be read as a reference to the
Substitute Party.
 2.2 Assumptions of rights and obligations
   (b)
    
    obtains the rights and assumes the obligations and liabilities of the Retiring Party under
the Principal Deed whether arising before or after the Effective Date; and
 (c)
    
    each Continuing Party must comply with the Principal Deed on the basis that the Substitute
Party has replaced the Retiring Party under it in accordance with this deed.




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149 
 2.3 Release by Continuing Party
  (a)
    
    any of the Retiring Partys obligations or liabilities which arose under the Principal Deed;
and
 (b)
    
    any action, claim and demand it has, or but for this clause 2.3would have had, against the
Retiring Party under the Principal Deed.
 2.4 Release by Retiring Party
   (b)
    
    any action, claim and demand it has, or but for this clause 2.4 would have had, against the
Continuing Party under the Principal Deed.
 2.5 Indemnity and Liability
 (a)
    
    The Substitute Party indemnifies the Retiring Party on demand against any claim, action,
damage, loss, liability, cost, expense or payment which the Retiring Party pays, suffers,
incurs or is liable for in respect of any act of or omission by the Substitute Party in
respect of the Principal Deed, which occurs after the Effective Date.
 (b)
    
    The Substitute Party is liable to each Continuing Party in respect of any claim, action,
damage, loss, liability, cost, expense or payment which the Continuing Party pays, suffers,
incurs or is liable for in respect of the Principal Deed, which occurred, or which arises out
of or is caused by any act or omission which occurred on, before or after the Effective Date.
 (c)
    
    Without limiting the generality of their respective terms, each indemnity in this clause 2.5
in favour of a party extends to all legal costs and expenses incurred by the party on the
higher of a solicitor and own client basis and a full indemnity basis.
 3. REPRESENTATIONS AND WARRANTIES
 3.1 Substitute Party Warranties
 (a)
    
    The Substitute Party represents and warrants to each Continuing Party that the statements
with respect to the Performing Subsidiary set out in Part 1of Schedule 2of the Principal
Deed are true and accurate as at the date of this




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##### 



150 deed, as amended by replacing references to the Performing Subsidiary with the Substitute
Party.
 (b)
    
    On the date of this deed, the Substitute Party has provided to the NSW Government, and the
NSW Government acknowledges receipt, of an officers certificate signed by the chief financial
officer of the Substitute Party in the form set out in Part 2of Schedule 2(but only in
respect of statements made with respect to the Performing Subsidiary, as described in clause
3.1(b) of this deed).
 4. MISCELLANEOUS
 4.1 General
  SIGNED
 EXECUTION CLAUSES




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##### 



151 Schedule 10 - Trustee
Constitution




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##### 



CORPORATIONS ACT
 A Company Limited by Guarantee
 ASBESTOS INJURIES COMPENSATION FUND LIMITED
 ABN
XX XXX XXX XXX
 CONSTITUTION




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##### 



TABLE OF CONTENTS
 Clause
    
    Page1 Objects of the Company
    
    
    11.1 Definitions and Interpretation
    
    
    11.2 Nature of the Company
    
    
    11.3 Replaceable rules
    
    
    11.4 Objects
    
    
    11.5 Obligations of the Company
    
    
    31.6 No distribution to Members
    
    
    31.7 Membership
    
    
    32 Proceedings of Members
    
    
    42.1 Written resolutions of Members
    
    
    42.2 Annual General Meeting
    
    
    42.3 How to call meetings of Members
    
    
    42.4 Right to attend meetings
    
    
    52.5 Meeting at more than one place
    
    
    52.6 Chairperson
    
    
    52.7 General conduct of meetings
    
    
    52.8 Resolutions of Members
    
    
    63 Directors
    
    
    63.1 Number and Appointment of Directors
    
    
    63.2 Vacation of office
    
    
    63.3 Remuneration of Directors
    
    
    73.4 Interests and duties of Directors
    
    
    74 Officers
    
    
    84.1 Secretary
    
    
    84.2 Indemnity and insurance
    
    
    85 Powers of the Company and Directors
    
    
    95.1 General powers
    
    
    95.2 Execution of documents
    
    
    95.3 Committees and delegates
    
    
    106 Proceedings of Directors
    
    
    106.1 Written resolutions of Directors
    
    
    106.2 Meetings of Directors
    
    
    116.3 Who can call meetings of Directors
    
    
    116.4 How to call meetings of Directors
    
    
    116.5 Quorum
    
    
    126.6 Adjournment
    
    
    126.7 Alternate Directors
    
    
    126.8 Chief Executive Officer
    
    
    126.9 Chairperson
    
    
    126.10 Resolutions of Directors
    
    
    136.11 Interests of Appointor
    
    
    137 Notices
    
    
    137.1 Notice to Members
    
    
    137.2 Notice to Directors
    
    
    137.3 Notice to the Company
    
    
    147.4 Time of service
    
    
    147.5 Signatures
    
    
    14i




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##### 



Clause
    
    Page8 Distributions from the Company
    
    
    149 Inconsistency
    
    
    14




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##### 



ASBESTOS INJURIES COMPENSATION FUND LIMITED
 CONSTITUTION
 1.
    
    Objects of the Company1.1
    
    Definitions and InterpretationSchedule 1 applies and forms part of this Constitution.1.2
    
    Nature of the Company
 (a)
    
    The Company is a public company limited by guarantee.(b)
    
    The initial Member will be the Person who is listed as the initial member
in the registration statement. Thereafter, the Member will be the Chairperson of
the Board from time to time.(c)
    
    The Member undertakes to contribute an amount not exceeding $10 to the
property of the Company if the Company is wound up:
 (i)
    
    at a time when the Person is a Member; or(ii)
    
    within one year after the time the Person ceased to
be a Member,for:(iii)
    
    payment of the debts and liabilities of the Company
contracted before the Person ceases to be a Member; and(iv)
    
    payment of the costs, charges and expenses of winding
up the Company.
 1.3
    
    Replaceable rulesThe replaceable rules in the Corporations Actdo not apply to the Company.1.4
    
    ObjectsThe objects of the Company are:
 (a)
    
    the principal purpose of receiving and providing funding for the payment
and paying of Payable Liabilities and providing services with respect to the
management and resolution of Payable Liabilities; and(b)
    
    the following additional purposes, which are for the Company to :
 (i)
    
    hold the benefit of the Funding Obligations and the obligation of the
Performing Subsidiary (if applicable) to pay the Wind-Up or Reconstruction
Amount in accordance with clause 10 of the Final Funding Agreement, the
JHINV Guarantee, and the covenants and obligations of JHINV under the
Final Funding Agreement and the Related Agreements to ensure the payment
by the JHINV Group of the JHINV Contributions under the Final Funding
Agreement and any Cross Guarantee given pursuant to clause 15.7 of the
Final Funding Agreement, and enforce the same as may be required from time
to time ;




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##### 



(ii)
    
    be the creditor of the Performing Subsidiary and JHINV for payments
(whether actually or contingently) due and payable to the Company
under the Final Funding Agreement and receive and give a proper
receipt for such amounts;(iii)
    
    manage itself or through one or more of the Liable
Entities or otherwise cause to be managed, the response to all Payable
Liabilities for itself or for or on behalf of the Liable Entities
including by entry into Claims Management Agreements with the Liable
Entities (and in respect of Payable Liabilities which are not SPF Funded
Liabilities, on the basis that the Liable Entities must bear the full cost
and all liabilities associated with such claims);(iv)
    
    provide management services to a Liable Entity in
connection with the winding up of the Liable Entity including exercising
all powers conferred on it by the Transaction Legislation;(v)
    
    subject to it having the necessary funds to do so and
clause 9.15 of the Final Funding Agreement, pay in accordance with and
subject to clause 4.7 of the Final Funding Agreement and the provisions of
the Transaction Legislation, the SPF Funded Liabilities itself or through
one or more of the Liable Entities, and in each case for itself or for or
on behalf of the Liable Entities as the Company may in its discretion
determine;(vi)
    
    use its best endeavours to achieve all available
legal and administrative cost savings in relation to:
 A.
    
    the process for handling the response to Personal
Asbestos Claims and Marlew Claims;B.
    
    Court proceedings dealing with
apportionment of damages in relation to Personal Asbestos Claims
and Marlew Claims; andC.
    
    exercising rights of recovery.
 (vii)
    
    review and implement legal and administrative cost
savings in the claims management process on a continuing basis both in
relation to the process for settling Personal Asbestos Claims and Marlew
Claims and the process generally applicable in relation to Personal
Asbestos Claims and Marlew Claims, including reducing Claims Legal Costs;(viii)
    
    invest the assets contributed to or received by the Company;(ix)
    
    use its best endeavours to:
 A.
    
    recover;B.
    
    procure that each Liable Entity
recover; andC.
    
    exercise or procure the exercise
of rights subrogated from any Claimant to recover,
 amounts paid or liabilities incurred with respect to any Personal
Asbestos Claims, Marlew Claims or any other Payable Liabilities from
insurers, reinsurers and other parties who may have contributed to
the loss relating to such claims;(x)
    
    generally do all things necessary and convenient for
the purposes of
 2




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##### 



handling and finalising Payable Liabilities for itself or
for and on behalf
of the Liable Entities (provided that nothing in the Final Funding
Agreement shall require the Company to incur any liability or pay any
amount with respect to a liability which is not a SPF Funded
Liability);
 (xi)
    
    as provided by the Transaction Legislation or to the
extent otherwise entitled to do so, be subrogated to the rights of the
Claimants against the Liable Entities and Marlew or any other Persons in
relation to any Payable Liability settled or met by the Company;(xii)
    
    be authorised and permitted to negotiate with
Claimants and at its discretion procure that the relevant Liable Entity
enter into binding settlements in relation to (including without
limitation compromises of Payable Liabilities); and(xiii)
    
    accept appointment and act as a Single Claims Manager.
 1.5
    
    Obligations of the CompanyIn the achievement of its objects under Rule 1.4, the Company is to comply with the
obligations applicable to the Company as set out in the Final Funding Agreement, the
Transaction Legislation and the Related Agreements.1.6
    
    No distribution to Members
 (a)
    
    The income and property of the Company shall be used and applied solely in
promotion of its objects and no portion shall be distributed, paid or transferred
directly or indirectly by way of dividend, bonus or by way of profit to the Members.(b)
    
    Rule 1.5(a) does not prevent the payment in good faith by the Company to
a Member of:
 (i)
    
    payment for services rendered or goods supplied by
the Member in the ordinary course of business;(ii)
    
    interest at a reasonable rate on money borrowed by
the Company from a Member;(iii)
    
    reasonable rent for premises demised or let to the
Company by the Member; or(iv)
    
    any other reasonable amount of a similar character to
those described in this Rule 1.5(b).
 1.7
    
    Membership
 (a)
    
    The initial Member is the Person who became a member of the Company upon
registration, and that Person shall be the Chairperson of the Board appointed in
accordance with the Final Funding Agreement.(b)
    
    Subject to paragraphs (c) and (d), the Board may admit and remove
Members.(c)
    
    For so long as the Company retains the office of trustee of the Fund:
 (i)
    
    the Company shall only have one Member;(ii)
    
    a Person will only be eligible to become a Member if
that Person holds the office of Chairperson; and
 3




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##### 



(iii)
    
    the Board will not admit a Person as a Member
unless:
 A.
    
    upon that admission, there will
only be one Member; andB.
    
    that Person has first
covenanted in favour of the Company and the Appointors that it
will not seek to exercise its power to amend this Constitution
without the prior written consent of the Appointors, or
otherwise cause or procure the Company to act in a manner which
is inconsistent with its obligations as trustee.
 (d)
    
    If the Member ceases to be the Chairperson of the Board of Directors, the
Member must immediately resign their Membership by notice in writing.(e)
    
    A resignation or removal pursuant to paragraph (d) will only become
effective:
 (i)
    
    once another Person who is appointed to the office of
Chairperson; and(ii)
    
    that Person has become a Member.
 2.
    
    Proceedings of Members2.1
    
    Written resolutions of MembersWhile the Company has only one Member, the Company may pass a resolution by that
Member signing a record in writing of that resolution.2.2
    
    Annual General Meeting
 (a)
    
    The Company must hold an AGM if required by, and in accordance with, the
Corporations Act.(b)
    
    The business of an AGM may include any of the following, even if not
referred to in the notice of the meeting:
 (i)
    
    the consideration of the annual financial report,
Directors report and auditors report for the Company;(ii)
    
    the appointment of Directors;(iii)
    
    the appointment of the auditor of the Company; and(iv)
    
    the fixing of the remuneration of the auditor of the Company.
 2.3
    
    How to call meetings of Members
 (a)
    
    The Company must give not less than Prescribed Notice of a meeting of Members.(b)
    
    Notice of a meeting of Members must be given to each Member, each
Director, and any auditor of the Company.(c)
    
    A notice of a meeting of Members must:
 (i)
    
    set out the place, date and time for the meeting (and
if the meeting is to be held in 2 or more places, the technology that will
be used to facilitate this);(ii)
    
    state the general nature of the business of the
meeting; and(iii)
    
    set out or include any other information or
documents specified by the
 4




---



##### 



Corporations Act.
 (d)
    
    A Person may waive notice of any meeting of Members by notice in writing
to the Company to that effect.
 2.4
    
    Right to attend meetings
 (a)
    
    Each Member and any auditor of the Company is entitled to attend any meetings of
Members.(b)
    
    Subject to this Constitution, each Director is entitled to attend and
speak at all meetings of Members.
 2.5
    
    Meeting at more than one place
 (a)
    
    A meeting of Members may be held in 2 or more places linked together by any
technology that:
 (i)
    
    gives the Members as a whole in those places a
reasonable opportunity to participate in proceedings;(ii)
    
    enables the Chairperson to be aware of proceedings in
each place; and(iii)
    
    enables the Members in each place to vote on a show
of hands and on a poll.
 (b)
    
    If a meeting of Members is held in 2 or more places:
 (i)
    
    a Member present at one of the places is taken to be
present at the meeting; and(ii)
    
    the Chairperson of that meeting may determine at
which place the meeting is taken to have been held.
 2.6
    
    Chairperson
 (a)
    
    The Chairperson must (if present within 15 minutes after the time appointed for
the holding of the meeting and willing to act) chair each meeting of Members.(b)
    
    If at a meeting of Members:
 (i)
    
    there is no Chairperson;(ii)
    
    the Chairperson is not present within 15 minutes
after the time appointed for the holding of a meeting of Members; or(iii)
    
    the Chairperson is present within that time but is
not willing to chair all or part of that meeting,
 the Directors present may, by majority vote, elect a Person present to chair all or part
of the meeting of Members.2.7
    
    General conduct of meetings
 (a)
    
    Subject to the Corporations Act, the Chairperson is responsible for the general
conduct of that meeting and for the procedures to be adopted at that meeting.(b)
    
    The Chairperson may delegate any power conferred by this Rule to any
Person.(c)
    
    The powers conferred on the Chairperson under this Rule 2.7 do not limit
the
 5




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##### 



powers conferred by law.
 2.8
    
    Resolutions of Members
 (a)
    
    Each Member will have one vote.(b)
    
    A corporate Member may nominate any individual as its representative to
exercise any votes it is entitled to at any general meeting of the Company,
regardless of the position held by that individual within the corporate Member.
 3.
    
    Directors3.1
    
    Number and Appointment of Directors
 (a)
    
    The Company must have at least 3 Directors and a maximum of 5 Directors as
determined by the Directors.(b)
    
    Subject to Rule 3.1(c) and 3.1(d):
 (i)
    
    JHINV shall be entitled to appoint a majority of the
Directors from time to time and to designate one of those Directors to be
Chairperson.(ii)
    
    JHINV may by notice in writing to the Company and the
NSW Government, nominate a subsidiary of JHINV for so long as it remains a
subsidiary of JHINV to exercise its rights under Rule 3.1(b)(i); and(iii)
    
    JHINV shall, or shall procure that the nominated
subsidiary shall, promptly give written notice to the Company and the NSW
Government of any appointment made pursuant to this Rule 3.1(b).
 (c)
    
    The NSW Government shall be entitled to appoint the remaining Directors.(d)
    
    If a Special Default occurs or an Insolvency Event in relation to JHINV
occurs, and so long as that Special Default or Insolvency Event remains in existence
and the NSW Government gives to JHINV a Notice under the Principal Deed that clause
16.3(b) of the Final Funding Agreement is to apply, the following Rules apply:
 (i)
    
    the Board must be constituted so that a majority of
the Directors shall have been appointed by the NSW Government;(ii)
    
    the NSW Government may appoint further Directors so
that the foregoing is achieved, and the Chairperson (and remove any such
appointees); and(iii)
    
    JHINV must procure the resignation of the requisite
number of Directors appointed by JHINV (so that the foregoing is
achieved),
 and the Company will give effect to all actions taken by the NSW Government and
JHINV in accordance with this paragraph.(e)
    
    A Director need not be a Member to qualify for appointment.
 3.2
    
    Vacation of office
 (a)
    
    A Director may resign from office by giving the Company notice in writing.(b)
    
    Each Appointor may, by notice in writing to the Company, remove and
replace from time to time the Persons appointed by it under Rule 3.1. Except in
cases of emergency, an Appointor must give at least 5 Business Days notice to the
other
 6




---



##### 



Appointor of any proposed appointment of a Director.
 (c)
    
    In addition to the circumstances prescribed by the Corporations Act, or
by the terms of the Directors appointment, the office of a Director becomes vacant
if the Director:
 (i)
    
    becomes of unsound mind or a Person whose estate is
liable to be dealt with under a law relating to mental health;(ii)
    
    is absent without the consent of the Directors from
all meetings of the Directors held during a period of 6 months and the
other Directors resolve that his or her office be vacated;(iii)
    
    resigns by notice in writing to the Company; or(iv)
    
    the Director becomes bankrupt or insolvent or makes
any arrangement or composition with his or her creditors generally.
 3.3
    
    Remuneration of Directors
 (a)
    
    Subject to Rule 3.3(b), a Director is not entitled to be paid any ýfee or
remuneration for holding office as a Director but is entitled to be paid or
reimbursed by the Company for:
 (i)
    
    out of pocket expenses incurred by the Director in the
performance of any duty as a director of the Company subject to the amount
payable not exceeding any amount previously approved by the Board;(ii)
    
    any service rendered to the Company by the director in a
professional or technical capacity (and not in his or her capacity as a
Director) where the provision of the service has been previously approved by
the Board of and the remuneration for the service does not exceed an amount
which is proper remuneration for the service;(iii)
    
    any salary or wage due to the director as an employee of the
Company where the terms of employment have been previously approved by the
Board and the salary or wage does not exceed an amount which is proper
remuneration;(iv)
    
    an insurance premium in respect of a contract insuring an
officer to which section 212 of the Corporations Actrefers or the provision of
a financial benefit (by way of indemnity) to a Director to which section 212 of
the Corporations Actrefers.
 (b)
    
    In addition to the payments to the Directors permitted under Rule 3.3,
the Company may pay such amount as Directors fees as it considers appropriate to
any Director not being an employee of the NSW Government or an employee of any
member of the JHINV Group.
 3.4
    
    Interests and duties of Directors
 (a)
    
    A Director may not hold an office or place of profit (except as auditor) in the
Company;(b)
    
    A Director is not precluded from voting or otherwise acting in his or her
capacity as a Director as a result of any conflict of interest arising from the fact
that the Director is an employee, consultant or officer of an Appointor, or in the
case of a Director appointed by the NSW Government, a public servant.(c)
    
    A Director may hold an office or otherwise be interested in any related
body
 7




---



##### 



corporate of the Company or other body corporate in which the Company is
interested or act, or the Directors firm may act, in any professional capacity
for the Company (except as auditor) or any related body corporate of the
Company or other body corporate in which the Company is interested and retain
the benefits of doing so, if the Director discloses in accordance with the
Corporations Actthe interest giving rise to those benefits.
 (d)
    
    If a Director discloses the interest of the Director in accordance with
the Corporations Act:
 (i)
    
    the Director may contract or make an arrangement with
the Company, or a related body corporate of the Company or a body
corporate in which the Company is interested, in any matter in any
capacity;(ii)
    
    the Director may, subject to the Corporations Act, be
counted in a quorum for a meeting of Directors considering that contract
or arrangement;(iii)
    
    the Director may, subject to the Corporations Act,
vote on whether the Company enters into the contract or arrangement, and
on any matter that relates to the contract, arrangement or interest;(iv)
    
    the Director may sign on behalf of the Company, or
witness the affixing of the common seal of the Company to, any document in
respect of the contract or arrangement;(v)
    
    the Director may retain the benefits under the
contract or arrangement; and(vi)
    
    the Company cannot avoid the contract or arrangement
merely because of the existence of the Directors interest.
 (e)
    
    Whilst the Company holds office as the trustee of the Fund, a Director
who causes the Company to comply with its obligations as such will be deemed to be
acting in the best interests of the Company.
 4.
    
    Officers4.1
    
    Secretary
 (a)
    
    The first Secretary is the Person specified in the application for registration
of the Company as Company secretary.(b)
    
    The Directors may appoint one or more Secretaries, for any period and on
any terms (including as to remuneration) the Directors resolve.(c)
    
    Subject to any agreement between the Company and a Secretary, the
Directors may remove or dismiss a Secretary at any time, with or without cause.(d)
    
    The Directors may revoke or vary the appointment of a Secretary.
 4.2
    
    Indemnity and insurance
 (a)
    
    To the extent permitted by law, the Company must indemnify each Relevant Officer
against:
 (i)
    
    a liability of that Person; and(ii)
    
    legal costs of that Person.
 8




---



##### 



(b)
    
    To the extent permitted by law, the Company may make a payment (whether
by way of advance, loan or otherwise) to a Relevant Officer in respect of Legal
Costs of that Person.(c)
    
    To the extent permitted by law, the Company must pay, or agree to pay, a
premium for a contract insuring a Relevant Officer against:
 (i)
    
    a liability of that Person; and(ii)
    
    legal costs of that Person.
 (d)
    
    To the extent permitted by law, the Company must enter into an agreement
or deed with:
 (i)
    
    a Relevant Officer; or(ii)
    
    a Person who is, or has been an officer of the
Company or a subsidiary of the Company,
 under which the Company will do the following:
 (iii)
    
    keep books of the Company and allow either or both
that Person and that Persons advisers access to those books on the terms
agreed;(iv)
    
    indemnify that Person against any liability of that
Person;(v)
    
    make a payment (whether by way of advance, loan or
otherwise) to that Person in respect of legal costs of that Person; and(vi)
    
    keep that Person insured in respect of any act or
omission by that Person while a Relevant Officer or an officer of the
Company or a subsidiary of the Company, on the terms agreed (including as
to payment of all or part of the premium for the contract of insurance).
 5.
    
    Powers of the Company and Directors5.1
    
    General powers
 (a)
    
    The management of the Fund shall vest in the Company.(b)
    
    Without limiting Rule 5.1(a), the Company may exercise in any manner
permitted by the Corporations Actany power which a public company limited by
guarantee may exercise under the Corporations Act.(c)
    
    The business of the Company is managed by or under the direction of the
Directors.(d)
    
    The Directors may exercise all the powers of the Company except any
powers that the Corporations Actor this Constitution requires the Company to
exercise in general meeting.
 5.2
    
    Execution of documents
 (a)
    
    If the Company has a common seal, the Company may execute a document if that
seal is fixed to the document and the fixing of that seal is witnessed by:
 (i)
    
    two Directors;(ii)
    
    a Director and a Secretary; and
 9




---



##### 



(iii)
    
    a Director and another Person appointed by the
Directors for that purpose.
 (b)
    
    The Company may execute a document without a common seal if the document
is signed by:
 (i)
    
    two Directors;(ii)
    
    a Director and a Secretary;(iii)
    
    a Director and another Person appointed by the
Directors for that purpose.
 (c)
    
    The Directors may resolve, generally or in a particular case, that any
signature on certificates for Membership may be affixed by mechanical or other
means.(d)
    
    Negotiable instruments may be signed, drawn, accepted, endorsed or
otherwise executed by or on behalf of the Company in the manner and by the Persons
as the Directors resolve.
 5.3
    
    Committees and delegates
 (a)
    
    The Directors may delegate any of their powers (including this power to
delegate) to a committee of Directors, a Director, an employee of the Company or any
other Person.(b)
    
    The Directors may revoke or vary any power delegated under Rule 5.3(a).(c)
    
    A committee or delegate must exercise the powers delegated in accordance
with any directions of the Directors.(d)
    
    The exercise of a power by the committee or delegate is as effective as
if the Directors exercised the power.(e)
    
    Rule 6 applies with the necessary changes to meetings of a committee of
Directors.
 6.
    
    Proceedings of Directors6.1
    
    Written resolutions of Directors
 (a)
    
    The Directors may pass a resolution without a meeting of the Directors being
held if all the Directors entitled to vote on the resolution assent to a document
containing a statement that they are in favour of the resolution set out in the
document.(b)
    
    Separate copies of the documents referred to in Rule 6.1(a) may be used
for assenting to by the Directors if the wording of the resolution and the statement
is identical in each copy.(c)
    
    A Director may signify assent to a document under this Rule 6.1 by
signing the document or by notifying the Company of the assent of the Director:
 (i)
    
    in a manner permitted by Rule 5.3; or(ii)
    
    by any technology including telephone.
 (d)
    
    Where a Director signifies assent to a document under Rule 6.1(c) other
than by signing the document, the Director must by way of confirmation sign the
document before or at the next meeting of Directors attended by that Director.
 10




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##### 



(e)
    
    The resolution the subject of a document under Rule 6.1(b) is not invalid
if a Director does not comply with Rule 6.1(d).
 6.2
    
    Meetings of Directors
 (a)
    
    The Directors may meet, adjourn and otherwise regulate their meetings as they
think fit.(b)
    
    A meeting of Directors may be held using any technology consented to by a
majority of the Directors.(c)
    
    The consent of a Director under Rule 6.2(b):
 (i)
    
    may be for all meetings of Directors or for any
number of meetings; and(ii)
    
    may only be withdrawn by that Director within a
reasonable period before a meeting of Directors.
 (d)
    
    If a meeting of Directors is held in two or more places linked together
by any technology:
 (i)
    
    a Director present at one of the places is taken to
be present at the meeting unless and until the Director states to the
Chairperson of the meeting that the Director is discontinuing her or her
participation in the meeting; and(ii)
    
    the Chairperson of that meeting may determine at
which place the meeting will be taken to have been held.
 6.3
    
    Who can call meetings of Directors
 (a)
    
    A Director may call a meeting of Directors at any time.(b)
    
    On request of any Director, a Secretary of the Company must call a
meeting of the Directors.
 6.4
    
    How to call meetings of Directors
 (a)
    
    Subject to this Constitution, a notice of a meeting of Directors must be given
to each Director, or an alternate Director appointed under Rule 6.7.(b)
    
    A notice of meeting of Directors:
 (i)
    
    must set out the place, date and time for the meeting
(and, if the meeting is to be held in two or more places, the technology
that will be used to facilitate this);(ii)
    
    must state the general nature of the business of the
meeting; and(iii)
    
    may be given in Person, by post or subject to the
Corporations Act, by a form of technology.
 (c)
    
    The Company must give not less than 48 hours notice of a meeting of
Directors, unless all Directors agree otherwise.(d)
    
    A Director may waive notice of a meeting of Directors by notice in
writing to the Company to that effect.
 11




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##### 



6.5
    
    QuorumThe quorum for a Board meeting is, if JHINV has appointed at least one Director, one
Director appointed by JHINV and, if the NSW Government has appointed at least one
Director, one Director appointed by the NSW Government provided that:
 (a)
    
    subject to Rule 6.5(b), if a quorum is not present at a meeting, the
meeting shall be reconvened by notice to a date no less than 24 hours after the date
of the original meeting (or such time as is reasonable in cases of emergency) and
the quorum for such a reconvened meeting of which all Directors have been given
notice in writing shall be at least two Directors; and(b)
    
    if a Special Default occurs or an Insolvency Event occurs in relation to
JHINV occurs, so long as and so long as that Special Default or Insolvency Event
remains in existence, and the NSW Government gives to JHINV a notice under the Final
Funding Agreement that clause 16.3(b) of the Final Funding Agreement is to apply,
the quorum will be two Directors appointed by the NSW Government.
 6.6
    
    AdjournmentSubject always to Rule 6.5, if a quorum is not present within 1 hour after the time
appointed for a meeting, the meeting will stand adjourned to:
 (a)
    
    if Rule 6.5(a) applies, the time specified in that Rule; or(b)
    
    in any other case the same time and place seven days after the meeting or to
another day, time and place determined by those Directors present.
 6.7
    
    Alternate DirectorsEach Director may appoint, by Notice in writing to the Company, an alternate to act in
his or her place. Except in cases of emergency, at least 5 Business Days notice must be
given of any proposed appointment of an alternate Director pursuant to this Rule 6.7.
 6.8
    
    Chief Executive OfficerThe Board will be responsible for the selection, appointment and termination of the
Chief Executive Officer of the Company and the terms on which he or she is engaged from time
to time.
 6.9
    
    Chairperson
 (a)
    
    The Chairperson must (if present within 15 minutes after the time appointed for
the holding of the meeting and will to act) chair each meeting of Directors.(b)
    
    If:
 (i)
    
    there is no Chairperson; or(ii)
    
    the Chairperson is not present within 15 minutes
after the time appointed for the holding of a meeting of Directors; or(iii)
    
    the Chairperson is present within that time but is
not willing to chair all or part of that meeting,
 the Directors present must elect one of themselves to chair all or part of the
meeting of Directors.
 (c)
    
    A Person does not cease to be a Chairperson of Directors if that Person
retires as a
 12




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##### 



Director at a meeting of Members and is re-elected as a Director at that meeting.
 6.10
    
    Resolutions of Directors
 (a)
    
    A resolution of Directors is passed if more votes are cast in favour of the
resolution than against it.(b)
    
    Subject to Rules 6.10(c) and 6.10(e) and except as otherwise specified in
the Final Funding Agreement, each Director has one vote at any meeting of the
Directors.(c)
    
    If a Director representative of an Appointor and his or her alternate
Director is absent, the remaining Director representatives of that Appointor shall
be entitled to jointly exercise the absent Directors vote.(d)
    
    Subject to Rule 6.10(e), in case of an equality of votes on a resolution
at a meeting of Directors, the Chairperson of that meeting has a casting vote on
that resolution in addition to any vote the Chairperson has in his or her capacity
as a Director in respect of that resolution.(e)
    
    If a Special Default occurs within the meaning of clause 16.2 of the
Final Funding Agreement, then the total number of votes that may be cast at any
Board meeting by the Directors (including the Chairperson) appointed by JHINV or one
of its subsidiaries present at the meeting shall be one less than the number of
votes that may be cast by the number of votes that may be cast by the number of
Directors appointed by the NSW Government present at that meeting.
 6.11
    
    Interests of Appointor
 (a)
    
    Subject always to a Directors obligations under the Trust Deed, the Constitution, statute
or otherwise at law, a Director may take into account the views of that Directors Appointor
and may act on the wishes of that Appointor in performing any of his or her duties or
exercising any power, right or discretion as a Director in relation to the Company.(b)
    
    A Director may provide that Directors Appointor with copies of all documents, Board Papers
and other material which come into the possession of the Director in that capacity and may
disclose to and discuss with the Appointor all information to which the Director becomes privy
in that capacity.
 7.
    
    Notices7.1
    
    Notice to MembersThe Company may give notice to a Member:
 (i)
    
    in Person;(ii)
    
    by sending it by post to the address of the Member in the Register or the
alternative address (if any) nominated by that Member; or(iii)
    
    by sending it to the fax number or electronic address (if any) nominated
by that Member.
 7.2
    
    Notice to DirectorsThe Company may give notice to a Director:
 (a)
    
    in Person;(b)
    
    by sending it by post to the usual residential address of that Person or
the alternative
 13




---



##### 



address (if any) nominated by that Person;(c)
    
    by sending it to the fax number or electronic address (if any) nominated
by that Person; or(d)
    
    by any other means agreed between the Company and that Person.
 7.3
    
    Notice to the CompanyA Person may give notice to the Company:
 (a)
    
    by leaving it at the registered office of the Company;(b)
    
    by sending it by post to the registered office of the Company;(c)
    
    by sending it to the fax number at the registered office of the
Company;or(d)
    
    by any other means permitted by the Corporations Act.
 7.4
    
    Time of serviceNotice is sent by the sender and received by the receiver;
 (i)
    
    if the notice is hand delivered, upon delivery to the receiving party;(ii)
    
    if the notice is sent by facsimile, upon the successful completion of the
relevant transmission;(iii)
    
    if the notice is sent by registered mail within Australia, 2 Business
Days after the registration of the notice of posting;(iv)
    
    if the notice is sent by ordinary mail within Australia, 3 Business Days
from and including the date of postage.
 7.5
    
    SignaturesThe Directors may decide, generally or in a particular case, that a notice given by
the Company be signed by mechanical or other means.8.
    
    Distributions from the CompanyIf, upon a winding up of the Company, there remains any property whatsoever after
all debts and liabilities of the Company have been satisfied, the liquidator must give or
transfer such surplus property equally to another incorporated entity whose constitution
contains similar objectives and a similar restriction to this Rule.9.
    
    Inconsistency
 (a)
    
    In the event, and to the extent, of any inconsistency between the provisions of
the Final Funding Agreement and the terms of this Constitution, the Final Funding
Agreement shall prevail.(b)
    
    In the event, and to the extent, of any inconsistency between the
provisions of the Trust Deed and the terms of this Constitution, the Trust Deed
shall prevail.
 14




---



##### 



Schedule 1  Definitions and Interpretations
 1.
    
    DefinitionsIn this Constitution:Appointormeans each Person described in clauses 5.1 to 5.3, and clause 16.3 of the
Final Funding Agreement who is entitled to appoint one or more Directors.Asbestos means the fibrous form of those mineral silicates that belong to the
serpentine or amphibole groups of rock forming minerals, including actinolite, amosite
(brown asbestos), anthophyllite, chrysotile (white asbestos), crocidolite (blue asbestos)
and tremolite.Boardmeans the board of Directors.Board Papers means
 (a)
    
    in relation to a Director, all Documents circulated by the Company to him
or her acting in that capacity.(b)
    
    all Documents tabled at a meeting of the Directors or otherwise made or
physically available to Directors at such meetings, including, without limitation,
periodic board papers, submissions, minutes, letters, board committee and
sub-committee papers.
 Business Daymeans a day (not being a Saturday or a Sunday) on which banks are open for
general banking business in Sydney.Chairperson means the chairperson of the Board from time to time.Claimantmeans an individual (or legal Personal representative of an individual) who
makes a Personal Asbestos Claim or a Marlew Claim.Claims Legal Costshas the meaning given to it under the Final Funding Agreement.Claims Management Agreementhas the meaning given to it in the Trust Deed.Controlled Entitieshas the meaning given to it under the Final Funding Agreement.Corporations Actmeans the Corporations Act 2001.Companymeans Asbestos Injuries Compensation Fund Limited.Directorsmeans the Directors of the Company for the time being, and if the Company has
only one Director, that Director.Documentmeans:
 (a)
    
    anything on which there is writing;(b)
    
    anything on which there are marks, figures, symbols or perforations
having a meaning for Persons qualified to interpret them;(c)
    
    anything from which sounds, images or writing can be reproduced with or
without the aid of anything else; and(d)
    
    a map, plan, drawing or photograph.
 Final Funding Agreementmeans the Final Funding Agreement in relation to the provision
of long term funding for compensation arrangements for certain victims of Asbestos
related
 15




---



##### 



disease is Australia between James Hardie Industries NV, the Performing Subsidiary and
the State of New South Wales.
 Fundmeans the trust known as the Asbestos Injury Compensation Fund to be established
pursuant to the Trust Deed.Funding Obligationmeans each obligation of the Performing Subsidiary to make a Funding
Payment.Funding Paymentsmean:
 (a)
    
    the Initial Funding payable under clause 9.2 of the Final Funding
Agreement (which, for the avoidance of doubt, includes the Additional Payment as
defined therein);(b)
    
    the Annual Payments payable under clause 9.3 of the Final Funding
Agreement; and(c)
    
    any Final Payment payable under clause 9.9 of the Final Funding
Agreement,
 and Funding Payment means any of those payments.Insolvency Event has the meaning given to it in the Final Funding Agreement.JHINVmeans James Hardie Industries NV, ARBN 097 829 895, a limited liability company
incorporated in the Netherlands and having its registered office at
Atrium, Unit 04-07 Strawinskylaan 3077, 1077ZX Amsterdam, The Netherlands (with its
Australian registered office at Level 3, 22 Pitt Street, Sydney in the State of New South
Wales).JHINV Contributions means the payments to be made by JHINV or the Performing Subsidiary
under clause 9 of the Final Funding Agreement.JHINV Grouphas the meaning given to it in the Final Funding Agreement.JHINV Guaranteemeans the deed of guarantee by JHINV in the form set out in Annexure 5
of the Final Funding Agreement.Liable Entitiesmeans Amaca Pty Ltd, Amaba Pty Ltd and ABN 60 Pty Ltd.Marlew Claimhas the meaning given to it in the Final Funding Agreement.Membermeans a Person whose name is entered in the Register as a Member of the Company.NSW Governmentmeans the State of New South Wales.Payable Liabilityhas the meaning given to it in the Final Funding Agreement.Performing Subsidiarymeans LGTDD Pty Ltd or if a subsidiary of JHINV other than that
entity is nominated under clause 6.2 of the Final Funding Agreement to perform the
obligations described in clauses 6 and 9 of the Final Funding Agreement, and each of
JHINV and that subsidiary has complied with clause 6.2 of the Final Funding Agreement,
that subsidiary.Personincludes any general partnership, limited partnership, corporation, limited
liability company, joint venture, trust, business trust, governmental agency,
co-operative, association, individual or other entity, and the heirs, executors,
administrators, legal representatives, successors and assigns of such a person as the
context may require.
 16




---



##### 



Personal Asbestos Claimhas the meaning given to it in the Final Funding Agreement.Prescribed Noticemeans 21 days or any shorter period of notice for a meeting allowed
under the Corporations Act.Registermeans the register of Members kept under the Corporations Actand, where
appropriate, includes any branch register.Registered Officemeans the Companys registered office from time to time as disclosed
in the records of the Company with the Australian Securities & Investments Commission.Related Agreementsmeans documents ancillary to the Final Funding Agreement listed in
Schedule 1 to the Final Funding Agreement.Relevant Officermeans a Person who is, or has been, a Director or Secretary.Rulesmeans these rules as may be amended from time to time.Secretarymeans a secretary of the Company for the time being.Special Defaultmeans a breach or default of a kind described in clause 16.2 of the
Final Funding Agreement.SPF Funded Liabilityhas the meaning given to it in the Final Funding Agreement.Transaction Legislation has the meaning given to it in the Principal Deed.Trust Deed means the trust deed for the Fund to be entered into in the form set out in
the Final Funding Agreement.2.
    
    Interpretation
 (d)
    
    In this Constitution:
 (i)
    
    a Member is taken to be present at a meeting of
Members if the Member is present in Person or by proxy, attorney or
representative; and(ii)
    
    a reference to a notice or document in writing
includes a notice or document given by fax or another form of written
communication.
 (e)
    
    In this Constitution, headings are for convenience only and do not affect
interpretation, and unless the context indicates a contrary intention:
 (i)
    
    words importing the singular include the plural (and
vice versa);(ii)
    
    words indicating a gender include every other gender;(iii)
    
    where a word or phrase is given a defined meaning,
any other part of speech or grammatical form of that word or phrase has a
corresponding meaning; and(iv)
    
    the word includes in any form is not a word of
limitation.
 (f)
    
    Unless the context indicates a contrary intention, in this Constitution:
 (i)
    
    a reference to a Rule or a Schedule is to a rule or a
schedule of this Constitution;(ii)
    
    a reference in a Schedule to a paragraph is to a
paragraph of that Schedule;
 17




---



##### 



(iii)
    
    a Schedule is part of this Constitution; and(iv)
    
    a reference to this Constitution is to this
Constitution (and where applicable any of its provisions) as modified or
repealed from time to time.
 (g)
    
    Unless the context indicates a contrary intention, in this Constitution,
a reference to any statute or to any statutory provision includes any statutory
modification or re-enactment of it or any statutory provision substituted for it,
and all ordinances, by-laws, regulations, rules and statutory instruments (however
described) issued under it.(h)
    
    Unless the context indicates a contrary intention, in this Constitution:
 (i)
    
    an expression in an Rule that deals with a matter
dealt with by a provision of the Corporations Acthas the same meaning as
in that provision; and(ii)
    
    an expression in an Rule that is defined in section 9
of the Corporations Acthas the same meaning as in that provision.
 3.
    
    Exercise of powersWhere this Constitution confers a power or imposes a duty, then, unless the contrary
intention appears, the power may be exercised and the duty must be performed from time to
time as the occasion requires.4.
    
    Severing invalid provisionsIf at any time any provision of this Constitution is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, that does not affect or
impair:
 (a)
    
    the legality, validity or enforceability in that jurisdiction of any
other provision of this Constitution; or(b)
    
    the legality, validity or enforceability under the law of any other
jurisdiction of that or any other provision of this Constitution.
 Date:
2005
 Signed
 Authorised
signatory Authorised signatory
 18




---



##### 



Signing Page
 Signed
   /s/ Morris Iemma
 Signed
  /s/ Meredith Hellicar

Meredith Hellicar
    
    
    
    /s/ Russell Chenu

Russell ChenuChairman
    
    
    
    Authorised Officer
 Signedfor and on behalf ofLGTDD Pty Limited by itsduly authorised attorney/s/ Russell ChenuRussell Chenu




---



##### 



153 Annexure 1  Deed of Accession
 DEED OF ACCESSION
 DEED
 1.
    
    ASBESTOS INJURIES COMPENSATION FUNDof [ADDRESS] (Acceding Party)2.
    
    James Hardie Industries N.V.ARBN 097 829 895 incorporated in the Netherlands and having its
registered office at Atrium, 8th Floor, Strawinskylaan 3077, 1077ZX Amsterdam, The
Netherlands, Amsterdam in the Netherlands (with its Australian principal office at Level 3, 22
Pitt Street, Sydney in the State of New South Wales) (JHINV)3.
    
    [                     ] (Performing Subsidiary)4.
    
    The State of New South Wales (NSW Government)5.
    
    [Any other parties subsequently joined as a party to the deed by execution of a Deed of
Accession.]
 [add to this, if applicable] the
Existing Parties
 RECITAL
 Principal Deed
 OPERATIVE PART
 1.
    
    Acceding Party to be bound




---



##### 



154  2.
    
    Existing Parties
  3
    
    Representations and warranties
  (a)
    
    the statements with respect to the Performing Subsidiary set out in Part 1of Schedule 2of
the Principal Deed, as amended by replacing reference to the Performing Subsidiary with the
Continuing Parties;(b)
    
    the trust to which it is a trustee it has been validly created and is validly existing;(c)
    
    it is the sole trustee of the trust on behalf of which it has entered into this deed;(d)
    
    there has been no resolution or direction to terminate the trust on behalf of which it has
entered into this deed, nor to remove it as trustee of that trust; and(e)
    
    it has the power to enter into this deed as trustee of the trust on behalf of which it has
entered into this deed.(f)
    
    On the date of this deed, the Acceding Party has provided to the NSW Government, and the NSW
Government acknowledges receipt, of an officers certificate signed by the chief financial
officer of the Substitute Party in the form set out in Part 2of Schedule 2).4.
    
    Address for Notices
 clause 29
 [                     ]




---



##### 



155 
 5.
    
    Governing law
  6.
    
    Interpretation
  EXECUTED
 [EXECUTION CLAUSES]




---



##### 



156 Annexure 2  Summary of Final Funding Agreement and Related Agreements




---



##### 



Annexure 3  Trust Deed
 [     ]
(Settlor)
 Asbestos Injuries Compensation Fund Limited (Trustee)
 Asbestos Injuries
 Compensation Fund
 Trust Deed
 [Name to
be confirmed]




---



##### 



1.
    
    DEFINITIONS AND INTERPRETATION
    
    
    21.1 Definitions
    
    
    21.2 General Interpretation
    
    
    112.
    
    APPOINTMENT AND DECLARATION OF TRUST
    
    
    122.1 Acknowledgement
    
    
    122.2 Establishment of Fund and Appointment
    
    
    122.3 Acceptance and Declaration
    
    
    122.4 Name and Location of Fund
    
    
    133.
    
    PURPOSE
    
    
    134.
    
    TRUSTEE
    
    
    154.1 The Trustee
    
    
    154.2 General powers of the Trustee
    
    
    154.3 General Administration of Fund Property
    
    
    154.4 Control of Liable Entities
    
    
    164.5 Contracting and Investing powers
    
    
    164.6 Powers of Delegation and Appointment
    
    
    184.7 Compliance with Transaction Legislation
    
    
    194.8 Limitations on Powers of the Trustee
    
    
    194.9 Exercise of Discretion
    
    
    204.10 Compliance with the Final Funding Agreement
    
    
    204.11 Trustees standard of duty
    
    
    204.12 Reliance on Advice
    
    
    204.13 Remuneration
    
    
    215.
    
    LIABILITY
    
    
    216.
    
    INDEMNITY AND INSURANCE
    
    
    217.
    
    APPOINTMENT OF NEW TRUSTEE
    
    
    238.
    
    THIRD PARTIES
    
    
    249.
    
    FAILURE OF THE TRUSTEE AND TERMINATION OF THE FUND
    
    
    2410.
    
    AMENDMENTS
    
    
    2411.
    
    FINANCES OF THE FUND
    
    
    2412.
    
    ACTION BY THE TRUSTEE
    
    
    2512.1 Actions through Board of Directors
    
    
    2512.2 Compliance with Tax Exemption
    
    
    2513.
    
    CERTIFICATES
    
    
    2614.
    
    GOVERNING LAW
    
    
    2615.
    
    NO ENFORCEMENT BY THIRD PARTIES
    
    
    26




---



##### 



Asbestos Injuries (JH) Compensation  Fund Trust Deed
 Date
    
    
    2005Parties
    
    
    1.
    
    

[     ]
(ACN     ) of [*] (the
Settlor) [JHINV to confirm]2.
    
    
    [AICF] Limited (ABN[*])
a company limited by guarantee of [*] (the
Trustee)Recitals
    
    
    A.
    
    
    JHINV, the NSW Government and the Performing Subsidiary have
entered into a long term funding agreement (Final Funding
Agreement) intended to ensure that funding is made
available by JHINV and/or its subsidiaries to compensate, on the
basis set out in the Final Funding Agreement, proven current and
future Australian Claimants against the Liable Entities.B.
    
    
    In accordance with the Final Funding Agreement, the Settlor
wishes to establish a trust fund which will constitute the Fund.C.
    
    
    The Settlor has paid the Settled Sum to the Trustee before
the date of this Deed, and the Trustee has agreed to be the
trustee of the Fund and to hold the Settled Sum and the other
Fund Property on trust for the Fund Purpose in accordance with
this Deed.D.
    
    
    Upon the establishment of the Fund, it is contemplated that
the parties to the Final Funding Agreement will procure that the
Trustee, by executing a Deed of Accession, will become a party
to the Final Funding Agreement to give effect to the intention
and agreement of the relevant parties referred to in the
preceding paragraphs.E.
    
    
    It is the intention of the parties to the Final Funding
Agreement that all of the issued shares in the Liable Entities
will be transferred to the Trustee to hold on trust for the Fund
Purpose and that the Trustee manage itself or through one or
more of the Liable Entities, or otherwise cause to be managed,
the response to all Payable Liabilities for itself or for or on
behalf of the Liable Entities.F.
    
    
    The NSW Government is to pass the Transaction Legislation,
inter alia, to validate the existence of the Fund, and to confer
certain powers and responsibilities on the Trustee.




---



##### 



- 2 - IT IS AGREED
 1.
    
    DEFINITIONS AND INTERPRETATION1.1
    
    DefinitionsIn this Deed (including the Recitals) unless the context requires otherwise, terms defined
in the Final Funding Agreement or in the Transaction Legislation bear their corresponding
meaning, and:ABN 60means ABN 60 Pty Limited (ABN 60 000 009 263).Amabameans Amaba Pty Limited (ABN 98 000 387 342).Amacameans Amaca Pty Limited (ABN 49 000 035 512).Annual Contribution Amountmeans the amount specified in clause 9.4 of the Final Funding
Agreement.Annual Paymentmeans for each year, the payment to be made pursuant to clause 9.3 of the
Final Funding Agreement.Appointeemeans any executive, director or employee of the Trustee appointed to the board of
directors or any other governing body of an Investee.Appointormeans each Person entitled to appoint one or more Directors.Approved Actuarymeans an actuarial firm which:
 (a)
    
    has been appointed in accordance with clause 5.15 of the Final Funding
Agreement and which nominates a principal who is an approved actuary under the
Insurance Act 1973 or who has qualifications under equivalent legislation of another
relevant jurisdiction;(b)
    
    has relevant and substantive experience and expertise in Asbestos-related
liability provisioning appropriate to undertake the determination referred to in clause
14.4 of the Final Funding Agreement;(c)
    
    has no interest or duty which conflicts or may conflict with his functions as
contemplated under this deed as the Approved Actuary; and(d)
    
    is not affiliated with the accounting firm, performing the role of Approved
Auditor during the term of the Approved Actuarys appointment,
 or, where the circumstances set out in clause 5.15(f) of the Final Funding Agreement apply,
an actuarial firm determined in accordance with that clause.Approved Auditormeans the auditor of the Trustee to be appointed by the Trustee in
accordance with clause 5.12 of the Final Funding Agreement.Asbestosmeans the fibrous form of those mineral silicates that belong to the
serpentine or amphibole groups of rock-forming minerals, including actinolite, amosite
(brown asbestos), anthophyllite, chrysotile (white asbestos), crocidolite (blue asbestos)
and tremolite.




---



##### 



- 3 - 
 Asbestos Mining Activitieshas the meaning given in the Marlew Legislation.Audited Financial Statementsmeans, in respect of a Person and a Financial Year the audited
consolidated financial statements of that Person for that Financial Year prepared in
accordance with the following generally accepted accounting principles (GAAP), consistently
applied throughout that Financial Year:
 (a)
    
    where that Person is Listed at the time the relevant audit report is signed, the
generally accepted accounting principles used in that Persons published financial
reports; or(b)
    
    where that Person is not Listed at that time and paragraph (c) does not apply, US
GAAP or such other GAAP as is commonly applied by multinational companies at that time
in respect of their financial statements; or(c)
    
    where that Person is not Listed at that time and it and its subsidiaries
operates wholly or predominantly in one jurisdiction, the generally accepted accounting
principles of that jurisdiction.
 Australiahas the meaning given in Section 17 of the Acts Interpretation Act
1901(Cth), as in force at the date of this deed.Claimantmeans an individual (or legal personal representative of an individual) who
makes a Personal Asbestos Claim or a Marlew Claim.Claims Legal Costsmeans all costs, charges, expenses and outgoings incurred or
expected to be borne by the Trustee or the Liable Entities in respect of legal advisors,
other advisors, experts, Court proceedings and other dispute resolution methods in
connection with Personal Asbestos Claims and Marlew Claims but in all cases excluding any
costs included as a component of calculating a Proven Claim.Claims Management Agreementmeans an agreement between the Trustee and a Liable
Entity whereby the Liable Entity agrees that the Trustee or a Person designated by the
Trustee will manage all claims against the Liable Entity in accordance with the provisions
of this Deed, the Final Funding Agreement and the Transaction Legislation.Commencement Datehas the meaning given to that term in clause 1 of the
Prinicpal Deed.Commonwealthmeans the Commonwealth of Australia.Concurrent Wrongdoerin relation to a personal injury or death claim for damages
under common law or other law (disregarding any law which comes into force in breach of
clause 13 of the Final Funding Agreement and which breach has been notified to the NSW
Government under clause 16.5 of the Final Funding Agreement), means a Person whose acts or
omissions, together with the acts or omissions of one or more Liable Entities or Marlew or
any member of the JHINV Group (whether or not together with any
other Persons) caused, independently of each other or jointly, the damage or loss to another
Person that is the subject of that claim.Constitutionmeans the constitution of the Trustee.Constitutional Provisionsmeans the clauses required to be included in the Constitution, as
set out in the Schedule to this Deed.




---



##### 



- 4 - 
 Contribution Claimmeans a cross-claim or other claim under common law or other law
(disregarding any law which comes into force in breach of clause 13 of the Final Funding
Agreement and which breach has been notified to the NSW Government under clause 16.5 of the
Final Funding Agreement):
 (a)
    
    for contribution by a Concurrent Wrongdoer against a Liable Entity or a member
of the JHINV Group in relation to facts or circumstances which give rise to a right of
a Person to make a Personal Asbestos Claim or a Marlew Claim; or(b)
    
    by another Person who is entitled under common law (including by way of
contract) to be subrogated to such a first mentioned cross-claim or other claim,
 provided that any such claim of the kind described in clause 13.7 of the Final Funding
Agreement shall be subject to the limits contained in that clause.Controlled Entitymeans, in respect of a Person, another Person in respect of which the
first-mentioned Person is required to consolidate in its Audited Financial Statements but,
in the case of JHINV, does not include any Liable Entity or the Trustee. For the avoidance
of doubt, JHINV is not a Controlled Entity of JHINV.Corporations Actmeans the Corporations Act 2001(Cth).Courtmeans a court or tribunal in Australia having jurisdiction to hear and determine
common law personal injury and death claims arising from exposure to Asbestos.Cross Guaranteemeans any guarantee or indemnity (or other covenant to secure
satisfaction of any payment or obligation) given by a Controlled Entity of JHINV to secure
satisfaction of any payment or obligation of any Controlled Entity of JHINV to a Lender
which is entitled or becomes entitled to the benefit of the Intercreditor Deeds in
accordance with clause 2.2of that deed.Deed of Accessionmeans a deed of accession in the form set out in Annexure 1 to the
Final Funding Agreement.Directormeans a director of the Trustee appointed in accordance with clause 5 or clause
16.3 of the Final Funding Agreement.Excluded Marlew Claimmeans a Marlew Claim:
 (a)
    
    covered by the indemnities granted by the Minister of Mineral Resources under
the deed between the Minister, Fuller Earthmoving Pty Limited and James Hardie
Industries Limited dated 11 March 1996; or(b)
    
    by a current or former employee of Marlew in relation to an exposure to
Asbestos in the course of such employment to the extent:
 (i)
    
    the loss is recoverable under a Workers Compensation Scheme or
Policy; or




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##### 



- 5 - 
 (ii)
    
    the Claimant is not unable to recover damages from a Marlew
Joint Tortfeasor in accordance with the Marlew Legislation;
 (c)
    
    by an individual who was or is an employee of a person other than Marlew
arising from exposure to Asbestos in the course of such employment by that other person
where such loss is recoverable from that person or under a Workers Compensation Scheme
or Policy; or(d)
    
    in which another defendant (or its insurer) is a Marlew Joint Tortfeasor from
whom the plaintiff is entitled to recover compensation in proceedings in the Dust
Diseases Tribunal, and the Claimant is not unable to recover damages from that Marlew
Joint Tortfeasor in accordance with the Marlew Legislation.
 Final Paymentmeans the payment referred to in clause 9.9 of the Final Funding
Agreement.Final Funding Agreementmeans the deed of that name dated 1 December 2005 between the
initial parties JHINV, the Performing Subsidiary and the NSW Government.Financial Yearmeans a year ending on 31 March, or if there is any change from time
to time to the Financial Year of the JHINV Group, the twelve-month period as ends on the new
end date adopted by JHINV except that the first such Financial Year after that change shall
be a period of not less than six months and not greater than 18 months ending on the new end
date.First Release Billmeans the James Hardie (Civil Liability) Bill2005(NSW) as
initialled by the parties to the Final Funding Agreement for the purposes of identification.Fundmeans the trust constituted by this Deed (referred to as the Fund in the Final
Funding Agreement).Fund Accountmeans a bank account within New South Wales to be designated the Asbestos
Injuries Compensation Fund Account (referred to as the Fund Account in the Final Funding
Agreement).Fund Propertymeans the assets referred to in clause 2.3.Fund Purposemeans the purpose set out in clause 3.Funding Obligationsmeans each obligation of the Performing Subsidiary to make a Funding
Payment.Funding Paymentsmean:
 (a)
    
    the Initial Funding payable under clause 9.2 of the Final Funding Agreement
(which, for the avoidance of doubt, includes the Additional Payment as defined
therein);(b)
    
    the Annual Payments payable under clause 9.3 of the Final Funding Agreement;
and




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##### 



- 6 - 
 (c)
    
    any Final Payment payable under clause 9.9 of the Final Funding Agreement,
 and Funding Paymentmeans any of those payments.Initial Fundinghas the meaning given to that term in clause 1 of the Final Funding
Agreement.Insolvency Eventmeans in respect of a Person, the occurrence in respect of that Person of
any one or more events referred to in paragraphs (a) to (b) of the definition of
Insolvent.A Person is Insolventif the Person:
 (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 seeking an order for a
suspension of payments (surseance van betaling);(c)
    
    files, or consents by answer or otherwise to the filing against it of, a
petition for relief or insolvent reorganisation or insolvent arrangement or any other
petition in bankruptcy, for liquidation or to take advantage of any bankruptcy,
insolvency, insolvent reorganisation, insolvent moratorium or other similar law of any
jurisdiction (including, without limitation, a filing by the Person under Chapter 7 or
Chapter 11 of the US Bankruptcy Code, provided that where the filing is a filing under
Chapter 11 of that Code, the Person:
 (i)
    
    is at the time of filing unable to pay its debts generally as
and when they become due; or(ii)
    
    in the case of JHINV, after it makes such a filing, fails to
pay a JHINV Contribution or other amount under the JHINV Guarantee when such
payment would (but for the moratorium granted as a result of that filing) have
been due for 30 days after that due date and also provided that in any such
filing under Chapter 11 of that Code a Person is Insolvent no later than the
earliest date as of which creditors may vote on any matter or accept or reject
a plan of reorganisation;
 (d)
    
    makes an assignment for the benefit of its creditors generally;(e)
    
    consents to the appointment of a custodian (not being a nominee for the
person), receiver, receiver and manager, trustee or other officer with similar powers
with respect to it or with respect to a substantial part of its property;(f)
    
    consents to the appointment of an insolvency administrator or such an
insolvency administrator is appointed and that appointment is not terminated within 28
days;(g)
    
    is adjudicated as insolvent or to be liquidated, in each case, by a court of
competent jurisdiction; or(h)
    
    is subject to a Wind-Up Event;




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##### 



- 7 - 
 and Insolvencyhas a corresponding meaningIntercreditor Deedsmeans the deeds substantially in the form set out in Annexures 7A and 7B
to the Final Funding Agreement, as may be amended with the agreement of JHINV and the NSW
Government (in each case acting reasonably) as the result of the review by, and negotiations
with JHINVs existing bank Lenders.Investeemeans any entity in which the Fund has made or wishes to make an Investment.Investmentmeans an investment by the Trustee.Irrevocable Power of Attorneymeans the deed in the form set out at Annexure 9 of the Final
Funding Agreement.JHINVmeans James Hardie Industries NV (ARBN 097 829 895) incorporated in the Netherlands
and having its registered office at Atrium, Unit 04-07, Strawinskylaan 3077, 1077ZX
Amsterdam, The Netherlands (with its Australian principal office at Level 3, 22 Pitt Street,
Sydney in the State of New South Wales).JHINV Contributionsmeans the payments to be made by JHINV or the Performing Subsidiary
under clause 9 of the Final Funding Agreement.JHINV Groupmeans JHINV and its Controlled Entities from time to time, excluding the Trustee
and any of the Liable Entities, if they are or become such Controlled Entities.JHINV Guaranteemeans the deed set out in the form of Annexure 5 of the Final Funding
Agreement.Liable Entitiesmeans Amaca, Amaba and ABN 60.Marlewmeans the company registered under the Corporations Actas Marlew Mining Pty Limited
(ACN 000 049 650) that was formerly called Asbestos Mines Pty Limited and includes any
successor to or continuation of that company.Marlew Claimmeans, subject to clause 13.7 of the Final Funding Agreement, a claim which
satisfies one of the following paragraphs and which is not an Excluded Marlew Claim:
 (a)
    
    any present or future personal injury or death claim by an individual or the
legal personal representative of an individual for damages under common law or other
law (disregarding any law which comes into force in breach of clause 13 of the Final
Funding Agreement and which breach has been notified
to the NSW Government under clause 16.5 of the Final Funding Agreement) which:
 (i)
    
    arose or arises from exposure to Asbestos in the Baryulgil
region from Asbestos Mining Activities at Baryulgil conducted by Marlew,
provided that:
 (A)
    
    the individuals exposure to Asbestos occurred
wholly within Australia; or




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##### 



- 8 - 
 (B)
    
    where the individual has been exposed to
Asbestos both within and outside Australia, the amount of damages
included in the Marlew Claim shall be limited to the amount
attributable to the proportion of the exposure which caused or
contributed to the loss or damage giving rise to the Marlew Claim which
occurred in Australia;
 (ii)
    
    is commenced in New South Wales in the Dust Diseases Tribunal; and(ii)
    
    is or could have been made against Marlew had Marlew not been
in external administration or wound up, or could be made against Marlew on the
assumption (other than as contemplated under the Marlew legislation) that
Marlew will not be in the future in external administration;
 (b)
    
    any claim made under compensation to relatives legislation by a relative of a
deceased individual (or personal representative of such a relative) or (where permitted
by law) the legal personal representative of a deceased individual in each case where
the individual, but for such individuals death, would have been entitled to bring a
claim of the kind described in paragraph (a); or
 (c)
    
    a Contribution Claim relating to a claim described in paragraphs (a) or (b).
 Marlew Joint Tortfeasormeans any Person who is or would be jointly and severally liable
with Marlew in respect of a Marlew Claim, had Marlew not been in external administration or
wound up, or on the assumption other than as contemplated in the Marlew legislation that
Marlew will not in the future, be in external administration or wound up.Marlew legislationmeans the legislation set out in Part 4 of the First Release Bill.NSW Government Auditormeans an auditor engaged in accordance with and for the purposes set
out in clause 5.13 of the Final Funding Agreement.Operating Expensesmeans the reasonable operating costs, expenses and Taxes of the Trustee
or Liable Entities of conducting the activities referred to in clause 4.2 of the Final
Funding Agreement but excludes any Claims Legal Costs.Payable Liabilitymeans:
 (a)
    
    any Proven Claim (whether arising before or after the date of this deed);(b)
    
    Operating Expenses;(c)
    
    Claims Legal Costs;(d)
    
    any liability of a Liable Entity to the Trustee, however arising, in respect
of any amounts paid by the Trustee in respect of any liability or otherwise on behalf
of the Liable Entity;(e)
    
    any pre-commencement claim (as defined in the Transaction Legislation)
against a Liable Entity;




---



##### 



- 9 - 
 (f)
    
    if regulations are made pursuant to section 30 of the Transaction
Legislation and if and to the extent the Trustee and JHINV notify the NSW Government
that any such liability is to be included in the scope of Payable Liability, any
liability of a Liable Entity to pay amounts received by it from an insurer in respect
of a liability to a third party incurred by it for which it is or was insured under a
contract of insurance entered into before the date on which the Transaction Legislation
receives the Royal Assent; and(g)
    
    Recoveries within the meaning and subject to the limits set out in clause
13.7 of the Final Funding Agreement,
 but in the cases of paragraphs (a), (c) and (e) excludes any such liabilities or claims to
the extent that they have been recovered or are recoverable under a Workers Compensation
Scheme or Policy.Performing Subsidiarymeans LGTDD Pty Limited or, if a subsidiary of JHINV other than that
entity is nominated under clause 6.2 of the Final Funding Agreement to perform the
obligations described in clauses 6 and 9 of the Final Funding Agreement and each of JHINV
and that subsidiary has complied with clause 6.2 of the Final Funding Agreement, that
subsidiary.Personincludes any general partnership, limited partnership, corporation, limited liability
company, joint venture, trust, business trust, governmental agency, co-operative,
association, individual or other entity, and the heirs, executors, administrators, legal
representatives, successors and assigns of such a person as the context may require.Personal Asbestos Claimmeans subject to clause 13.7 of the Final Funding Agreement:
 (a)
    
    any present or future personal injury or death claim by an individual or the
legal personal representative of an individual, for damages under common law or under
other law (disregarding any law which comes into force in breach of clause 13 of the
Final Funding Agreement and which breach has been notified to the NSW Government under
clause 16.5 of the Final Funding Agreement) which:
 (i)
    
    arises from exposure to Asbestos occurring in Australia, provided that:
 (A)
    
    the individuals exposure to Asbestos occurred
wholly within Australia; or(B)
    
    where the individual has been exposed to
Asbestos both within and outside Australia, damages included in the
Personal
Asbestos Claim shall be limited to the amount attributable to the
proportion of the exposure which caused or contributed to the loss
or damage giving rise to the Personal Asbestos Claim which occurred
in Australia;
 (ii)
    
    is made in proceedings in an Australian court or tribunal; and
 is made against all or any of the Liable Entities or any member of the JHINV Group
from time to time;




---



##### 



- 10 - 
 (b)
    
    any claim made under compensation to relatives legislation by a relative of a
deceased individual (or personal representative of such a relative) or (where permitted
by law) the legal personal representative of a deceased individual in each case where
the individual, but for such individuals death, would have been entitled to bring a
claim of the kind described in paragraph (a); or(c)
    
    a Contribution Claim made in relation to a claim described in paragraph (a) or
(b),
 but in each case excludes any Marlew Claim and any other claim to the extent they have been
recovered or are recoverable under a Workers Compensation Scheme or Policy.Powermeans a power, right, authority, discretion or remedy which is conferred on the
Trustee:
 (a)
    
    by this Deed;(b)
    
    by the Final Funding Agreement;(c)
    
    by the Constitution; or(d)
    
    by the Transaction Legislation or any other law of the State of New South Wales
as amended from time to time.
 Proven Claimmeans any Personal Asbestos Claim or Marlew Claim in respect of which
final judgment has been given against, or a binding settlement has been entered into by a
Liable Entity or any member of the JHINV Group from time to time, and in each case, to the
extent to which that entity incurs liability under that judgment or settlement (including
any interest, costs or damages to be borne by a Liable Entity or the relevant member of the
JHINV Group pursuant to such judgment or settlement).Related Agreementsmeans documents ancillary to the Final Funding Agreement which are
listed in Schedule 1 to the Final Funding Agreement.Release Legislationhas the meaning given to that term in clause 1 of the Final Funding
Agreement.Securitieshas the meaning set out in the Corporations Act.Settled Summeans ten dollars ($10).Single Claims Managermeans in respect of any legal proceedings which involve a
Personal Asbestos Claim and one or more Concurrent Claims, the party responsible for
managing and resolving the Personal Asbestos Claim and the claims against at least one other
party, including a single claims manager within the meaning of the Dust Diseases Tribunal
Amendment (Claims Resolution) Act 2005.Special Defaultmeans a breach or default of a kind described in clause 16.2 of the
Final Funding Agreement.




---



##### 



- 11 - 
 SPF Funded Liabilitymeans:
 (a)
    
    only those liabilities described in paragraphs (a), (b), (c), (e) and (g) of
the definition of Payable Liability and excludes the liabilities described in
paragraph (d) or (f) of the definition of Payable Liability; and(b)
    
    a claim or category of claim which JHINV and the NSW Government agree in
writing is a SPF Funded Liability or a category of SPF Funded Liability.
 Tax Actmeans the Income Tax Assessment Act 1997(Cth).Trusts Actmeans the Charitable Trusts Act1993.Trustee Boardmeans the board of Directors.Transaction Legislationhas the meaning given to it in the Final Funding Agreement.Trustee Actmeans the Trustee Act1925 (NSW).Wind-Up or Reconstruction Amounthas the meaning given to it in the Final Funding Agreement.Workers Compensation Scheme or Policymeans any of the following:
 (a)
    
    any workers compensation scheme established by any law of the Commonwealth or
of any State or Territory of Australia;(b)
    
    any fund established to cover liabilities under insurance policies upon the
actual or prospective insolvency of the insurer (including without limitation the
Insurer Guarantee Fund established under the Workers Compensation Act1987 (NSW)); and(c)
    
    any policy of insurance issued under or pursuant to such a scheme.
 1.2
    
    General InterpretationHeadings are for convenience only and do not affect interpretation. The following rules of
interpretation apply unless the context requires otherwise.
 (a)
    
    The singular includes the plural and the converse.(b)
    
    A gender includes all genders.(c)
    
    Where a word or phrase is defined, its other grammatical forms have a
corresponding meaning.(d)
    
    A reference to a person, corporation, trust, partnership, unincorporated
body or other entity includes any of them.(e)
    
    A reference to a clause, annexure, schedule or exhibit is a reference to a
clause of, or annexure, schedule or exhibit to, this Deed.(f)
    
    A reference to a party to this Deed or another agreement or document
includes the partys successors and permitted substitutes or assigns.




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##### 



- 12 - 
 (g)
    
    A reference to an agreement includes any amendment, variation or
substitution of that agreement from time to time.(h)
    
    A reference to legislation or to a provision of legislation includes a
modification or re-enactment of it, a legislative provision substituted for it and a
regulation or statutory instrument issued under it.(i)
    
    A reference to writing includes a facsimile transmission and any means of
reproducing words in a tangible and permanently visible form.(j)
    
    A reference to conduct includes an omission, statement or undertaking,
whether or not in writing.(k)
    
    Mentioning anything after include, includes or including does not limit
what else might be included.(l)
    
    A reference in this Deed to a Power is to be construed without limitation
to any other Power also mentioned in this Deed.(m)
    
    A reference to an asset includes any real or personal, present or future,
tangible or intangible property or asset and any right, interest, revenue or benefit
in, under or derived from the property or asset.(n)
    
    Any term not otherwise defined in this Deed, the Final Funding Agreement or
the Transaction Legislation has the meaning given in the Corporations Act.
 2.
    
    APPOINTMENT AND DECLARATION OF TRUST2.1
    
    AcknowledgementThe Trustee acknowledges receipt of the Settled Sum from the Settlor prior to the execution
of this Deed.2.2
    
    Establishment of Fund and Appointment
 (a)
    
    The Fund is established by and upon the execution of this Deed.(b)
    
    The Settlor appoints the Trustee, and the Trustee accepts the appointment, as
trustee of the Fund to hold the Fund Property for the Fund Purpose on the terms and
conditions of this Deed.
 2.3
    
    Acceptance and DeclarationThe Trustee declares that it holds and will hold on trust for the Fund Purpose:
 (a)
    
    the Settled Sum;(b)
    
    the benefit of the Funding Obligations and the obligation of the Performing
Subsidiary (if applicable) to pay the Wind-Up or Reconstruction Amount in accordance
with clause 10 of the Final Funding Agreement, the JHINV Guarantee and each of JHINVs
covenants and obligations under the Final Funding Agreement and the Related Agreements
to ensure the payment by the JHINV Group of the JHINV Contributions under the Final
Funding Agreement and any




---



##### 



- 13 - Cross Guarantee given pursuant to clause 15.7 of the Final
Funding Agreement, and enforce the same as may be required from time to time;
 (c)
    
    the Fund Account and all money, Investments or other assets which the Trustee
acquires as Trustee of the Fund;(d)
    
    all proceeds of the above (whether capital or income) and any Investments;(e)
    
    all permitted accumulations of income and all accretions and additions to the
before-mentioned money, Investments and assets;(f)
    
    the shares in the Liable Entities; and(g)
    
    any asset or property of a Liable Entity which is transferred to the Trustee
pursuant to the Transaction Legislation,
 (all of which are referred to jointly and severally as Fund Property).2.4
    
    Name and Location of Fund
 (a)
    
    The Fund is to be known as the Asbestos Injuries Compensation Fund.(b)
    
    If any property is transferred or any interest is given to the Trustee to hold
as Fund Property, that property or interest may be transferred or given by referring to
the Fund by its name or to the Trustee by its name.(c)
    
    The Fund must at all times maintain its principal place of business in New
South Wales.
 3.
    
    PURPOSE
  3.1
    
    the principal purpose of receiving and providing funding for the payment and paying of
Payable Liabilities and providing services with respect to the management and resolution of
Payable Liabilities; and3.2
    
    the following additional purposes which are for the Trustee to:
 (a)
    
    hold the benefit of the Funding Obligations and the obligation of the
Performing Subsidiary (if applicable) to pay the Wind-Up or Reconstruction Amount in
accordance with clause 10 of the Final Funding Agreement, the JHINV Guarantee, and the
covenants and obligations of JHINV under the Final Funding Agreement and the Related
Agreements to ensure the payment by the JHINV Group of the JHINV Contributions under
the Final Funding
Agreement and any Cross Guarantee given pursuant to clause 15.7 of the Final Funding
Agreement, and enforce the same as may be required from time to time;(b)
    
    be the creditor of the Performing Subsidiary and JHINV for payments (whether
actually or contingently) due and payable to the Trustee under the Final Funding
Agreement and receive and give a proper receipt for such amounts;




---



##### 



- 14 - 
 (c)
    
    manage itself or through one or more of the Liable Entities or otherwise
cause to be managed, the response to all Payable Liabilities for itself or for or on
behalf of the Liable Entities including by entry into Claims Management Agreement with
the Liable Entities (and in respect of Payable Liabilities which are not SPF Funded
Liabilities, on the basis that the Liable Entities must bear the full cost and all
liabilities associated with such claims);(d)
    
    to provide management services to Liable Entity in connection with the
winding up of the Liable Entity including exercising all powers conferred on it by the
Transaction Legislation;(e)
    
    subject to it having the necessary funds to do so and clause 9.15 of the
Final Funding Agreement, pay in accordance with and subject to clause 4.7 of the Final
Funding Agreement and the provisions of the Transaction Legislation, the SPF Funded
Liabilities itself or through one or more of the Liable Entities, and in each case for
itself or for or on behalf of the Liable Entities as the Trustee may in its discretion
determine;(f)
    
    use its best endeavours to achieve all available legal and administrative
cost savings in relation to:
 (i)
    
    the process for handling the response to Personal Asbestos
Claims and Marlew Claims;(ii)
    
    Court proceedings dealing with apportionment of damages in
relation to Personal Asbestos Claims and Marlew Claims; and(iii)
    
    exercising rights of recovery.
 (g)
    
    review and implement legal and administrative cost savings in the claims
management process on a continuing basis both in relation to the process for settling
Personal Asbestos Claims and Marlew Claims and the process generally applicable in
relation to Personal Asbestos Claims and Marlew Claims, including reducing Claims Legal
Costs;(h)
    
    invest the assets contributed to or received by the Trustee;(i)
    
    use its best endeavours to:
 (i)
    
    recover;(ii)
    
    procure that each Liable Entity recover; and(iii)
    
    exercise or procure the exercise of rights subrogated from any
Claimant to recover,
 amounts paid or liabilities incurred with respect to any Personal Asbestos Claims,
Marlew Claims or any other Payable Liabilities from insurers, reinsurers and other
parties who may have contributed to the loss relating to such claims;




---



##### 



- 15 - 
 (j)
    
    generally do all things necessary and convenient for the purposes of
handling and finalising Payable Liabilities for itself or for and on behalf of the
Liable Entities (provided that nothing in the Final Funding Agreement shall require the
Trustee to incur any liability or pay any amount with respect to a liability which is
not a SPF Funded Liability);(k)
    
    as provided by the Transaction Legislation or to the extent otherwise
entitled to do so, be subrogated to the rights of the Claimants against the Liable
Entities and Marlew or any other persons in relation to any Payable Liability settled
or met by the Trustee;(l)
    
    be authorised and permitted to negotiate with Claimants and at its
discretion procure that the relevant Liable Entity enter into binding settlements in
relation to (including without limitation compromises of Payable Liabilities).
 4.
    
    TRUSTEE4.1
    
    The TrusteeThe Trustee must at all times ensure that it:
 (a)
    
    is a company registered under the Corporations Actthat is taken under section
119A of that Act to be registered in New South Wales;(b)
    
    is a resident of New South Wales;(c)
    
    includes within its Constitution the Constitutional Provisions; and(d)
    
    does not accept appointment, or act, as a trustee of any fund or trust other
than the Fund, or carry on any business, except to the extent necessary for the Trustee
to perform its functions under this Deed and under the Transaction Legislation.
 4.2
    
    General powers of the TrusteeSubject to this Deed, the Trustee has all the powers, privileges and other incidents of
ownership or possession over and in respect of the Fund Property that it is possible under
the law to confer on a trustee and as though it were the absolute owner of the Fund Property
and acting in its personal capacity.4.3
    
    General Administration of Fund PropertyThe Fund Property must be held and administered by the Trustee in the following manner:
 (a)
    
    The Trustee must open or arrange the opening of the Fund Account.(b)
    
    The Fund Account is to be in addition to any other bank account maintained by
the Trustee.(c)
    
    The Trustee must pay or credit to the Fund Account all of the following moneys
promptly upon receipt by the Trustee:




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##### 



- 16 - 
 (i)
    
    all monetary gifts and donations received by the Trustee
(including the Settled Sum);(ii)
    
    the Funding Payments;(iii)
    
    all interest earned on the monies in the Fund Account; and(iv)
    
    all monies derived from property given or transferred to or
acquired by the Fund.
 (d)
    
    No other monies will be paid or credited to the Fund Account.(e)
    
    The Fund Account will be managed by the Trustee Board.(f)
    
    The Fund Property must at all times be clearly identifiable as property of the
Trustee and must be held separately from the assets of the Trustee.(g)
    
    The Fund Property may only be dealt with and applied by the Trustee in
connection with or in furtherance of the Fund Purpose, in the manner required or
permitted by this Deed, the Final Funding Agreement, the Transaction Legislation and
the general law.
 4.4
    
    Control of Liable EntitiesThe Trustee is not required to carry out the functions referred to in clauses 3.2(c), (e),
(i) (ii), (j) and (l) in relation to a Liable Entity unless that Liable Entity is under the
control or direction of the Trustee.4.5
    
    Contracting and Investing powersTo the extent permitted by law, the Trustee in its capacity as Trustee of the Fund has power
to do or to cause the Liable Entities to do any of the following:
 (a)
    
    subject to clause 4.2, invest in shares, stock, bonds, cash deposits, notes,
debentures, units, rights to profit or any other security (including, but without
limitation, whether convertible, redeemable, preferred, deferred or partly paid, with
or without any right, title or interest in or to such security including an option or a
right to subscribe) including making contributions in respect thereof;(b)
    
    realise, vary or exchange any Investment and add any Investment to the Fund
Property;(c)
    
    subject to clause 6.2, exercise any voting rights attaching to Investments
forming part of the Fund Property in such manner as the Trustee thinks fit;(d)
    
    appoint any of its executives, directors or employees (each an Appointee) to
the board of directors or other governing body of an Investee, provided that fees
earned by any Appointee shall be income of the Trustee and form part of the Fund
Property;(e)
    
    possess, sell, exchange, transfer, mortgage, pledge or otherwise dispose of,
encumber or deal in the assets of the Fund for cash, shares, stock, Securities or other
property of any nature (whether real or personal) or any




---



##### 



- 17 - combination of them on such
terms and conditions as may be determined by the Trustee (for the avoidance of doubt,
the Trustee has the power to provide warranties in relation to the sale of any
Investment);
 (f)
    
    borrow money or Securities either bearing or free of interest, with or without
security, and by way of loan, debenture, bill of exchange or otherwise on such terms
and conditions as the Trustee, in its absolute discretion thinks fit, or guarantee
loans or other extensions of credit;(g)
    
    make loans or provide other financial accommodation to Investees, or give
guarantees for the benefit of Investees or other Persons as a necessary or integral
part of an Investment;(h)
    
    institute, prosecute and compromise legal proceedings to secure compliance with
this Deed or any other right which the Trustee has as Trustee of the Fund and enforce
any debt or liability owed to the Trustee as Trustee of the Fund (or to which the
Trustee is subrogated) including by issuing any statutory or other demand, instituting,
prosecuting and compromising any legal proceedings, and lodging a proof of debt or
claim in relation to, or as a consequence of, the Insolvency of any Person;(i)
    
    pursue and compromise any claim held by the Trustee or to which the Trustee is
subrogated to any insurer or reinsurer;(j)
    
    pay all outgoings and expenses connected with the Fund or this Deed (including
all fees payable to Agents and/or attorneys appointed under clause 4.5) and, subject to
clause 4.3, conduct such bank account or accounts of the Fund as the Trustee thinks
fit;(k)
    
    give receipts and discharges in the name of the Fund for any moneys received on
behalf of the Trustee;(l)
    
    either alone or jointly with any other Person, guarantee, give any indemnity in
respect of or become liable for or (whether or not any such guarantee has been given)
mortgage or charge the Fund Property or any part of it as security for the payment of
money, with or without interest (including money payable or to become payable under a
fluctuating overdraft) or for the performance of any obligations by any Person and
without limitation, for the purpose of securing the payment of any moneys or the
performance of any obligations for which the Trustee has become or may become liable
under or by virtue of any guarantee, indemnity, option or other contract entered into
by the Trustee;(m)
    
    draw, endorse, discount, sell, purchase and otherwise deal with bills of
exchange, commercial bills, promissory notes, other negotiable instruments or
certificates of deposit, debentures, notes or any other financial instruments
either alone or jointly but so that the total of the moneys for the time being the
subject of liability on the part of the Trustee whether as drawer, acceptor or
endorser of any and all such instruments and whether alone or jointly or severally
with other persons are deemed to be liabilities of the Fund for all purposes, and
any reference in this clause to the Trustee shall include a reference to each
Liable Entity;(n)
    
    maintain and repair the Fund Property;




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##### 



- 18 - 
 (o)
    
    develop, improve or vary the Fund Property in any way;(p)
    
    insure the Fund Property for any amount against any risk;(q)
    
    pay expenses and outgoings (including taxes) incurred on the Fund Property out
of capital or income;(r)
    
    lease Fund Property at any rent and on any terms;(s)
    
    add to the Fund Property any part of the income arising from its application
for the Fund Purpose;(t)
    
    solicit and receive as additions to the Fund Property gifts and benefactions of
any kind whether inter vivos or testamentary; and(u)
    
    take any action it thinks fit for the adequate protection of the Fund Property
and do all things incidental to the exercise of any powers conferred on the Trustee by
this Deed;(v)
    
    enter into Claims Management Agreements with the Liable Entities (and
in respect Payable Liabilities which are not SPF Funded Liabilities), on the basis that
the Liable Entities must bear the full cost and all liabilities associated with such
claims; and(w)
    
    accept appointment and act as a Single Claims Manager.
 4.6
    
    Powers of Delegation and AppointmentThe Trustee may:
 (a)
    
    authorise any person to act as its agent or delegate (in the case of a joint
appointment, jointly and severally) to provide advice, hold title to any Fund Property,
perform any act or exercise any discretion within the Trustees power, including
without limitation the power to appoint in turn its own agent or delegate and in
particular the power to enter into the Irrevocable Power of Attorney;(b)
    
    include in the authorisation provisions to protect and assist those dealing
with the agent or delegate as the Trustee thinks fit;(c)
    
    appoint, remove or vary the appointment of the Approved Actuary, the Approved
Auditor and any accountants, solicitors, barristers, investment bankers, technical or
other experts and qualified advisers to:
 (i)
    
    provide advice;(ii)
    
    do anything required or permissible by this Deed, including the
receipt and payment of money and the execution of any document by the Trustee;
and(iii)
    
    transact any business,
 in connection with the Fund, the Fund Purpose or the Fund Property, subject always
to the obligations of the Trustee under the Final Funding Agreement;




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##### 



- 19 - 
 (d)
    
    appoint an attorney to execute any document on any terms the Trustee thinks
fit;(e)
    
    employ any person in connection with anything required to be done under this
Deed and to decide the remuneration (including expenses and superannuation) to be paid
to that person provided that, subject to clause 4.7(f), no payment is made to any
director of the Trustee other than the payment of:
 (i)
    
    out of pocket expenses incurred by the director in the
performance of any duty as a director of the Trustee subject to the amount
payable not exceeding any amount previously approved by the board of directors
of the Trustee;(ii)
    
    any service rendered to the Trustee by the director in a
professional or technical capacity (and not in his or her capacity as a
director) where the provision of the service has been previously approved by
the board of directors of the Trustee and the remuneration for the service does
not exceed an amount which is proper remuneration for the service;(iii)
    
    any salary or wage due to the director as an employee of the
Trustee where the terms of employment have been previously approved by the
board of directors of the Trustee and the salary or wage does not exceed an
amount which is proper remuneration;(iv)
    
    an insurance premium in respect of a contract insuring an
officer to which section 212 of the Corporations Actrefers or the provision of
a financial benefit (by way of indemnity) to a director to which section 212 of
the Corporations Actrefers;
 (f)
    
    in addition to the payments to directors of the Trustee permitted under clause
4.7(e), pay such amount as directors fees as it considers appropriate to any director
of the Trustee not being an employee of the NSW Government or an employee of any member
of the JHINV Group; and(g)
    
    direct any director or officer of a Liable Entity to act in any manner or do
any act as described in this Deed.
 4.7
    
    Compliance with Transaction LegislationIn addition to any Powers conferred on the Trustee under this Deed and at law, the Trustee
may exercise each and any power conferred on it by the Transaction Legislation or by any
other Act or Regulation made under any Act of the State of New South Wales.4.8
    
    Limitations on Powers of the Trustee
 (a)
    
    Notwithstanding any other provision of this Deed, the Trustee has no power
to and must not pay or discharge or purport to pay or discharge any liability of a
Liable Entity which a Liable Entity is not authorised to pay or discharge by the Final
Funding Agreement, a Related Agreement or the Transaction Legislation.




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##### 



(b)
    
    Notwithstanding any other provision of this Deed, prior to the Commencement
Date the Trustee may not exercise any of its powers under this Deed or at law except to
the extent that such exercise is necessary or reasonably incidental to:
 (i)
    
    establish the Fund Account;(ii)
    
    manage any application to the Australian Taxation Office
concerning the status of the Fund for income tax purposes; or(iii)
    
    other matters or tasks which are purely administrative in
nature and preparatory to the discharge by the Trustee of its substantive
rights, powers and responsibilities under this Deed, the Final Funding
Agreement and the Transaction Legislation.
 4.9
    
    Exercise of DiscretionThe Trustee may in its absolute discretion decide how and when to exercise its Powers.4.10
    
    Compliance with the Final Funding Agreement
 (a)
    
    The Trustee must at all times comply fully with the obligations imposed on the
Trustee by the Final Funding Agreement.(b)
    
    In the event of any inconsistency between the Final Funding Agreement and this
Deed, the terms of the Final Funding Agreement prevail to the extent of the
inconsistency but otherwise this Deed shall have effect.
 4.11
    
    Trustees standard of dutyThe Trustee must exercise the same degree of care, skill and diligence as a reasonable and
prudent person would exercise if it was the Trustee of the Fund.4.12
    
    Reliance on AdviceThe Trustee may take and may act upon:
 (a)
    
    the advice of the Approved Actuary;(b)
    
    the opinion or advice of counsel or solicitors, whether or not instructed by
the Trustee, in relation to the interpretation of this Deed or any other document
(whether statutory or otherwise) or generally in connection with the Fund;(c)
    
    advice, opinions, statements or information from any bankers, accountants,
auditors, valuers and other persons consulted by the Trustee who are in each case
believed by the Trustee in good faith to be expert in relation to the matters upon
which they are consulted; and(d)
    
    any other document provided to the Trustee in connection with the Fund upon
which it is reasonable for the Trustee to rely,




---



##### 



- 21 - and the Trustee will not be liable for anything done, suffered or omitted by it in good
faith in reasonable reliance upon such opinion, advice, statement, information or document,
unless otherwise known to be false or incomplete.
 4.13
    
    Remuneration
 (a)
    
    Subject to paragraph (b), no remuneration or other benefit in money or moneys
worth will be paid or transferred, directly or indirectly, to the Trustee or to any
member or officer of the Trustee in respect of his or her duties or conduct as such.(b)
    
    The Trustee may pay out of the Fund Property:
 (i)
    
    reasonable remuneration to any member, officer, employee or
agent of the Trustee for services actually rendered to the Trustee acting in
accordance with this Deed;(ii)
    
    payment or reimbursement for out of pocket expenses reasonably
incurred by any member, officer, employee or agent of the Trustee in carrying
out the Trustees functions under this Deed; and(iii)
    
    fees and disbursements to any solicitor, accountant or other
advisor or the Trustee.
 5.
    
    LIABILITYThe Trustee shall not be liable for:
 (a)
    
    a loss to the Fund Property;(b)
    
    any action taken or omitted to be taken by it under this Deed,
 except in the case of wilful default, fraud or negligence of the Trustee.6.
    
    INDEMNITY AND INSURANCE6.1
    
    IndemnityThe Trustee and the officers, employees, agents and attorneys of the Trustee (each an
Indemnified Person) shall be indemnified out of the Fund Property for:
 (a)
    
    all costs, charges, liabilities and expenses (including legal costs and
expenses) incurred in the performance or exercise or attempted performance or exercise
of any duty or Power; and(b)
    
    any action brought against any of them concerning this Deed, the Fund Property
or the neglect or default of any solicitor, banker, accountant or other agent employed
in good faith by the Trustee,
 except to the extent any of the above arise or are incurred as a result of the wilful
default, fraud or negligence of the Indemnified Party.




---



##### 



- 22 - 6.2
    Indemnity for Exercise of Voting RightsExcept as otherwise provided by law:(a)
    
    the Trustee or its Appointee is not liable or responsible to any Person for the
management of any company or body or for any vote or action taken or consent given by
the Trustee or its Appointee in person or by proxy or power of attorney.(b)
    
    neither the Trustee nor the holder of any proxy or power of attorney:(i)     incurs any liability or responsibility by reason of any error
of law or mistake of fact or any matter or thing done or omitted or approval
voted or given or withheld by the Trustee or its Appointee or by the holder of
a proxy or power of attorney under this Deed; and(ii)    is under any obligation to anyone with respect to any action
taken or caused to be taken or omitted by the Trustee or its Appointee or by
any holder of a proxy or power of attorney.6.3
    Maintain Insurance(a)
    
    The Trustee must use its best endeavours to effect and maintain a contract of
insurance with an established and reputable insurer, which insures the Trustee and the
officers and employees of the Trustee (each an Insured Person) against all liabilities
incurred by them whilst acting in that capacity, provided that the liability does not
arise out of conduct involving a wilful breach of duty to the Trustee. The Trustee
shall be entitled to pay for the premium on such contracts out of Fund Property.(b)
    
    Unless the Trustee agrees otherwise, the. contract of insurance
referred to in clause 6.3(a) must contain a provision waiving all rights of subrogation
or action against each Insured Person.(c)
    
    The exercise of the Trustees discretion under clause 6.3(b) only arises if the
Trustee receives a written request (either as a standing request or from time to time)
from an Insured Person and if and to the extent that the Insured Person does not
otherwise have the benefit of a contract of insurance on the same terms as set out in
that clause.(d)
    
    The Trustee may satisfy its obligations under clause 6.3(a) by paying the
premium attributed to the Insured Persons by a broker under a global contract of
insurance that includes coverage for the Insured Persons and the officers of companies
in the JHINV Group.6.4
    Not render voidThe Trustee must use its best endeavours to ensure that it does not do anything which will
render void any contract of insurance effected under clause 6.3.




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##### 



- 23 - 7.
    
    APPOINTMENT OF NEW TRUSTEE7.1
    
    Condition Precedent to AppointmentNo appointment or purported appointment of a new Trustee of the Fund will take effect unless
and until the new trustee to be appointed has been approved in writing by the NSW Government
(acting reasonably) and a Deed of Accession has been duly executed by the proposed new
Trustee and each other party thereto and delivered to JHINV and the NSW Government.7.2
    
    Trustee Act, reliance and notices
 (a)
    
    Subject to the following paragraphs, the provisions of Part 2 Division 2.1 of
the Trustee Act apply:
 (i)
    
    if for the purposes of section 6(4)(b) of the Trustee Act, the
last surviving or continuing Trustee is a corporation in liquidation then any
relevant appointment may be made by the liquidator of that corporation; and(ii)
    
    notwithstanding section 8(1) of the Trustee Act, a sole Trustee
may only retire if at least one new Trustee is appointed in place of that sole
Trustee.
 (b)
    
    Upon the retirement, removal or appointment of the Trustee, the new Trustee
must endorse a note on this Deed recording the retirement, removal or appointment and
any Person acting on this Deed or with notice of its terms shall be entitled to rely on
its terms (as amended) as evidence of the identity of the Trustee or the Trustees at
that time.
 7.3
    
    Acceptance of Accounts and Discharge
 (a)
    
    Any new Trustee may accept the accounts given and the property delivered to it
by a continuing or ceasing Trustee without having to enquire as to the assets of the
Fund.(b)
    
    Subject to clause (d), any ceasing Trustee may be given a full discharge by the
new Trustee and the discharge will release the ceasing Trustee from all obligations in
relation to all or any part of the Fund Property.(c)
    
    Any discharge given under clause (b) will bind all persons who:
 (i)
    
    have or might take any interest in all or any part of the Fund
Property; or(ii)
    
    who have or might have a right to have the Fund Property
properly administered in accordance under this Deed.
 (d)
    
    Despite anything in clause (b), a ceasing Trustee shall not be released by any
discharge given under clause (b) if:
 (a)
    
    that discharge arises from any acts or omissions of the ceasing
Trustee having been concealed by the Trustee fraudulently, dishonestly or in
bad faith; or




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##### 



- 24 - (b)
    
    the discharge relates to any loss to the Fund, for which the Fund
has not been properly compensated, which arose as a consequence of the wilful
default, fraud or negligence of the ceasing Trustee.
 8.
    
    THIRD PARTIESNo person (including the Registrar General or any other government agency) dealing in good
faith with the Trustee (including as vendor, purchaser or mortgagor) is bound to enquire:
 (a)
    
    as to the authority or purpose of the Trustee;(b)
    
    as to the application of money received by the Trustee;(c)
    
    whether the dealing is necessary or proper; or(d)
    
    in any other way as to the proprietary or regularity of the dealing.
 9.
    
    FAILURE OF THE TRUSTEE AND TERMINATION OF THE FUND
 (a)
    
    The Trustee may only terminate the Fund with the prior written consent of the
NSW Government.(b)
    
    If the Fund is terminated, set aside or fails for any reason, or if the Trustee
becomes unable (for any reason including as a consequence of an Insolvency Event) to
carry out its functions and comply with its obligations under this Deed, the Final
Funding Agreement and the Transaction Legislation, then the Fund Property must be
applied as follows:
 (i)
    
    first, in payment of any amounts payable to any creditor of the
Trustee; and(ii)
    
    secondly, the balance must be dealt with and applied in
accordance with clause 4.6 of the Final Funding Agreement.
 10.
    
    AMENDMENTS
 (a)
    
    Subject to this clause, this Deed may from time to time be amended by a deed
poll executed by the Trustee.(b)
    
    No amendment of this Deed shall be made if as a result:
 (i)
    
    the Fund Purpose would be altered in any way;(ii)
    
    any of clauses 1.1, 2.4(c), 3, 4, 5, 7.1, 8, 9 or 10 would be
amended, repealed or otherwise made redundant or ineffective.
 11.
    
    FINANCES OF THE FUND11.1
    
    Accounts and Approved Auditor
 (a)
    
    The Trustee must ensure that proper books of account and all other proper books
and records are kept for the Fund and for each of the Liable Entities.




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##### 



- 25 - (b)
    
    The Trustee must comply with clause 5.12 of the Final Funding Agreement
including by appointing an Approved Auditor to be the auditor of the Fund and ensuring
that the financial affairs of the Fund and each of the Liable Entities are audited by
the Approved Auditor at least once in each calendar year.(c)
    
    The Trustee must provide the NSW Government and JHINV with each report of the
Approved Auditor.
 11.2
    
    Approved ActuaryThe Trustee must appoint and at all times retain an Approved Actuary of the Fund in
accordance with clause 5.15 of the Final Funding Agreement.11.3
    
    Access to Books and RecordsThe Trustee must give the NSW Government Auditor full and free access to the books and
records of the Fund in accordance with clause 5.13 of the Final Funding Agreement.11.4
    
    General Reporting Obligations
 (a)
    
    Within three months of the end of each Financial Year, the Trustee will prepare
and issue to JHINV and the NSW Government a report of the affairs and activities of the
Fund for the reporting period by reference to the budget of the Fund for the reporting
period and its financial and other objectives for that period;(b)
    
    The Trustee must:
 (i)
    
    prepare a set of consolidated financial statements for the
Trustee and the Liable Entities in respect of each Financial Year during the
Term, in accordance with requirements applicable under the Corporations Actand
in accordance with Australian generally accepted accounting principles (or on
such other basis as may be agreed between the parties to the Final Funding
Agreement); and(ii)
    
    engage the Approved Auditor to audit those financial statements
on a timely basis in respect of each Financial Year and to provide a copy of
the relevant audit reports to the other Parties to this Deed.
 12.
    
    ACTION BY THE TRUSTEE12.1
    
    Actions through Board of DirectorsThe Trustee will act through its board of directors in accordance with this Deed, the Final
Funding Agreement, its Constitution, the Transaction Legislation and the Corporations Act.12.2
    
    Compliance with Tax ExemptionThe Trustee will comply with any condition to any exemption from Taxation given from time to
time in respect of the Fund or its income, and shall do all things reasonably necessary to
maintain and comply with that exemption, provided that




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##### 



- 26 - nothing in this clause shall permit or authorise the Trustee to fail to act in
accordance with the Fund Purpose, the Final Funding Agreement or the Transaction
Legislation.13
    
    CERTIFICATESA certificate signed by the secretary of the Trustee that a resolution has been passed by
the Trustee, is conclusive, evidence as against any person dealing with any of those bodies
that the resolution has been duly passed at a properly convened meeting of the relevant
body.14.
    
    GOVERNING LAWThis Deed is governed by the laws of New South Wales.15.
    
    NO ENFORCEMENT BY THIRD PARTIESFor the avoidance of doubt, no other Person may seek to enforce this Deed or the Fund
constituted by this Deed, except as provided in the Transaction Legislation or clause
4.4(a) of the Final Funding Agreement.
 EXECUTED
  SIGNED SEALEDand DELIVERED
    
    
    )on behalf of [SETTLOR])in the presence of:
    
    
    )SignatureWitness
    
    
    
    
    
    
    
    Print NamePrint name




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##### 



- 27 - SIGNED SEALEDand DELIVERED
    
    
    )on behalf of ASBESTOS INJURIES
    
    
    )COMPENSATION FUND LIMITED
    
    
    )in the presence of:
    
    
    )SignatureWitness
    
    
    
    
    
    
    
    Print NamePrint name




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##### 



- 2 - SCHEDULE 1
 Constitutional Provisions
 1.
    
    The Trustee Board1.1
    
    The management of the Fund shall vest in the Trustee.1.2
    
    The Trustee Board shall consist of a minimum of 3 Directors and a maximum of 5 Directors as
determined by the Directors.1.3
    
    Initially there shall be five Directors. JHINV must appoint three of those Directors and the
NSW Government must appoint two of those initial Directors.2.
    
    Power to appoint directors2.1
    
    Unless paragraph 2.3 applies:
 (a)
    
    JHINV shall be entitled to appoint a majority of the Directors from time to
time to the Trustee Board and to designate one of those Directors to be Chairman;(b)
    
    JHINV may, by Notice to the other Parties, nominate a subsidiary for so long as
it remains a subsidiary of JHINV, to exercise its rights under this clause 2.1; and(c)
    
    JHINV shall, or shall procure that the nominated subsidiary shall, promptly
give Notice to the Trustee and the NSW Government of any appointment made pursuant to
this clause 2.1.
 2.2
    
    The NSW Government shall be entitled to appoint the remaining Directors.2.3
    
    If a Special Default occurs or an Insolvency Event in relation to JHINV occurs and so long as
that Special Default or Insolvency Event remains in existence and the NSW Government gives to
JHINV a notice that clause 16.3(b) of the Final Funding Agreement is to apply:
 (a)
    
    the Trustee Board must be constituted so that a majority of the Directors shall
have been appointed by the NSW Government,(b)
    
    the NSW Government may appoint further Directors so that the foregoing is
achieved, and the Chairman (and remove any such appointees); and(c)
    
    JHINV must procure the resignation of the requisite number of Directors
appointed by JHINV (so that the foregoing is achieved).
 3.
    
    Power to remove and replace Directors




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##### 



- 3 - 4.
    
    Quorum
  (a)
    
    subject to paragraph (b), if a quorum is not present at a meeting, the meeting shall be
reconvened by Notice to a date no less than 24 hours after the date of the original meeting
(or such time as is reasonable in cases of emergency) and the quorum for such a reconvened
meeting of which all Directors have been given notice in writing shall be at least two
Directors; and(b)
    
    if a Special Default occurs or an Insolvency Event in relation to JHINV occurs and so long as
the Special Default or Insolvency Event remains in existence, and the NSW Government gives to
JHINV a Notice that clause 16.3(b) of the Final Funding Agreement is to apply, the quorum for
a meeting of the Board of the Fund will be two Directors appointed by the NSW Government.5.
    
    Voting at Trustee Board meetings(a)
    
    Subject to paragraph (c) and except as otherwise specified in this Constitution, at any
meeting of the Directors, each Director has one vote.(b)
    
    Subject to paragraph (c), if a Director representative of a party and his or her alternate
Director is absent, the remaining Director representatives of that party shall be entitled to
jointly exercise the absent Directors vote.(c)
    
    If a Special Default occurs or an Insolvency Event occurs in relation to JHINV occurs, and so
long as that Special Default or Insolvency Event remains in existence and the NSW Government
gives to JHINV a Notice that clause 16.3(b) of the Final Funding Agreement is to apply, the
total number of votes that may be cast at any meeting of the Board of the Trustee by the
Directors (including the Chairman) appointed by JHINV or one of its subsidiaries present at
the meeting shall be one less than the number of votes that may be cast by the Directors
appointed by the NSW Government present at that meeting.6.
    
    Chairman and Chairmans vote
  7.
    
    Interests of Appointor7.1
    
    Subject always to a Directors obligations under the Trust Deed, this Constitution, statute
or otherwise at law, a Director may take into account the views of that Directors Appointor
and may act on the wishes of that Appointor in performing any of his or her duties or
exercising any power, right or discretion as a Director in relation to the Trustee.7.2
    
    A Director may provide that Directors Appointor with copies of all documents, Board Papers
and other material which come into the possession of the Director in that capacity and may
disclose to and discuss with the Appointor all information to which the Director becomes privy
in that capacity.




---



##### 



- 4 - 7.3
    
    A Director is not precluded from voting or otherwise acting in his or her capacity as a
Director as a result of any conflict of interest arising from the fact that the Director is an
employee, consultant or officer of an Appointor, or in the case of a Director appointed by the
NSW Government, a public servant.8.
    
    Adjournment
  (a)
    
    if paragraph 4(a) applies, the meeting shall be adjourned to the time specified in
paragraph 4(a);(b)
    
    in any other case the same time and place seven days after the meeting or to another day,
time and place determined by those Directors present.9.
    
    Alternate Directors
  10.
    
    Insurance and Indemnities




---



##### 



Annexure 4  Form of Unions Deed of Release
 James Hardie Industries N.V.
 Australian Council of Trade Unions
 Unions New South Wales
 Bernard Douglas Banton
 DEED OF RELEASE -
UNIONS AND BANTON




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##### 



THIS DEED
 1.
    
    James Hardie Industries N.V.ARBN 097 829 895 incorporated in the
Netherlands and with its Australian registered office at Level 3, 22
Pitt Street, Sydney (JHINV)2.
    
    Australian Council of Trade Unionsof Level 2, 393 Swanston Street,
Melbourne in the State of Victoria (ACTU)3.
    
    Unions New South Wales,of 10th Floor, 377-383 Sussex Street, Sydney
in the State of New South Wales (Unions NSW)4.
    
    Bernard Douglas Bantonof 133-7 Parramatta Road Granville, NSW, as the
authorised representative of the Asbestos Victims Groups named in
Schedule 1 to this Deed
 RECITALS
 A.
    
    This deed is entered into by the Parties described above in the following context (some of
the expressions used in these recitals being defined in clause 1of this deed):
 (a)
    
    in February 2004, the NSW Government established the Jackson Inquiry;(b)
    
    in September 2004, the Jackson Inquiry found that the MRCF was, and is,
underfunded in the sense that Amaca and Amaba, being two former subsidiaries of JHIL
which are now owned by MRCF, will not over time have sufficient funds and other assets
to meet their anticipated future liabilities:
 
    
    to sufferers of Asbestos disease as a result of exposure to Asbestos dust
and fibre in Australia whilst in their employ or from products manufactured by
Amaca or Amaba or otherwise from their Asbestos activities; and
    
    to the relatives or estates of such sufferers,
 and associated costs and expense;(c)
    
    in July 2004, JHINV had proposed to the Jackson Inquiry that, on certain
conditions, its directors would recommend that shareholders approve the provision of
additional funding to provide for the present and future liabilities of Amaca and Amaba
to such sufferers of Asbestos related disease;(d)
    
    the ABN 60 Foundation is the holding company of ABN 60, the former parent
company of the James Hardie group, which may be alleged to have Asbestos-
related personal injury liabilities arising from its own activities and from the




---



##### 



2 activities of Amaca and Amaba, and has (or had) payment obligations to Amaca and
Amaba under a deed of covenant and indemnity between them dated 16 February 2001;(f)
    
    the NSW Government requested the ACTU, Unions NSW and Banton to conduct
negotiations with JHINV in order to resolve the underfunding of the MRCF, and
subsequently the NSW Government also took part in those negotiations;(g)
    
    in those negotiations, the principal objective of the Initial Negotiating
Parties, for different reasons, was to achieve a binding agreement intended to ensure
that sufficient funding is made available by the JHINV Group to fully compensate, after
taking into account the existing assets of the Liable Entities, on an agreed basis, all
proven current and future Australian Asbestos personal injury and death Claimants
against the Liable Entities;(h)
    
    on 21 December 2004, the Initial Negotiating Parties entered into a non-binding
Heads of Agreement which set out the agreed position of the Initial Negotiating Parties
in relation to the principles on which the binding agreement would be based and the key
standing considerations relevant to implementing those principles to be reflected in
that binding agreement;(i)
    
    on or about the date of this deed, the NSW Government, JHINV and the Performing
Subsidiary entered into a deed (the Final Funding Agreement) which set out the agreed
position of those persons in relation to the basis on which, subject to the
satisfaction or waiver of the conditions set out in the Final Funding Agreement, JHINV
and/or the Performing Subsidiary will provide funding on a long-term basis to the Fund;(j)
    
    the JHINV Group has asserted that it has suffered damage to business operations
and sales from boycotts and other actions in relation to the distribution and sale of
its products in Australia and in other places throughout the world and is or was
subject to a number of threats relating to future action, and the JHINV Group has
sought to establish that its business operations and sales would no longer be affected
by those boycotts and other actions or the threat of them; and(k)
    
    the Fund is to be established under the laws of New South Wales as required
under clause 4.1of the Heads of Agreement and it is a condition of the Final Funding
Agreement that the Trustee becomes a party to the Final Funding Agreement prior to the
Commencement Date.
 B.
    
    The Parties enter into this deed to reflect:
 (a)
    
    their formal and legally binding agreement in relation to the releases
described in clause 9.2of the Heads of Agreement,(b)
    
    the agreed basis of further actions by the Parties in relation to the lifting
of boycotts, as anticipated in clause 16of the Heads of Agreement; and(c)
    
    the agreed basis on which public statements may be made in relation to the
circumstances leading up to the signing of this Deed by the Parties and the Final
Funding Agreement by the parties thereto, consistent with the arrangements applicable
under clauses 16.1and 19of the Heads of Agreement.




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##### 



3 
 THIS DEED WITNESSES
 1
    
    DEFINITIONS AND INTERPRETATION1.1
    
    Definitions
  ABN 60
 ABN 60 Foundation
 Amaba
 Amaca
 Asbestos
 Asbestos Support Groups
 Associated Person
 (a)
    
    in relation to the ACTU, each union affiliated to the ACTU and each of its
and their officers, members and employees;(b)
    
    in relation to Unions NSW, each union affiliated to Unions NSW and each of
it and their officers, members and employees;(c)
    
    in relation to Banton, each of the Asbestos Support Groups; and(d)
    
    in relation to JHINV or a Liable Entity, means each of its past and present
directors, officers, employees, agents or advisers.
 Banton
 Business Day
 Civil Liability
 Commencement Date
 Controlled Entity
 Corporations Act Corporations Act 2001




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##### 



4 Court
 Deeds of Covenant and Indemnity
 (a)
    
    the deed of that name dated 16 February 2001 and entered into between JHIL,
Amaba and Amaca and any amendments thereto (including without limitation pursuant to
the amending deed dated 10 September 2001); and(b)
    
    the Deed of Covenant Indemnity and Access between JHINV and ABN 60 dated 31
March 2003 and any amendments thereto.
 Final Funding Agreement
 Final Funding Agreement Date
 Fund
 Heads of Agreement
 Initial Negotiating Parties
 Jackson Inquiry
 JHIL
 JHINV Group
 Jackson Inquiry
 Liable Entities
 MRCF
 Notice clause 11
 Other Governments
 Parties
 Performing Subsidiary clause 6.2
 Person




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##### 



5 Final Funding Agreement
 Released Claims
 (i)
    
    the underfunding of the MRCF; or(ii)
    
    the Jackson Inquiry; or(iii)
    
    all Relevant Matters; or(iv)
    
    any bans, boycotts or other action in place as a result of the
Relevant Matters on any products manufactured, distributed or sold by any
member of the JHINV Group, save that no ban, boycott or any other action shall
comprise a Released Claim to the extent it:
 (A)
    
    is new or is put into place after the Final
Funding Agreement Date; or(B)
    
    persists or continues in place on or after 1 January 2006.
 Released Party
 Relevant Matters
 (a)
    
    the establishment and any underfunding or funding of the MRCF and the
February 2001 ABN 60 group corporate reorganisation (including, without limitation,
the transfer of the Liable Entities out of the group, representations made to
incoming directors of the Liable Entities and other third parties regarding the
Liable Entities and their assets and liabilities, the media releases of ABN 60 of 16
February 2001 and of JHINV of 29 and 30 October 2003 and any statements made in
relation to any of the foregoing matters);(b)
    
    the Deeds of Covenant and Indemnity;(c)
    
    the transfers of assets, and the dividends and management fees paid, by the
Liable Entities as described in the report of the Jackson Commission;(d)
    
    the August to October 2001 ABN 60 group corporate reorganisation (including
without limitation the scheme of arrangement in relation to ABN 60 of August to
October 2001, the contemporaneous reduction of capital of (and cancellation of fully
paid ordinary shares in) ABN 60 and subscription by JHINV for partly paid shares in
ABN 60, the subsequent cancellation of those partly paid shares in ABN 60 in March
and April 2003 and representations to third parties and the court) any statements
made by any person in relation to any of the foregoing matters;




---



##### 



6 (e)
    
    the transfer of assets from ABN 60 to JHINV, the establishment of the ABN
60 Foundation Limited and ABN 60 Foundation Trust, and the allotment of fully paid
shares in ABN 60 to ABN 60 Foundation Limited. (f).
 Trust Deedmeans the trust deed for the Fund.1.2
    
    Trusteemeans the trustee of the Fund from time to time, initially being Asbestos Injuries
Compensation Fund Limited.1.3
    
    InterpretationIn this Deed, unless the context otherwise requires:
 (a)
    
    headings are for convenience only and do not affect the interpretation of
this agreement;(b)
    
    words importing the singular include the plural and vice versa;(c)
    
    words importing a gender include any gender;(d)
    
    other parts of speech and grammatical forms of a word or phrase defined in
this agreement have a corresponding meaning;(e)
    
    an expression importing a natural person includes any company, partnership,
joint venture, association, corporation or other body corporate and vice versa;(f)
    
    a reference to any thing (including, but not limited to, any right)
includes a part of that thing;(g)
    
    a reference to a party to a document includes that partys successors and
permitted assigns;(h)
    
    a reference to a statute, regulation, proclamation, ordinance or by-law
includes all statutes, regulations, proclamations, ordinances or by-laws varying,
consolidating or replacing it, and a reference to a statute includes all regulations,
proclamations, ordinances and by-laws issued under that statute; and(i)
    
    a reference to a document or agreement includes all amendments or
supplements to, or replacements or novations of, that document or agreement.
 2
    
    RELEASE BY JHINV AND THE LIABLE ENTITIES2.1
    
    With effect from the Final Funding Agreement Date, JHINV hereby frees, releases and
discharges each Released Party and each Associated Person of each Released Party from all
Released Claims and shall procure to the extent it is able to that each of its Associated
Persons release each of the Released Parties and each Associated Person from all Released
Claims.2.2
    
    The parties acknowledge that the Released Parties hold the benefit of the releases in favour
of each Associated Person of each Released Party set out in clause 2.1on trust for that
Associated Person.




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##### 



7 2.3
    
    Nothing in this Deed can be taken as an admission by any of the Released Parties that it or
he has had any role in organising or procuring any unlawful action.2.4
    
    The Parties agree that the Liable Entities may, by executing a deed of accession, agree to
provide releases in favour of the Released Persons having the same scope as those given by
JHINV under this deed.2.5
    
    In consideration for the releases described in clause 2.1:
 (a)
    
    the ACTU agrees, if requested by JHINV, that it will:
 (i)
    
    write to persons persisting in bans or boycotts with respect to
JHINVs products requesting that such bans or boycotts be lifted;(ii)
    
    participate in discussions with JHINV and such persons to seek
the lifting of such bans or boycotts;
 (b)
    
    Unions NSW agrees, if requested by JHINV, that it will:
 (i)
    
    write to persons persisting in bans or boycotts in New South
Wales with respect to JHINVs products requesting that such bans or boycotts be
lifted;(ii)
    
    participate in discussions with JHINV and such persons to seek
the lifting of such bans or boycotts
 2.6
    
    The obligations in clause 2.5 will not apply while the release from civil liability
applicable to JHINV and certain related persons of JHINV (as contemplated in the Final Funding
Agreement) have been validly suspended.3
    
    BOYCOTTS3.1
    
    From the Final Funding Agreement Date, each of the ACTU, Unions NSW and Banton agrees to use
its or his best endeavours to achieve forthwith the lifting of all bans or boycotts on any
products manufactured, produced or sold by any member of the JHINV Group.3.2
    
    Subject to clause 3.4, the obligation of each of the ACTU, Unions NSW and Banton shall be a
continuing obligation whilever any bans or boycotts remain in place.3.3
    
    It is agreed that the endeavours required of the ACTU, Unions NSW and Banton under this
clause 3will be limited by the extent to which individuals and organisations which may have
imposed those bans or boycotts can be influenced by ACTU, Unions NSW or Banton using their
best endeavours to achieve the lifting of such bans or boycotts.3.4
    
    The obligations of the ACTU, Unions NSW and Banton under this clause 3shall be suspended
during any period in which JHINV is in breach of its obligations under the Final Funding
Agreement and that breach has not been remedied.3.5
    
    Nothing in this Deed is intended to or does constrain the rights of the ACTU and Unions NSW
or any of their Associated Persons to act in a way which is otherwise lawful.




---



##### 



8 4
    
    CONFIDENTIALITY4.1
    
    Subject to clause 4.2, each party shall keep the terms of this Deed confidential.4.2
    
    A party may make any disclosures in relation to this Deed as set out in the Annexure or as
necessary to:
 (a)
    
    its related bodies corporate, professional advisors, bankers, financial
advisors and financiers, if those persons undertake to keep the information disclosed
confidential;(b)
    
    comply with any applicable law or requirement of any regulatory body
(including any relevant stock exchange) or to comply with the terms of the Final
Funding Agreement;(c)
    
    any of its employees to whom it is necessary to disclose the information,
on receipt of an undertaking from that employee to keep the information confidential;
or(d)
    
    to gain necessary approvals for the purpose of entering into this deed
provided that for any disclosure other than those described in paragraphs (a) to (c)
above, the recipient is informed at the time of such disclosure that confidentiality
restraints apply in relation to the information disclosed; or(e)
    
    on and from the time James Hardie has publicly released an explanatory
memorandum in relation to the proposal set out in the Final Funding Agreement, to any
of its Associated Persons to whom it is necessary to disclose the information, on
receipt of an undertaking from that Associated Person to keep the information
confidential.
 5
    
    DEED MAY BE USED IN COURT
  6
    
    GOVERNING LAW
  7
    
    ENTRY INTO DEED
  8
    
    SEVERANCE




---



##### 



9 9
    
    VARIATION OF DEED
  10
    
    COUNTERPARTS
  11
    
    NOTICES11.1
    
    A notice, approval, consent, nomination or other communication (Notice) to a person relating
to this deed:
 (i)
    
    must state that it is a notice relating to this deed;(ii)
    
    shall state the relevant clause in this deed to which the notice relates,
provided that any such failure to comply with this requirement shall not affect the
validity of any such notice;(iii)
    
    must be in legible writing; and(iv)
    
    must be in English.
 11.2
    
    If the Notice is to either or both of JHINV and/or the Performing Subsidiary then it must be
addressed as follows:
 Name:
    
    James Hardie Industries NVAttention:
    
    The Chairman and The Chief Financial OfficerAddress:
    
    Level 3, 20 Pitt Street, Sydney NSW 2000Facsimile:
    
    + 61 2 8274 5218
 11.3
    
    If the Notice is to the NSW Government then it must be addressed as follows:
 Name:
    
    The State of New South Wales, c/- The Cabinet OfficeAttention:
    
    Deputy Director-General (Legal)Address:
    
    Level 39, Governor Macquarie Tower, Farrer Place, Sydney, NSW 2000Facsimile:
    
    +61 2 9228 3062
 with copies to, if the NSW Government has appointed a Director or any Directors, to each
such Director as notified to the Trustee from time to time by such Director.11.4
    
    If the Notice is to the ACTU then it must be addressed as follows:
 Name:
    
    Australian Council of Trade UnionsAttention:
    
    The Secretary




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##### 



10 Address:
    
    Level 2, 393 Swanston St, Melbourne, Victoria 3000Facsimile:
    
    03 9663 8220
 11.5
    
    If the Notice is to Unions NSW then it must be addressed as follows:
 Name:
    
    Unions NSWAttention:
    
    The SecretaryAddress:
    
    10th Floor, 377  388 Sussex St, Sydney, 2000Facsimile:
    
    02 9261 305
 11.6
    
    If the Notice is from a corporation then an officer of that corporation must sign the Notice.11.7
    
    Notice is sent by the sender and received by the receiver:
 (i)
    
    if the Notice is hand delivered, upon delivery to the receiving Party;(ii)
    
    if the Notice is sent by facsimile, upon the successful completion of the
relevant transmission;(iii)
    
    if the Notice is sent by registered mail within Australia, 2 Business Days
after the registration of the notice of posting; and(iv)
    
    if the Notice is sent by ordinary mail within Australia, 3 Business Days
from and including the date of postage.
 11.8
    
    For the avoidance of doubt, Notice shall not be sent by electronic email.11.9
    
    In this clause 11, a reference to a Party receiving a Notice includes a reference to the
receivers officers, agents or employees.11.10
    
    A Party may vary any of the details relating to it contained in this clause 11at any time
by Notice to the other Parties.11.11
    
    Where a Notice to a Party must be copied to another Person, each such Notice must be
despatched on the same day (but any failure to comply with this clause 11.11shall not affect
the validity of any such Notices).11.12
    
    Court action shall not be commenced by any party to the Deed with respect to any alleged
breach of this Deed until 10 Business Days have elapsed after the giving of Notice to each of
the ACTU and Unions NSW containing particulars of the alleged breach and an invitation to
rectify the breach.




---



##### 



EXECUTEDby the parties as a Deed:EXECUTEDbyJAMES HARDIE INDUSTRIES NV))Signature of Director
    
    
    
    
    
    Signature of Director/SecretaryName of Director
    
    
    
    
    
    Name of Director/SecretaryEXECUTEDon behalf ofTHE AUSTRALIAN COUNCIL OF TRADE UNIONSby:(ACN 008 394 509):))Signature of witness
    
    
    
    
    
    Signature of SecretaryName of witness
    
    
    
    
    
    Name of SecretaryEXECUTEDon behalf ofUNIONS NEW SOUTH WALESby:(ACN 008 394 509):))Signature of witness
    
    
    
    
    
    Signature of AssistantSecretaryName of witness
    
    
    
    
    
    Name of AssistantSecretarySigned byBERNARD DOUGLAS BANTONin the presence of:WitnessName




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##### 



Annexure
5  JHINV Guarantee
 DATED [                ]
 AICF Limited in its capacity as trustee for
 the
 Asbestos Injuries Compensation Foundation
  The State of New South Wales Government
  James Hardie Industries N.V.
  
 PARENT GUARANTEE




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##### 



THIS
PARENT GUARANTEE
 BETWEEN:
 (1)
    
    AICF Limited [            ], a company limited by guarantee
incorporated under the laws of the State of New South Wales, Australia, having its registered
office at
            ,
            
in its capacity as trustee for the
Asbestos Injuries Compensation Foundation,
[address, registration, etc.] (the Fund Trustee),
duly represented by:
  (2)
    
    The State of New South Wales, [address etc.],
Australia (the NSW Government), duly represented by:
  (3)
    
    James Hardie Industries N.V., a company incorporated under the laws of the Netherlands, with
its corporate seat in Amsterdam, the Netherlands, registered with the trade register of the
Chamber of Commerce with number 34106455 (the
Guarantor), duly represented by:
 Parties Party
 RECITALS:
 (1)
    
    The NSW Government, LGTDD Pty Ltd and the Guarantor are parties to a Final Funding Agreement
dated 1 December 2005 (the Final Funding Agreement).(2)
    
    The Fund Trustee has become a party to the Final Funding Agreement by executing a Deed of
Accession on [date].(3)
    
    Pursuant to Clause 10of the Final Funding Agreement, the Guarantor has agreed to deliver
this Guarantee to the Fund Trustee and the NSW Government.(4)
    
    The NSW Government is not a creditor of the Guarantor in relation to the payment of the
Guaranteed Obligations.
 IT IS AGREED AS FOLLOWS
 1.
    
    INTERPRETATIONCapitalised terms shall be used herein as such terms are defined in the Final Funding
Agreement (and such terms will be interpreted in accordance with the




---



##### 



2 laws of New South Wales, Australia, being the governing law of the Final Funding Agreement),
unless defined otherwise in this Guarantee; andGuarantee means this guarantee; andGuaranteed Obligations means any of the payment obligations of the Performing Subsidiary
to the Fund Trustee under the Final Funding Agreement, including the obligation to pay the
Wind-Up or Reconstruction Amount, and Guaranteed Obligation means any one such payment
obligation. Where the Performing Subsidiary would have been liable to make a payment under
the Final Funding Agreement but for the Liquidation or Insolvency of the Performing
Subsidiary or the occurrence of a Wind-up Event or Reconstruction Event in respect of the
Performing Subsidiary, it will be taken still to be liable for the purposes of this
Guarantee.2.
    
    GUARANTEE2.1
    
    The Guarantor hereby irrevocably and unconditionally:
 (a)
    
    guarantees to the Fund Trustee the due and punctual performance by the
Performing Subsidiary of the Guaranteed Obligations;(b)
    
    guarantees to the Fund Trustee that, whenever the Performing Subsidiary does
not pay any amount due under any of its Guaranteed Obligations, the Guarantor shall
immediately on first written demand by the Fund Trustee pay that amount to the Fund
Trustee, as if it were the principal obligor thereof; and(c)
    
    guarantees to the Fund Trustee that it shall immediately on first written
demand by or on behalf of the Fund Trustee pay to the Fund Trustee, all costs and
expenses incurred by the Fund Trustee in relation to the protection or enforcement of
its rights under this Guarantee and all costs and damages incurred by the Fund Trustee
as a result of the Performing Subsidiary not fulfilling one or more of the Guaranteed
Obligations when due.
 2.2
    
    The obligations of the Guarantor pursuant to Clause 2.1shall be continuing obligations and
extend to all sums payable by the Performing Subsidiary under the Guaranteed Obligations. The
obligations of the Guarantor pursuant to Clause 2.1shall remain in full force and effect
until all the Guaranteed Obligations shall have been paid, satisfied or discharged in full.
Termination of this Guarantee is only allowed if and when the Final Funding Agreement is
terminated (otherwise than due to breach or default by the Guarantor or the Performing
Subsidiary) and the Performing Subsidiary has fully discharged all of the Guaranteed
Obligations. The obligations of the Guarantor shall remain in full force in the event that the
Performing Subsidiary is replaced by another subsidiary of the Guarantor in accordance with
clause 6.2 of the Final Funding Agreement or in the events described in Clause 2.1(d).




---



##### 



3 2.3
    
    This Guarantee is a guarantee of performance of the Guaranteed Obligations by payment of all
amounts that are the subject of the Guaranteed Obligations when due and payable.2.4
    
    This Guarantee is not a contract of surety (borgtocht). The obligations of the Guarantor
hereunder are independent of the obligations of the Performing Subsidiary and the obligations
of any other guarantor of the obligations of the Performing Subsidiary under the Final Funding
Agreement.2.5
    
    Payment by the Guarantor of a portion, but not all, of the Guaranteed Obligations shall in no
way limit, affect, modify, abridge or extinguish the Guarantors liability for any portion of
the Guaranteed Obligations which has not been paid. Without limiting the generality of the
foregoing, if the Fund Trustee is awarded a judgment in any proceedings brought to enforce the
Guarantors obligations to pay a portion of the Guaranteed Obligations, such judgment shall
not be deemed to release the Guarantor from its obligation to pay the portion of the
Guaranteed Obligations that is not the subject of such proceedings, and such judgment shall
not, except to the extent satisfied by the Guarantor, limit, affect, modify, abridge or
extinguish any part of the Guarantors liability in respect of the Guaranteed Obligations.2.6
    
    This Guarantee is independent of, in addition to and shall not prejudice or affect or be
prejudiced or be affected by any other right, remedy, guarantee, indemnity or security and may
be enforced without first having recourse to the same or any other mortgage, charge, pledge or
lien now or hereafter held by or available to the Fund Trustee and/or the NSW Government.2.7
    
    If any discharge (whether in respect of the Guaranteed Obligations or any security for those
obligations or otherwise) or arrangement is made in whole or in part on the faith of any
payment, security or other disposition by the Performing Subsidiary or the Guarantor which is
subsequently avoided or which must be restored (without limitation) on bankruptcy,
liquidation, moratorium of payment or otherwise, the liability of the Guarantor will continue
or be reinstated as if the discharge or arrangement had not occurred. This clause 2.7 survives
the discharge of this Deed.2.8
    
    Unless and until all the Guaranteed Obligations have been satisfied or discharged in full,
the Guarantor shall not, after a claim has been made or by virtue of any payment or
performance under this Guarantee, in respect of any payment made to the Fund Trustee and/or
the NSW Government:
 (a)
    
    exercise any right of subrogation in respect of or claim to be subrogated to
any rights, security or moneys held, received or receivable by the Fund Trustee;(b)
    
    exercise against or claim from the Performing Subsidiary any right of
contribution or recourse;(c)
    
    claim as a creditor of the Performing Subsidiary in competition with the Fund
Trustee; or




---



##### 



4 (d)
    
    have the benefit of or take any action to receive or claim any payment,
distribution or security in respect of the Guaranteed Obligations or amounts payable
under this Guarantee from or on account of the Performing Subsidiary, or exercise any
right of set-off as against the Performing Subsidiary (and the Guarantor waives any
right it would otherwise have to have the benefit of or receive or claim any such
payment, distribution or security or to exercise any such right of set-off).
 2.9
    
    This Guarantee will not be discharged or otherwise affected as security for the Guaranteed
Obligations as a result of any of the following:
 (a)
    
    bankruptcy, moratorium of payment, winding-up, reconstruction, liquidation or
similar proceedings relative to the Performing Subsidiary;(b)
    
    any change in the status, function, control or ownership of the Performing
Subsidiary;(c)
    
    any extension of time or other forbearance being granted or agreed to be
granted to the Performing Subsidiary in respect of its Guaranteed Obligations;(d)
    
    any amendment to, or any increase, variation, waiver or release of, any of the
Guaranteed Obligations or any termination, amendment or variation of the Final Funding
Agreement (and any reference herein to the Final Funding Agreement shall be taken as
referring to the Final Funding Agreement as amended or varied from time to time);(e)
    
    the taking, variation, compromise, exchange, substitution, renewal or release
of, or refusal or neglect to perfect, take up or enforce, any rights or remedies
against, or security over assets of the Performing Subsidiary or any other person, or
any non-presentment or non-observance of any formality or other requirement in respect
of any instruments or any failure to realise the full value of any security;(f)
    
    any present or future guarantee, indemnity, mortgage, charge, pledge, lien or
other security or right or remedy held by or available to the Fund Trustee being or
becoming wholly or in part void, voidable or unenforceable on any ground whatsoever; or(g)
    
    any other act, event or omission (other than performance by the Guarantor of
this Guarantee) which, but for this clause might operate to discharge, extinguish,
impair or otherwise affect any of the obligations of the Guarantor contained herein or
any of the rights, powers or remedies conferred in respect of the Guarantor upon the
Fund Trustee and/or the NSW Government by this Guarantee or by law.
 3.
    
    ENFORCEMENT3.1
    
    The Fund Trustee may enforce this Guarantee only upon the occurrence of (i) a breach of any
Guaranteed Obligation by the Performing Subsidiary; (ii) a




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##### 



5 Wind-Up Event; or (iii) a Reconstruction Event, in accordance with and subject to clause 10
of the Final Funding Agreement.3.2
    
    A claim under this Guarantee in respect of the obligation of the Performing Subsidiary to
make Annual Payments (and/or instalments thereof) under clause 9 of the Final Funding
Agreement, can only be made if the Performing Subsidiary has been in default (verzuim) for a
period of 40 days from the date when such Annual Payment (or any instalment thereof) was due,
provided that:
 (a)
    
    the Performing Subsidiary or the Guarantor has immediately provided to the NSW
Government reasons for the default and such reasons are reasonable in the circumstances; and(b)
    
    the Guarantor has promptly after that due date entered into and continued to
pursue or been ready, willing and able to enter into and pursue discussions with the
NSW Government and (if available) the Fund Trustee to remedy the breach and provides to
the Fund Trustee and NSW Government material particulars of the breach and the proposed
remedy or remedies;(c)
    
    the Guarantor is not and does not become Insolvent at any time during that
period; and(d)
    
    subject to clause 10 of the Final Funding Agreement, a Reconstruction Event
does not occur at any time during that period,
 provided that such period shall automatically expire upon any of the requirements in
paragraphs (a) to (d) inclusive (Moratorium Requirements) ceasing to be satisfied.If the Moratorium Requirements remain satisfied at the expiry of the above 40 day period and
if in the opinion of the Fund Trustee and the NSW Government (acting reasonably) there is a reasonable prospect
of the Guarantor or the Performing Subsidiary paying the outstanding amount within a further
period of 50 days, the initial 40 day period shall be extended once by a further 50 days,
save that such period shall automatically expire upon any of the Moratorium Requirements
ceasing to be satisfied.3.3
    
    Without prejudice to clause 3.2 above, the Fund Trustee shall not be obliged before bringing
a claim under this Guarantee:
 (a)
    
    to take any action against the Performing Subsidiary or to obtain judgment in
any court against the Performing Subsidiary or any other person;(b)
    
    to file any claim in a bankruptcy, moratorium of payment, winding-up,
liquidation or similar proceedings relative to the Performing Subsidiary or any other
person; or




---



##### 



6 (c)
    
    to make, enforce or seek to enforce any claim against the Performing Subsidiary
or any other person under any agreement or arrangement.
 3.4
    
    The restrictions to the enforcement of the Guarantee as set out in clause 3.2 of this
Guarantee do not apply in respect of claims under or in relation to the Guarantee brought by
the Fund Trustee in summary proceedings (kort geding) or other proceedings to obtain urgent
interlocutory Court relief.3.5
    
    The Guarantor waives any and all rights of set off (verrekening), counterclaim or suspension
(opschorting) it may have at any time with respect to amounts payable hereunder against
amounts owed to it by the Fund Trustee.3.6
    
    The Guarantor waives to the fullest extent allowed by the laws of the Netherlands all rights,
privileges, defences and exceptions pursuant to the Articles 6:139, 7:852, 853, 854, 855 and
856 of the Dutch Civil Code.3.7
    
    To the extent permitted by law the Guarantor hereby waives, for the benefit of the Fund
Trustee and the NSW Government:
 (a)
    
    any right to require the Fund Trustee and/or the NSW Government, as a condition
of payment or performance by the Guarantor, to:
 (i)
    
    proceed against or exhaust any security held from the
Performing Subsidiary, any other guarantor or any other Person,(ii)
    
    proceed against or have resort to any balance of any credit on
the books of the Fund Trustee and/or the NSW Government in favour of the
Performing Subsidiary or any other Person, or(iii)
    
    pursue any other remedy in the power of the Guarantee Trustee
and/or the NSW Government whatsoever;
 (b)
    
    any defence arising by reason of the incapacity, lack of authority or any
disability or other defence of the Performing Subsidiary or any other guarantor,
including any defence based on or arising out of the lack of validity or the
unenforceability of the Guaranteed Obligations or any agreement or instrument relating
thereto or by reason of the cessation of the liability of the Performing Subsidiary or
any other guarantor from any cause other than payment in full of the Guaranteed
Obligations;(c)
    
    any defence based upon any statute or rule of law which provides that the
obligation of a surety must be neither larger in amount nor in other respects more
burdensome than that of the principal;(d)
 (i)
    
    any principles or provisions of law, statutory or otherwise,
which are or might be in conflict with the terms hereof and any discharge of
the Guarantors obligations hereunder;




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##### 



7 (ii)
    
    the benefit of any statute of limitations affecting the
Guarantors liability hereunder or the enforcement hereof, and(iii)
    
    promptness, diligence and any requirement that the Fund
Trustee and/or the NSW Government protect, secure, perfect or insure any
security interest or lien or any property subject thereto;
 (e)
    
    notices, demands, presentments, protests, notices of protest, notices of
dishonour and notices of any action or inaction, including acceptance hereof, notices
of default hereunder, the Final Funding Agreement, any other Related Agreement or any
agreement or instrument related thereto, notices of any renewal, extension or
modification of the Guaranteed Obligations or any agreement related thereto, notices of
any extension of credit to the Performing Subsidiary and any right to consent to any
thereof; and(f)
    
    any defences or benefits that may be derived from or afforded by law which
limit the liability of or exonerate guarantors or sureties, or which may conflict with
the terms hereof.
 4.
    
    REPRESENTATIONS AND WARRANTIES4.1
    
    The Guarantor warrants that the following is true, accurate and not misleading as of the date
of this Guarantee and will at all times after the date of this Guarantee up to and including
the Commencement Date be true, accurate and not misleading:
 (a)
    
    The Guarantor has been duly incorporated and is validly existing under the laws
of its jurisdiction and has the necessary corporate capacity and power to enter into
the Guarantee and to perform its obligations under the Guarantee.(b)
    
    All corporate and other action required to be taken by the Guarantor to
authorise the execution of the Guarantee and the performance of its obligations under
the Guarantee has been duly taken.(c)
    
    The Guarantee has been duly executed on behalf of the Guarantor and constitutes
legal, valid and binding obligations of the Guarantor, enforceable in accordance with
their terms subject to the terms of the opinion from De Brauw Blackstone Westbroek
referred to in schedule 5 of the Final Funding Agreement.(d)
    
    The execution and performance of the Guarantee do not conflict with or result
in a breach of any provision of the articles of association of the Guarantor, including
but not limited to its corporate purpose, or any provision of any applicable law in
force on the date of this Guarantee or any agreement to which the Guarantor is a party.(e)
    
    No approval, consent, license or notice to any regulatory or governmental body
(other than such approvals, consents, licenses or




---



##### 



8 notices as have been obtained or given) is necessary to ensure the validity,
enforceability or performance of the obligations of the Guarantor under the
Guarantee.
 5.
    
    NOTICES5.1
    
    All notices, consents, waivers and other communications under this Guarantee must be in
writing in English and delivered by hand or sent by regular mail, registered mail, express
courier, facsimile or e-mail to the appropriate addresses and facsimile numbers set out below
or to such address and facsimile number as a Party may notify to the other Party from time to
time. A notice shall be effective upon receipt and shall be deemed to have been received at
the time of delivery (if delivered by hand, registered mail or express courier) or at the time
of successful transmission (if delivered by fax or e-mail).
 To the Fund Trustee:Name:Address:Fax number:Attention:To the NSW Government:Name:Address:Fax number:Attention:To the Guarantor:Name:Address:Fax number:Attention:




---



##### 



9 6.
    
    NSW GOVERNMENTS RIGHT TO ENFORCE6.1
    
    The parties agree and acknowledge that clause 16.6 of the Final Funding Agreement provides
that the NSW Government shall be entitled directly to enforce all promises made by the
Guarantor to the Fund Trustee under this Guarantee to the full extent permitted by law on and
subject to the terms of clause 16.6 of the Final Funding Agreement.6.2
    
    Any person (including, but not limited to, a firm, body corporate, unincorporated
association, court or authority) who deals with the NSW Government in good faith in relation
to this Guarantee may, without enquiry, assume that the NSW Government has complied with
clause 16.6 of the Final Funding Agreement unless the contrary is proved.6.3
    
    The parties agree and acknowledge that:
 (a)
    
    the Guarantee is a Related Agreement under the Final Funding Agreement;(b)
    
    under an Irrevocable Power of Attorney, a copy of which is attached as Annexure
A to this Guarantee, and in addition to its rights under clause 6.1 of this Guarantee,
the NSW Government shall have the power directly to enforce as an attorney of the Fund
Trustee under the Irrevocable Power of Attorney and on behalf of the Fund Trustee all
promises made by the Guarantor to the Fund Trustee under this Guarantee, subject to to
the terms of clause 16.6 of the Final Funding Agreement;(c)
    
    under the Final Funding Agreement, the NSW Government and the Fund Trustee
covenanted that they will not amend or replace that Irrevocable Power of Attorney
without the prior written consent of the Guarantor, not to be unreasonably withheld;
and(d)
    
    any actions taken by the NSW Government under that Irrevocable Power of
Attorney in respect of this Guarantee are valid and binding to the extent such actions
are made in accordance with that Irrevocable Power of Attorney.
 6.4
    
    On the legal relationship of the Beneficiary and the NSW Government vis-à-vis the Guarantor,
article 6:16 of the Dutch Civil Code does not apply.7.
    
    CHOICE OF LAW AND JURISDICTIONThis Guarantee is governed by the laws of the Netherlands, with the exception of the
Netherlands private international law. Any dispute arising out of or in connection with
this Guarantee shall be exclusively decided by the competent court in Amsterdam.8.
    
    COUNTERPARTSThis Guarantee may be executed in any number of counterparts. All counterparts together
will be taken to be one instrument.




---



##### 



10




---



##### 



11 
 [Irrevocable
Power of Attorney as Annexure A]




---



##### 



Annexure 6  NSW Government Deed of Release
 JAMES HARDIE INDUSTRIES N.V.
 THE STATE OF NEW SOUTH WALES
 
 DEED OF RELEASE




---



##### 



THIS DEED
 1.
    
    James Hardie Industries N.V.ARBN 097 829 895 incorporated in the
Netherlands and having its registered office at Atrium, Unit 04-07,
Strawinskylaan 3077, 1077ZX Amsterdam, The Netherlands, and with its
Australian registered office at Level 3, 22 Pitt Street, Sydney, New
South Wales (JHINV)2.
    
    The State of New South Wales (NSW Government)
 RECITALS
 A.
    
    This deed is entered into by the Parties described above in the following context (some of
the expressions used in these recitals being defined in clause 1of this deed):
 (a)
    
    on 21 December 2004, the Initial Negotiating Parties entered into a non-binding
Heads of Agreement which set out the agreed position of the Initial Negotiating Parties
in relation to the principles on which the binding agreement referred to in Recital (b)
would be based and the key standing considerations relevant to implementing those
principles to be reflected in the binding agreement; and(b)
    
    on or about the date of this deed, the NSW Government, JHINV and the Performing
Subsidiary entered into a deed (the Principal Deed) which set out the agreed position
of those persons in relation to the basis on which, subject to the satisfaction or
waiver of the conditions set out in the Principal Deed, JHINV and/or the Performing
Subsidiary will provide funding on a long-term basis to the Trustee.
 B.
    
    The Parties enter into this deed to give effect to the releases contemplated in clause
12.1(c) of the Heads of Agreement.
 THIS DEED WITNESSES
 1
    
    DEFINITIONS AND INTERPRETATION1.1
    
    DefinitionsIn this deed:ABN 60means ABN 60 Pty Limited (ABN 60 000 009 263).ABN 60 Foundationmeans ABN 60 Foundation Pty Ltd (ACN 106 266 611).ACTUmeans Australian Council of Trade Unions of Level 2, 393 Swanston Street,
Melbourne in the State of Victoria.Amabameans Amaba Pty Limited (ABN 98 000 387 342).Amacameans Amaca Pty Limited (ABN 49 000 035 512).Asbestos Support Groupsmeans each of The Asbestos Diseases Foundation of Australia,
Asbestos Diseases Society of Australia Inc, The Asbestos Victims




---



##### 



2 Association of South
Australia, Queensland Asbestos Related Disease Support
Society, Gippsland Asbestos Related Disease Support Inc, and Asbestos Diseases
Society of Victoria.Associated Personmeans:
 (a)
    
    each member of the JHINV Group;(b)
    
    each Liable Entity; and(c)
    
    each past and present director, officer, employee, adviser or agent of any
person described in paragraphs (a) or (b) of this definition.
 Bantonmeans Bernie Banton of 133-7 Parramatta Road Granville, in the State of New
South Wales, as the designated representative of the Asbestos Support Groups.Business Daymeans a day (not being a Saturday or a Sunday) on which banks are open
for general banking business in Sydney.Commencement Datemeans the date on which the Release Legislation commences.Controlled Entitieshas the same meaning as in the Principal Deed.Deeds of Covenant and Indemnitymeans:
 (a)
    
    the deed of that name dated 16 February 2001 and entered into between JHIL,
Amaba and Amaca and any amendments thereto (including without limitation pursuant to
the amending deed dated 10 September 2001); and(b)
    
    the Deed of Covenant Indemnity and Access between JHINV and ABN 60 dated 31
March 2003 and any amendments thereto.
 Fundmeans the Asbestos Injury (JH) Compensation Foundation to be established
pursuant to a trust deed in the form initialled by the Parties for the purposes of
identification.Heads of Agreementmeans the non-binding agreement entered into on 21 December 2004
between the Initial Negotiating Parties.Initial Negotiating Partiesmeans each of JHINV, the NSW Government, the ACTU, Unions
NSW and Banton.Jackson Inquirymeans the Special Commission of Inquiry that was commissioned, by
Letters Patent dated 27 February 2004 and 30 June 2004, to inquire into and report on
certain matters relating to the establishment of MRCF.JHILmeans the company formerly known as James Hardie Industries Limited (now ABN
60).JHIL Groupmeans JHIL and its Controlled Entities from time to time.JHINV Groupmeans JHINV and its Controlled Entities.Liable Entitiesmeans Amaca, Amaba and ABN 60.MRCFmeans the Medical Research & Compensation Foundation (ABN 21 095 924 137).Noticehas the meaning given to it in clause 11.




---



##### 



3 Partiesmeans the parties to this deed.Performing Subsidiarymeans LGTDD Pty Limited or, if a subsidiary of JHINV other than
that entity is nominated under clause 6.2of the Principal Deed, that subsidiary.Personincludes any general partnership, limited partnership, corporation, limited
liability company, joint venture, trust, business trust, governmental agency,
co-operative, association, individual or other entity, and the heirs, executors,
administrators, legal representatives, successors and assigns of such a person as the
context may require.Principal Deedmeans the deed of that name dated on or before the date of this deed
initially between JHINV, the Performing Subsidiary and the NSW Government.Release Legislationhas the same meaning as in clause 1 of the Principal Deed.Relevant Mattersmeans all matters relating to or arising out of any of the following or
their facts, matters and circumstances:
 (a)
    
    the establishment and underfunding or funding of the MRCF, and the February
2001 ABN 60 group corporate reorganisation (including, without limitation, the
transfer of the Liable Entities out of the JHIL Group, representations made to
incoming directors of the Liable Entities and other third parties regarding the
Liable Entities and their assets and liabilities, the media releases of ABN 60 of 16
February 2001 and of JHINV of 29 and 30 October 2003 and any statements made in
relation to any of the foregoing matters);(b)
    
    the Deeds of Covenant and Indemnity;(c)
    
    the transfers of assets, and the dividends and management fees paid, by the
Liable Entities, as described in the report of the Jackson Inquiry;(d)
    
    the August to October 2001 ABN 60 group corporate reorganisation (including
without limitation the scheme of arrangement in relation to ABN 60 of August to
October 2001, the contemporaneous reduction of capital of (and cancellation of fully
paid ordinary shares in) ABN 60 and subscription by JHINV for partly paid shares in
ABN 60, the subsequent cancellation of those partly paid shares in ABN 60 in March
2003 and representations to third parties and the court and any statements made in
relation to any of the foregoing matters); and(e)
    
    the transfer of assets from ABN 60 to JHINV, the establishment of the ABN
60 Foundation Limited and ABN 60 Foundation Trust, and the allotment of fully paid
            shares in ABN 60 to ABN 60 Foundation.
 Trusteemeans the trustee of the Fund from time to time, in its capacity as trustee,
initially being Asbestos Injuries Compensation Fund Trustee Limited.Unions NSWmeans Unions New South Wales of 10th Floor, 377-383 Sussex
Street, Sydney in the State of New South Wales.1.2
    
    InterpretationIn this deed, unless the context otherwise requires:




---



##### 



4 (a)
    
    headings are for convenience only and do not affect the interpretation of
this agreement;(b)
    
    any reference to civil liability has its natural and ordinary meaning;(c)
    
    words importing the singular include the plural and vice versa;(d)
    
    words importing a gender include any gender;(e)
    
    other parts of speech and grammatical forms of a word or phrase defined in
this agreement have a corresponding meaning;(f)
    
    an expression importing a natural person includes any company, partnership,
joint venture, association, corporation or other body corporate and vice versa;(g)
    
    a reference to any thing (including, but not limited to, any right)
includes a part of that thing;(h)
    
    a reference to a Party to a document includes that Partys successors and
permitted assigns;(i)
    
    a reference to a statute, regulation, proclamation, ordinance or by-law
includes all statutes, regulations, proclamations, ordinances or by-laws varying,
consolidating or replacing it, and a reference to a statute includes all regulations,
proclamations, ordinances and by-laws issued under that statute; and(j)
    
    a reference to a document or agreement includes all amendments or
supplements to, or replacements or novations of, that document or agreement.
 2
    
    DEED BINDS THE CROWNThis deed binds the Crown in right of New South Wales.3
    
    RELEASES BY NSW GOVERNMENT3.1
    
    With effect on and from the Commencement Date, and to the maximum extent permitted by law
pursuant to this deed (but without requiring any further act by the NSW Government), the NSW
Government releases each of JHINV and each Associated Person from any civil liability relating
to or arising out of any of the Relevant Matters.3.2
    
    The Parties acknowledge that JHINV holds the benefit of the release set out in clause 3.1in
favour of an Associated Person on trust for that Associated Person.3.3
    
    Nothing in this deed can nor shall be taken as an admission by JHINV, the Performing
Subsidiary or any of their Controlled Entities, directors, officers, employees, advisers or
agents (past and present) that it or he or she has had any role in organising or procuring any
unlawful action or is or has been in breach of any law.




---



##### 



5 
 3.4
    
    Each release given under this deed in favour of any Associated Person who is a natural person
is absolute, unconditional and irrevocable.
 3.5
    
    Each release given under this deed in favour of JHINV or any Associated Person which is not a
natural person shall be suspended whilesoever:
 (i)
    
    the Performing Subsidiary shall be and remains in breach of any obligation to
make a Funding Payment under the Principal Deed and such breach shall have remained
unremedied for not less than 3 months and remains unremedied;(ii)
    
    JHINV is in breach of clause 7of the Principal Deed and that breach has not
been rectified within a reasonable period (of not less than 3 months) of JHINV having
received a Notice under clause 12.1(f) of the Principal Deed; or(ii)
    
    JHINV is and remains in breach of clause 7of the Principal Deed and JHINV has
not given a Notice to the NSW Government under clause 7.9of the Principal Deed in
respect of that breach, and the NSW Government has given JHINV at least 30 days
Notice that the suspension applies.
 4
    
    CONFIDENTIALITY4.1
    
    Subject to clause 4.2, each Party shall keep the terms of this deed strictly confidential.4.2
    
    A Party may make any disclosures in relation to this deed in the manner and to the extent
permitted under the Principal Deed.5
    
    DEED MAY BE USED IN COURT
 (a)
    
    Subject to clause 5(b), except in relation to a breach of this deed, or
whilesoever any release given pursuant to this deed has been suspended in accordance
with clause 3.5, and without affecting the continuing obligations of the Parties
pursuant to this deed, this deed may be pleaded as a full and complete defence by
JHINV or any Associated Person to any civil liability actions, suits, or proceedings
commenced, continued or taken by the NSW Government in relation to any of the
Relevant Matters.(b)
    
    None of JHINV nor any Associated Person which is not a natural person may
plead the releases in favour of that person given under clause 3.1in defence to any
claim against that person by the NSW Government while that release has been suspended
under clause 3.5.
 6
    
    GOVERNING LAW
  7
    
    ENTRY INTO DEED




---



##### 



6 8
    
    SEVERANCE
  9
    
    VARIATION OF DEED
  10
    
    COUNTERPARTS
  11
    
    NOTICES11.1
    
    A notice, approval, consent, nomination or other communication (Notice) to a person
relating to this deed:
 (i)
    
    must state that it is a notice relating to this deed;(ii)shall state the relevant clause in this deed to which the notice relates;(iii)must be in legible writing; and(iv)must be in English.
 11.2
    
    If the Notice is to JHINV then it must be addressed as follows:
 Name: James Hardie Industries NVAttention: The ChairmanAddress: Level 3, 20 Pitt Street, Sydney NSW 2000Facsimile: (02) 8274 5217With a copy to:Attention: The Chief Legal CounselAddress: Atrium, Unit 04-07, Strawinskylaan 3077, 1077ZX Amsterdam, The NetherlandsFacsimile: 31 (0) 20 404 2544
 11.3
    
    If the Notice is to the NSW Government then it must be addressed as follows:
 Name: The State of New South Wales, c/- The Cabinet OfficeAttention: Deputy Director-General (Legal)




---



##### 



7 Address: Level 39, Governor Macquarie Tower, Farrer Place, Sydney, NSW 2000Facsimile: 02 9228 3062
 11.4
    
    If the Notice is from a corporation then an officer of that corporation must sign the Notice.11.5
    
    Notice is sent by the sender and received by the receiver:
 (i)
    
    if the Notice is hand delivered, upon delivery to the receiving Party;(ii)
    
    if the Notice is sent by facsimile, upon the successful completion of the
relevant transmission;(iii)
    
    if the Notice is sent by registered mail within Australia, 2 Business Days
after the registration of the notice of posting; and
 11.6
    
    If the Notice is sent by ordinary mail within Australia, 3 Business Days from and including
the date of postage11.7
    
    For the avoidance of doubt, Notice shall not be sent by electronic email.11.8
    
    In clause 11.5, a reference to a Party receiving a Notice includes a reference to the
receivers officers, agents or employees.11.9
    
    A Party may vary any of the details relating to it or its officers contained in this clause
11.2at any time by Notice to the other Parties.11.10
    
    Where a Notice to a Party must be copied to another Person, each such Notice must be
despatched at the same time and using the same method and upon failure to do so, each such
Notice will be deemed to be given at the time and by the method of despatch of the last such
Notice.




---



##### 



EXECUTEDby the Parties as a Deed:EXECUTEDbyJAMES HARDIE INDUSTRIES NV))Signature of Director
    
    
    
    
    
    Signature of Director/SecretaryName of Director
    
    
    
    
    
    Name of Director/SecretaryEXECUTEDbyTHE HONOURABLE MORRIS IEMMA MP,PREMIER OF NEW SOUTH WALESFOR THE STATE OF NEW SOUTHWALES))Signature of witness
    
    
    
    
    
    SignatureName of witness
    
    
    
    
    
    Name




---



##### 



Annexure 7A  Intercreditor Deed (JHINV)
 Final draft 10
Annexure 7A to the Final Funding Agreement
DATE: 01.12.2005
    
    (GILBERT TOBIN LOGO)
   INTERCREDITOR DEED
 THE STATE OF NEW SOUTH WALES
ASBESTOS INJURIES
COMPENSATION FUND TRUSTEE
LIMITED (ABN [ INSERT ])
JAMES HARDIE INDUSTRIES N.V.
(ARBN 097 829 895)
[GUARANTEE TRUSTEE] (ABN
[ INSERT ])




---



##### 



CONTENTS
 1.
    
    PRELIMINARY
    
    
    31.1
    
    Defined Terms and Interpretation
    
    
    31.2
    
    Consideration
    
    
    31.3
    
    Crown immunity
    
    
    32.
    
    DEED
    
    
    42.1
    
    Effect
    
    
    42.2
    
    Benefit
    
    
    42.3
    
    Inconsistency
    
    
    63.
    
    INTERCREDITOR ARRANGEMENTS
    
    
    63.1
    
    Purpose of this deed
    
    
    63.2
    
    NSW Government not a creditor of JHINV
    
    
    73.3
    
    Turnover
    
    
    73.4
    
    Status and ranking of the Compensation Debt
    
    
    74.
    
    PROCEDURE ON INSOLVENCY
    
    
    84.1
    
    Proceeds held on trust
    
    
    84.2
    
    Distribution of Proceeds
    
    
    84.3
    
    Payment of amounts recovered
    
    
    94.4
    
    Residual Rights
    
    
    94.5
    
    No exercise of Financiers' rights
    
    
    104.6
    
    Substitution of the Fund Trustee
    
    
    114.7
    
    Additional Rights
    
    
    115.
    
    RIGHTS IN RELATION TO THE COMPENSATION DEBT
    
    
    125.1
    
    No prohibition
    
    
    125.2
    
    NSW Government Enforcement Rights
    
    
    136.
    
    COVENANTS
    
    
    146.1
    
    Restriction on dealings
    
    
    146.2
    
    No security
    
    
    15
 Page i




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##### 



7.
    
    GUARANTEE TRUSTEE
    
    
    167.1
    
    Appointment and removal
    
    
    167.2
    
    Sole Representative
    
    
    167.3
    
    Acknowledgement by Fund Trustee and the NSW Government
    
    
    167.4
    
    No Guarantee Trustee
    
    
    177.5
    
    Acknowledgement by Guarantee Trustee
    
    
    177.6
    
    Substitution of Guarantee Trustee
    
    
    187.7
    
    Standard of Duty
    
    
    197.8
    
    Functions, duties and obligations of the Guarantee Trustee
    
    
    198.
    
    VOTING IN INSOLVENCY PROCEEDINGS
    
    
    238.1
    
    Irrevocable Appointment of Attorney
    
    
    238.2
    
    Voting
    
    
    258.3
    
    Appointment of an Independent Expert
    
    
    278.4
    
    Role of the Independent Expert
    
    
    308.5
    
    Notice of determination by the Independent Expert
    
    
    328.6
    
    Assistance to the Independent Expert
    
    
    328.7
    
    Determination by the Independent Expert final
    
    
    328.8
    
    Consent of NSW Government required in certain circumstances
    
    
    328.9
    
    Options providing for a return to shareholders of JHINV
    
    
    338.10
    
    Defaulting or absent Guarantee Trustee
    
    
    348.11
    
    Residual Power
    
    
    349.
    
    CHANGES TO RIGHTS
    
    
    359.1
    
    Rights of the Financiers are protected
    
    
    359.2
    
    Payments
    
    
    379.3
    
    Reinstatement of rights
    
    
    379.4
    
    Set-off
    
    
    389.5
    
    Discretion in exercising rights
    
    
    389.6
    
    Partial exercising of rights
    
    
    38
 Page ii




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##### 



9.7
    
    Remedies cumulative
    
    
    389.8
    
    Variation and waiver
    
    
    3810.
    
    INCONSISTENT LAW
    
    
    3810.1
    
    Inconsistent law
    
    
    3810.2
    
    Supervening legislation
    
    
    3911.
    
    NOTICES
    
    
    3912.
    
    GOVERNING LAW AND JURISDICTION
    
    
    4112.1
    
    Governing law
    
    
    4112.2
    
    Submission to jurisdiction
    
    
    4112.3
    
    Service
    
    
    4213.
    
    COUNTERPARTS
    
    
    4214.
    
    GENERAL
    
    
    4214.1
    
    Severability
    
    
    4214.2
    
    No waiver
    
    
    4214.3
    
    Further assurances
    
    
    4314.4
    
    Entire agreement
    
    
    4314.5
    
    Cumulative rights
    
    
    4314.6
    
    Certificates
    
    
    4314.7
    
    Amendment of this deed
    
    
    4314.8
    
    Confidentiality
    
    
    4315.
    
    GUARANTEE TRUSTEE LIMITATION OF LIABILITY
    
    
    44SCHEDULE 1 - FINANCIER NOMINATION LETTERSCHEDULE 2 - ACCESSION DEEDSCHEDULE 3 - FORM OF POWER OF ATTORNEY1.
    
    APPOINTMENT
    
    
    12.
    
    WHAT THE APPOINTER MAY DO
    
    
    13.
    
    GENERAL
    
    
    23.1
    
    Attorney's acts valid
    
    
    2
 Page iii




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3.2
    
    Benefit to the Attorney
    
    
    23.3
    
    Governing law
    
    
    24.
    
    COMPLIANCE WITH INTERCREDITOR DEED
    
    
    35.
    
    INTERPRETATION
    
    
    3
 ATTACHMENT A  DICTIONARY AND INTERPRETATION
 Page iv




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##### 



DATED
 PARTIES
 1.
    
    THE STATE OF NEW SOUTH WALESof Level 39, Governor Macquarie Tower, Farrer Place,
Sydney, NSW 2000 (NSW Government)2.
    
    ASBESTOS INJURIES COMPENSATION FUND TRUSTEE LIMITED (ABN[insert])of
[insert address] in its capacity as trustee for the Asbestos Injuries (JH) Compensation
Foundation (Fund Trustee)3.
    
    JAMES HARDIE INDUSTRIES N.V.(ARBN 097 829 895) a limited liability company
incorporated in The Netherlands, with its corporate seat in Amsterdam, and having its
registered office at Atrium, Unit 04-07, Strawinskylaan 3077, 1077 ZX Amsterdam, The
Netherlands (with its Australian registered office at Level 3, 22 Pitt Street, Sydney in the
State of New South Wales) (JHINV)4.
    
    [GUARANTEE TRUSTEE] (ABN[insert])of [insert address] in its capacity
as trustee for the Financiers (Guarantee Trustee)
  BACKGROUND
  A.
    
    James Hardie Industries Limited ( JHIL), a company organised under the
laws of Australia, was listed on the Australian Stock Exchange in 1951. The business then
carried on by JHIL and its subsidiaries had by that time been carried on in Australia, in one
form or another and under the James Hardie name, for at least 60 years.B.
    
    Under plans of reorganisation and capital restructuring executed between 1998 and
2001, JHIL sold on arms length terms substantially all of its business, operations and
undertaking to members of the JHINV Group with the result that JHINV became the ultimate
holding company of the businesses formerly carried on or controlled by JHIL.
 Page 1




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C.
    
    JHINV is a company organised under the laws of The Netherlands and is listed on
both the Australian Stock Exchange and the New York Stock Exchange (with the listing on the
latter exchange via American Depository Receipts). At the date of this deed, the JHINV Group
carries on the business of manufacturing building products in the United States of America,
Australia, New Zealand and the Philippines.D.
    
    On 21 December 2004, JHINV and others entered into a non-binding Heads of Agreement
containing, among other things, a set of agreed principles on which the Performing Subsidiary
will provide, and JHINV will guarantee the payment of, funding to the 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 principles contained in the Heads of Agreement have been developed and are set
out in the Final Funding Agreement which is and is intended to be legally binding on all
parties to it and to be enforceable at law and equity.F.
    
    JHINV has guaranteed the obligations of the Performing Subsidiary under the Final
Funding Agreement on and subject to the terms of the Guarantee.G.
    
    The creditor of JHINV under the Guarantee is the Fund Trustee.H.
    
    The claim of the Fund Trustee against JHINV under the Guarantee is an ordinary
unsecured claim (concurrente vordering).I.
    
    The NSW Government is not a creditor of JHINV in relation to the payment of the
Compensation Debt.J.
    
    However, the NSW Government shall be entitled to directly enforce all promises made
by JHINV to the Fund Trustee under the Guarantee subject to, and in accordance with, the
provisions of the Guarantee.K.
    
    The purpose of this deed is to set out the agreement between (1) the Fund Trustee
and the NSW Government, and (2) the Guarantee Trustee and the Financiers, as to the manner in
which certain rights in respect of the Compensation Debt and the Finance Money Debt
respectively are to be exercised in an Insolvency of JHINV.




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L.
    
    JHINV is a party to this deed for the sole purpose of nominating Persons as
Financiers, assuming certain obligations and being entitled to directly enforce the promises
made under clauses 2.2 and 8 of this deed (and, if required for such enforcement, clauses 1,
2.1, 2.3 and 10 to 14 inclusive).M.
    
    This deed is not intended, and shall not be taken, to (1) affect the status or
ranking of the Compensation Debt as an ordinary unsecured claim (concurrente vordering)
against JHINV, (2) affect the status or ranking of the Compensation Debt as against the other
debts (including the Finance Debt Money) or the other creditors of JHINV (including the
Financiers) in an Insolvency of JHINV, or (3) constitute a subordination agreement within the
meaning of section 3:277 (2) Dutch Civil Code.
 THE PARTIES AGREE
 1.
    
    PRELIMINARY1.1
    
    Defined Terms and Interpretation(a)
    
    A term or expression starting with a capital letter which is defined in the Dictionary
in Part 1 of Attachment A ( Dictionary), has the meaning given to it in the
Dictionary.(b)
    
    The Interpretation clauses in Parts 2 and 3 of Attachment A ( Interpretationand
Trust Convention) set out rules of interpretation for this deed.1.2
    
    Consideration
   1.3
    
    Crown immunity




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2.
    
    DEED2.1
    
    Effect
  (a)
    
    a deed between the NSW Government, the Fund Trustee, JHINV and the Guarantee Trustee; and(b)
    
    a deed poll by the NSW Government and the Fund Trustee in favour of each Financier from time
to time in respect of any Finance Money Debt raised or incurred by JHINV from time to time
during the term of the Final Funding Agreement.
  (i)
    
    this deed continues for the term of the Final Funding Agreement even though
there may be no Finance Money Debt outstanding at any particular point in time;(ii)
    
    undertakings expressed to be in favour of some of the parties to this deed
(excluding JHINV) are not given in favour of JHINV, although JHINV is entitled to
directly enforce the promises made under clauses 2.2 and 8 of this deed (and, if
required for such enforcement, clauses 1, 2.1, 2.3 and 10 to 14 inclusive).
 2.2
    
    Benefit(a)
    
    Each Financier has the benefit of, is bound by and is entitled to enforce this deed even
though it is not a party to, or is not in existence at the date of execution and delivery of
this deed.(b)
    
    Subject to clause 2.2(f), the benefit and obligations of this deed may be extended to any
Person (and such Person shall become a Financier) in relation to any document (and such
document shall become a Finance Document) under which




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##### 



liabilities are owed to such Person where such liabilities are, or are required to be,
included in the JHINV Groups financial statements or notes thereto as debt or borrowings
(including bank loans, letter of credit facilities, derivatives and debt capital markets
issues which are, or are required to be, so included or noted) of JHINV (or another member
of the JHINV Group the performance of whose obligations has been guaranteed by JHINV) by
JHINV signing and delivering to that Person (or an agent or trustee acting on behalf of
that Person) and the Guarantee Trustee, a Financier Nomination Letter and the Person
countersigning such Financier Nomination Letter and delivering the countersigned Financier
Nomination Letter to the Guarantee Trustee.(c)
    
    Without limiting clause 2.2(b), the benefits and obligations of this deed do not extend to a
Person:
 (i)
    
    by reason of any conduct or representation made by JHINV to that Person; and(ii)
    
    unless and until the Guarantee Trustee has received a duly countersigned
Financier Nomination Letter from that Person.
 (d)
    
    The Guarantee Trustee must:
 (i)
    
    promptly send a copy of each countersigned Financier Nomination Letter to the
NSW Government and the Fund Trustee (other than a Financier Nomination Letter in
respect of a Financier where this deed has ceased to apply to that Financier in
accordance with clause 2.2(g)) upon an officer of the Guarantee Trustee responsible
for the day to day administration of this deed becoming aware of the occurrence of an
Insolvency of JHINV; and(ii)
    
    following the occurrence of an Insolvency of JHINV, on request provide to the
NSW Government and the Fund Trustee written confirmation of the nature and quantum of
the Finance Money Debt as at the date such information is provided.
 (e)
    
    The Fund Trustee and the NSW Government confirm that, subject to clause 2.2(f), each of them
has irrevocably and for valuable consideration authorised JHINV to sign and deliver any
Financier Nomination Letter, nominating a Person as a Financier and a document as a Finance
Document, and acknowledge and




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##### 



confirm that the provisions of this deed which are for the benefit of the Financiers, will
extend to that Financier and the Finance Document so nominated.(f)
    
    The benefit and obligations of this deed in relation to Financiers may not be extended to any
Person who is an Excluded Lender and any such nomination shall be of no force or effect for
the purposes of this deed.(g)
    
    This deed shall cease to apply to a Financier once:
 (i)
    
    there is no Finance Money Debt in respect of that Financier;(ii)
    
    JHINV has no outstanding obligations to the Financier in relation to any
Finance Money Debt; and(iii)
    
    that Financier has no further obligation to provide financial accommodation
to JHINV (or another member of the JHINV Group the performance of whose obligations
has been guaranteed by JHINV) under the relevant Finance Documents,
  (h)
    
    If this deed ceases to apply to a Financier in accordance with clause 2.2(g), JHINV and that
Financier must promptly notify the Guarantee Trustee.2.3
    
    Inconsistency
  3.
    
    INTERCREDITOR ARRANGEMENTS3.1
    
    Purpose of this deed
  (a)
    
    the Fund Trustee and the NSW Government; and




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(b)
    
    the Guarantee Trustee and the Financiers,
  3.2
    
    NSW Government not a creditor of JHINV
  3.3
    
    Turnover
  3.4
    
    Status and ranking of the Compensation Debt
  (a)
    
    affect the status or ranking of the Compensation Debt as an ordinary unsecured claim
(concurrente vordering) against JHINV;(b)
    
    affect the status or ranking of the Compensation Debt as against the other debts (including
the Finance Money Debt) or the other creditors of JHINV (including the Financiers) in an
Insolvency of JHINV; nor(c)
    
    constitute a subordination agreement within the meaning of section 3:277 (2) Dutch Civil
Code.




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##### 



4.
    
    PROCEDURE ON INSOLVENCY4.1
    
    Proceeds held on trust
    4.2
    
    Distribution of Proceeds
  (a)
    
    first, to the Guarantee Trustee on account of the Finance Money Debt which remains owing by
JHINV to the Financiers, after all payments received from, or due and payable under the
Insolvency by, the Insolvency Official and all prior payments under this clause 4.2(a), if
any, have been taken into account ( Net Finance Money Debt);(b)
    
    secondly, to the extent of any balance after repayment of the Net Finance Money Debt owed by
JHINV to the Financiers in full, to the Fund Trustee to satisfy the Compensation Debt; and(c)
    
    thirdly, to the extent of any balance after repayment of the Compensation Debt in full, to
JHINV (for its own account).




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##### 



4.3
    
    Payment of amounts recovered
  (a)
    
    is received or recovered by a Compensation Party on account of the Compensation Debt (which
is not subject to the trust in clause 4.1); or(b)
    
    is paid to any Person other than a Compensation Party in connection with the Compensation
Debt with the consent or at the request of a Compensation Party or for the benefit of a
Compensation Party; or(c)
    
    is set off by a Compensation Party against the Compensation Debt (whether by operation of law
or otherwise),
   4.4
    
    Residual Rights
 
        (a)
    
    not withdraw, waive, release, compromise or deal in any way with their remaining rights in
the Insolvency in relation to the Finance Money Debt ( Residual Rights);(b)
    
    until the Compensation Debt has been discharged and satisfied in full, do anything reasonably
required by the NSW Government (at the cost of the NSW Government) to assign or otherwise
transfer their Residual Rights to the Fund Trustee or to enable the Fund Trustee to be
subrogated to, or otherwise enjoy the benefit of, the Residual Rights; and(c)
    
    pay any money and/or any other property received pursuant to the Residual Rights to the Fund
Trustee.4.5
    
    No exercise of Financiers rights




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##### 



4.6
    
    Substitution of the Fund Trustee
  (a)
    
    promptly notify the Guarantee Trustee of the appointment and the identity and contact details
of the Replacement Trustee; and(b)
    
    procure, at its own expense, that the Replacement Trustee duly executes and delivers an
Accession Deed (and a power of attorney as required by clause 8.1(b)) to each party to this
deed.
   4.7
    
    Additional Rights(a)
    
    If in connection with an Insolvency of JHINV a Compensation Party is required to
disgorge or unwind all or part of the recovery of receipt of Proceeds or any other amounts (in
the form of money or other property) received by it from, or on account of, JHINV and which
have been paid to the Guarantee Trustee or a Financier in accordance with this clause 4, the
Guarantee Trustee or the relevant Financier (as the case may be), must promptly, following a
request from the relevant Compensation Party, repay to the relevant Compensation Party the
amounts (or other property) so received by it from that Compensation Party.(b)
    
    If in connection with an Insolvency of JHINV the Guarantee Trustee or a Financier is required
to disgorge or unwind all or part of the recovery of any money and/or any other property
received pursuant to the Residual Rights and which have been paid to the Fund Trustee in
accordance with clause 4.4(c), the Fund Trustee, must promptly, following a request from the
Guarantee Trustee or the relevant Financier (as the case may be), repay to the Guarantee
Trustee or the




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##### 



relevant Financier (as the case may be), the amounts (or other property) so received by it
in accordance with clause 4.4(c).5.
    
    RIGHTS IN RELATION TO THE COMPENSATION DEBT5.1
    
    No prohibition
   (a)
    
    make demand for, commence proceedings in relation to, enforce any judgment in relation to and
compromise or settle any claim in relation to all such obligations and liabilities;(b)
    
    seek or obtain from any court of competent jurisdiction at any time an order directing JHINV
to make any payment under or to specifically perform its obligations under the Final Funding
Agreement or the Guarantee, or similar equitable relief;(c)
    
    make application to any court of competent jurisdiction for the winding up of, or in relation
to the Insolvency, of JHINV;(d)
    
    be present and vote at any meeting of creditors or other meeting which it is entitled to
attend concerning any proposal relating to JHINV or at any meeting relating to the Insolvency
of JHINV;(e)
    
    individually make submissions to an Insolvency Official in connection with any Insolvency of
JHINV;(f)
    
    prove the Compensation Debt in any Insolvency of JHINV; and




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(g)
    
    participate in any proceedings relating to its right to vote and prove or otherwise
participate in any meeting, proceeding or distribution concerning the Insolvency of JHINV.5.2
    
    NSW Government Enforcement Rights(a)
    
    Any action or the enforcement of any rights of a Compensation Party under this deed in
the event of an Insolvency of JHINV may only be taken by the NSW Government, unless the NSW
Government otherwise consents in writing to the Fund Trustee taking such action or enforcing
those rights.For the avoidance of doubt, this clause does not preclude an Attorney exercising any rights
under a power of attorney granted pursuant to, and in accordance with, clause 8.(b)
    
    Any action taken by the NSW Government under this deed:
 (i)
    
    shall oblige the Fund Trustee to cause any similar or inconsistent action to
be revoked, rescinded or discontinued, provided that the Fund Trustee may resume or
initiate any such action if and to the extent that the corresponding action taken by
the NSW Government is revoked or abandoned by notice in writing by the NSW Government;
and(ii)
    
    shall oblige the NSW Government to hold on trust for the Fund Trustee any
amounts (in the form of money or other property) received or recovered under, or in
respect of, the action taken.
 (c)
    
    Where this deed requires or contemplates the consent of, or a nomination or determination by
the Fund Trustee, such consent, nomination or determination shall only be effective if
consented to by the NSW Government, and the Guarantee Trustee must not accept or act on a
notice of consent, nomination or determination, or any other direction, by the Fund Trustee,
unless such notice is accompanied by consent from the NSW Government.(d)
    
    Without limiting clauses 5.2(a) or (c), the parties acknowledge that:
 (i)
    
    under clause 16.6(f) of the Final Funding Agreement the Fund Trustee has
agreed not to, without the prior written consent of the NSW Government, waive or
compromise all or any part of any payment




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##### 



(actually or contingently) due from JHINV or the Performing Subsidiary under the
Final Funding Agreement or any Related Agreement (including this deed); and(ii)
    
    any such waiver or compromise by the Fund Trustee that is not accompanied by
such written consent from the NSW Government shall be invalid and has no effect on the
obligations of the parties under this deed and cannot be relied upon by the parties or
pleaded by way of estoppel or otherwise in any action or proceeding for the
enforcement of the Final Funding Agreement or any Related Agreement (including this
deed).
 (e)
    
    The NSW Government acknowledges that its right to enforce this deed is subject to the clause
16.6 of the Final Funding Agreement (but, in an Insolvency of JHINV, only to the extent the
provisions of that clause apply in an Insolvency of JHINV).(f)
    
    Without limiting clauses 5.2(a) or (c), the parties acknowledge that the NSW Government may
commence or institute proceedings in any jurisdiction in relation to the existence or amount
of the Compensation Debt (but, in the case of any Wind Up or Reconstruction Amount (as defined
in the Final Funding Agreement), subject to clause 10 of the Final Funding Agreement) or any
voting rights attaching thereto, or any matters incidental to determining such amount or
voting rights.6.
    
    COVENANTS6.1
    
    Restriction on dealings




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(a)
    
    the prior written consent of the Guarantee Trustee acting on instructions from all or a
specified majority of the Financiers as referred to in clause 7.3; or(b)
    
    in the case of the creation of a Security Interest, the holders of that Security Interest and
all other persons having an interest in that Security Interest (if any), having agreed to be
bound by the corresponding obligations of the relevant Compensation Party or the NSW
Government under the Final Funding Agreement, the Guarantee or this deed (as the case may be).6.2
    
    No security
  (a)
    
    ( set off) during the Insolvency of JHINV, exercise any right of set off in
respect of the Compensation Debt;(b)
    
    ( Security Interest or guarantee) except for the Guarantee and a Cross Guarantee
(Fund Guaranteed Money), accept from JHINV or another member of the JHINV Group the benefit of
any Security Interest or guarantee, indemnity or assurance against financial loss in respect
of the Compensation Debt; or(c)
    
    ( arrangements) enter into any arrangement, take any action or fail to do any
thing, which results in any Proceeds received by it from or on account of JHINV (or such
proportion of the Proceeds sufficient to discharge and satisfy the Finance Money Debt in full)
not being held on trust for the relevant Financiers in accordance with the terms of this deed,




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##### 



7.
    
    GUARANTEE TRUSTEE7.1
    
    Appointment and removal
  (a)
    
    acknowledge that JHINV or the Financiers may appoint, remove and replace the Guarantee
Trustee as trustee under the Finance Guarantee (such newly appointed or replacement trustee, a
New Guarantee Trustee); and(b)
    
    agree to do anything reasonably required by JHINV, the Financiers, the outgoing Guarantee
Trustee or the New Guarantee Trustee to enable the New Guarantee Trustee to become a party to
this deed in substitution for the outgoing Guarantee Trustee.7.2
    
    Sole Representative(a)
    
    So long as a Person is acting as trustee under the Finance Guarantee, the Fund Trustee
and the NSW Government may deal exclusively with that Person in respect of all matters
concerning this deed.(b)
    
    The Financiers acknowledge and confirm that the Person acting as trustee under the Finance
Guarantee is empowered to exercise all of their rights and powers under this deed and agree
not to take any action or proceedings to set aside any act, notice or omission of the
Guarantee Trustee undertaken in accordance with this deed.7.3
    
    Acknowledgement by Fund Trustee and the NSW Government




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##### 



7.4
    
    No Guarantee Trustee
   7.5
    
    Acknowledgement by Guarantee Trustee
  (a)
    
    is a recognised trustee company under the laws of the place in which its Specified Office is
located;(b)
    
    has relevant and substantive experience and expertise in custody of financial obligations and
in Insolvency proceedings generally;(c)
    
    except to the extent it is entitled to be paid fees or reimbursed or indemnified for costs
and expenses by JHINV, has no interest or duty which to its knowledge conflicts or may
conflict with its functions under this deed; and(d)
    
    is not a member of a firm, or a director or employee of a firm or a body owned by a firm,
performing any role as advisor, banker, custodian or trustee to JHINV, another member of the
JHINV Group or (except for roles undertaken in the ordinary course of business for state owned
business enterprises) the NSW




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##### 



Government during a period of 3 years prior to the date of
this deed or becoming a party to this deed, as the case
may be.7.6
    
    Substitution of Guarantee Trustee(a)
    
    JHINV or the Financiers can only replace the Guarantee Trustee with any Person who at
the date of becoming a New Guarantee Trustee:
 (i)
    
    is a recognised trustee company under the laws of the place in which its
Specified Office is located;(ii)
    
    has relevant and substantive experience and expertise in custody of financial
obligations and in Insolvency proceedings generally;(iii)
    
    except to the extent it is entitled to be paid fees or reimbursed or
indemnified for costs and expenses by JHINV, has no interest or duty which to its
knowledge conflicts or may conflict with its functions as contemplated under this
deed; and(iv)
    
    is not a member of a firm, or a director or employee of a firm or a body
owned by a firm, performing any role as advisor, banker, custodian or trustee to
JHINV, another member of the JHINV Group or (except for roles undertaken in the
ordinary course of business for state owned business enterprises) the NSW Government
during a period of 3 years prior to becoming a party to this deed.
 (b)
    
    A substitution under clause 7.6(a) will not occur and a New Guarantee Trustee acquires no
rights or benefits under this deed unless and until the New Guarantee Trustee duly executes
and delivers an Accession Deed to each party to this deed. This clause does not require an
Accession Deed to be delivered to a Financier.(c)
    
    If the New Guarantee Trustee is not incorporated in Australia, the Financiers must procure,
at no expense to the Fund Trustee or the NSW Government, the delivery to the Fund Trustee and
the NSW Government of an opinion of generally recognised independent legal counsel qualified
to practise in the relevant jurisdiction to the effect that the Accession Deed and this deed
are valid, binding and enforceable obligations of the New Guarantee Trustee (subject to laws
and defences generally affecting the enforcement of contracts and the discretionary nature of
equitable remedies).




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7.7
    
    Standard of Duty
  7.8
    
    Functions, duties and obligations of the Guarantee Trustee7.8.1
    
    Role of the Guarantee Trustee
  (a)
    
    upon an officer of the Guarantee Trustee responsible for the day to day administration
of this deed becoming aware of any Insolvency of JHINV, promptly send to each Compensation
Party a notice which requests them to advise in writing the amount of the Compensation Debt
or, alternatively, the basis on which the Compensation Debt is to be calculated and, in the
event of a conflict in the amount of the Compensation Debt advised by the Fund Trustee and the
NSW Government, then (in the absence of manifest error) the amount advised by the NSW
Government prevails;(b)
    
    not do anything to prevent or interfere with a Compensation Party proving the Compensation
Debt in an Insolvency (to the extent that the Compensation Party is acting in accordance with
the Final Funding Agreement and applicable law);(c)
    
    not make any representation or submission to an Insolvency Official in relation to the
valuation of the claims of the Compensation Parties in respect of the Compensation Debt unless
reasonably requested by the NSW Government;(d)
    
    where the Guarantee Trustee is entitled to exercise any vote pursuant to clause 8, take all
necessary and reasonable steps permitted by applicable law to exercise that vote for the value
of the Compensation Debt for the purposes of the Insolvency of JHINV (including the
presentation of all evidence and submissions to any Insolvency Official as reasonably
requested by the NSW Government);(e)
    
    promptly advise each Compensation Party of any dispute between:
 (i)
    
    the Guarantee Trustee; and




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##### 



(ii)
    
    an Insolvency Official, JHINV and/or one or more creditors of JHINV,
 in relation to the Compensation Debt or this deed and which may come before a court of
competent jurisdiction, and take all reasonable steps permitted by applicable law to delay
the determination of the dispute for such period of time (as is reasonable having regard to
the procedural laws governing the conduct of the dispute before the relevant court of
competent jurisdiction) so as to give the Compensation Parties a reasonable opportunity to
present evidence and submissions to the relevant court of competent jurisdiction if it so
wishes;(f)
    
    if JHINV is Insolvent, take all reasonable action permitted by applicable law to ensure that:
 (i)
    
    all moneys recoverable in respect of the Finance Money Debt are duly and
promptly recovered from the relevant Insolvency Official; and(ii)
    
    any amount payable or repayable to a Compensation Party by a Financier under
this deed, by reason of that Financier receiving whether by way of distribution by the
Insolvency Official in the Insolvency, as payments by a Compensation Party under this
deed or otherwise, an amount in excess of the Finance Money Debt owed to that
Financier, are paid or repaid by that Financier to that Compensation Party;
 (g)
    
    not do anything to prevent or interfere with a Compensation Party promptly recovering from
the relevant Insolvency Official all moneys which are recoverable in respect of the
Compensation Debt;(h)
    
    take all reasonable steps permitted by applicable law and requested by the NSW Government to
assist the Compensation Parties with the determination of any dispute between:
 (i)
    
    a Compensation Party; and(ii)
    
    an Insolvency Official, JHINV and/or one or more creditors of JHINV.
 in relation to the Compensation Debt or this deed;(i)
    
    to the extent permitted by applicable law, apply for and use reasonable endeavours to obtain
any stay, extension of time or other order in relation to the




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##### 



Insolvency of JHINV which the Guarantee Trustee reasonably considers is necessary in order
to enable any Independent Expert to discharge its responsibilities under and in accordance
with clause 8 or which the NSW Government reasonably requests for such purpose;(j)
    
    upon an officer of the Guarantee Trustee responsible for the day to day administration of
this deed becoming aware of any breach of this deed by any party, promptly notify JHINV, the
Financiers and the Compensation Parties of that breach including details of that breach; and(k)
    
    promptly notify JHINV, the Financiers and the Compensation Parties if for any reason it is
unable to perform its obligations under this deed.7.8.2
    
    Provision of information
  7.8.3
    
    Limitations on the obligations of the Guarantee Trustee




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##### 



(a)
    
    in a manner which does not constitute a breach by the Guarantee Trustee of its fiduciary
duties owed to the Financiers in respect of the Finance Money Debt; or(b)
    
    by the NSW Government doing the relevant act, matter or thing in a manner which, if the
relevant act, matter or thing had been done by the Guarantee Trustee, would be in accordance
with this deed.7.8.4
    
    Duties of Guarantee Trustee
  7.8.5
    
    Limitation on Liability
  (a)
    
    special, indirect, incidental, consequential or punitive damages; or(b)
    
    economic loss, loss of profits, loss of revenue, or loss of goodwill,
  7.8.6
    
    Indemnity




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##### 



8.
    
    VOTING IN INSOLVENCY PROCEEDINGS8.1
    
    Irrevocable Appointment of Attorney(a)
    
    Subject to this clause 8, Asbestos Injuries Compensation Fund Trustee Limited in its
capacity as trustee for the Asbestos Injuries (JH) Compensation Foundation irrevocably and for
valuable consideration agrees to appoint the Guarantee Trustee and each Authorised Officer of
the Guarantee Trustee individually as the attorney of Asbestos Injuries Compensation Fund
Trustee Limited in its capacity as trustee for the Asbestos Injuries (JH) Compensation
Foundation (together with any person appointed as an attorney in accordance with clauses
8.1(b) and (c), an Attorney) to vote the Compensation Debt during the Insolvency
of JHINV or at any meeting, proceeding or distribution concerning the Insolvency of JHINV for
so long as any Finance Money Debt remains outstanding, by executing a power of attorney
substantially in the form of Schedule 3 to this deed, provided that any vote must be exercised
in accordance with this clause 8 and Asbestos Injuries Compensation Fund Trustee Limited in
that capacity further irrevocably and for valuable consideration agrees, if required for
further assurance, to execute a proxy or authority in a form ordinarily required under the
applicable law governing the relevant proceeding.(b)
    
    Subject to this clause 8 and simultaneously with executing and delivering an Accession Deed
in accordance with clause 4.6, each Replacement Trustee must irrevocably and for valuable
consideration appoint the Guarantee Trustee and each Authorised Officer of the Guarantee
Trustee individually as the attorney of the Replacement Trustee to vote the Compensation Debt
during the Insolvency of JHINV or at any meeting, proceeding or distribution concerning the
Insolvency of JHINV for so long as any Finance Money Debt remains outstanding, by executing a
power of attorney substantially in the form of Schedule 3 to this deed provided that any vote
must be exercised in accordance with this clause 8 and the Replacement Trustee further
irrevocably and for valuable consideration agrees, if required for further assurance, to
execute a proxy or authority in a form ordinarily required under the applicable law governing
the relevant proceeding.(c)
    
    Subject to this clause 8, the Fund Trustee and the NSW Government agree not to vote or
attempt to vote the Compensation Debt during the Insolvency of JHINV or at any meeting,
proceeding or distribution concerning the Insolvency of JHINV for so long as any Finance Money
Debt remains outstanding.




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##### 



(d)
    
    The Fund Trustee irrevocably and for valuable consideration authorises the Guarantee Trustee
to provide an original or copy of any power of attorney executed in accordance with clause
8.1(a) or (b) to an Insolvency Official for the purpose of establishing the right and
entitlement of each Attorney during the Insolvency of JHINV to exercise the appointors right
to vote the Compensation Debt at any meeting, proceeding or distribution concerning the
Insolvency of JHINV.(e)
    
    The Guarantee Trustee must ensure that an Attorney only exercises, and in circumstances where
the Guarantee Trustee is itself appointed an Attorney, the Guarantee Trustee must only
exercise, its rights under a power of attorney granted in accordance with this clause 8 in
accordance with, and subject to, the provisions of this deed.(f)
    
    To the extent required under applicable law, the Fund Trustee agrees to ratify:
 (i)
    
    anything the Guarantee Trustee does in accordance with this clause 8, and
such ratification is without prejudice to its rights in respect of any breach of this
deed by the Guarantee Trustee; and(ii)
    
    whatever an Attorney does in exercising powers under a power of attorney
granted in accordance with this clause 8, provided that there is no obligation to
ratify or confirm any act or matter in breach of this deed or any applicable law.
 (g)
    
    Subject to the provisions of this deed, each Compensation Party and the NSW Government must
not do anything to prevent or interfere with the exercise by:
 (i)
    
    the Guarantee Trustee of its rights and powers, or the performance of its
obligations, under this clause 8; or(ii)
    
    an Attorney of its rights and powers, or the performance of its obligations,
under the relevant power of attorney.
 (h)
    
    Subject to the terms and conditions of this deed and subject to compliance with its
provisions, an Attorney may exercise the right to vote in the appointors name or, if
necessary or desirable under the applicable law governing the relevant proceeding, the
Attorneys name, and may do anything necessary or incidental to such exercise including
signing and delivering documents.




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##### 



(i)
    
    If for any reason whatsoever an Attorney is not entitled by operation of law to exercise its
rights under the relevant power of attorney, the appointor shall exercise those rights as
directed by the Guarantee Trustee, provided such directions are in accordance with this clause
8.(j)
    
    The Guarantee Trustee must promptly provide the NSW Government with reasonable details of any
action taken by the Guarantee Trustee or an Attorney in respect of the exercise of its powers
under a power of attorney granted in accordance with this clause 8.(k)
    
    The Guarantee Trustee must promptly provide full details of any action taken or any votes
cast by the Guarantee Trustee or an Attorney in respect of the Compensation Debt.8.2
    
    Voting(a)
    
    The Compensation Parties are responsible for proving the Compensation Debt in any
Insolvency of JHINV and providing such information as to the value of the Compensation Debt as
is required by the relevant Insolvency Official for the purposes of ascribing a value to the
Compensation Debt for the purposes of an Insolvency of JHINV. In proving the Compensation
Debt, the Compensation Parties must:
 (i)
    
    use reasonable endeavours to ensure that the relevant Insolvency Official sends
all Notices of Voting in Insolvency in an Insolvency of JHINV (or a copy of all such
notices) to the Guarantee Trustee; and(ii)
    
    to the extent such notices are received by the Compensation Parties, provide
a copy to the Guarantee Trustee.
 Notwithstanding any other provision of this deed other than, and subject to, clauses
7.8.1(b) and (c), the Guarantee Trustee is not responsible for proving the Compensation
Debt in any Insolvency of JHINV.The Compensation Parties agree to provide the Guarantee Trustee with copies of all
documents submitted to the relevant Insolvency Official for the purposes of ascribing a
value to the Compensation Debt for the purposes of an Insolvency of JHINV or ensuring that
the relevant Insolvency Official sends all Notices of




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##### 



Voting in Insolvency in an Insolvency of JHINV (or a copy of all such notices) to the
Guarantee Trustee.(b)
    
    Subject to clauses 8.8 and 8.9, during the Insolvency of JHINV the Guarantee Trustee must
ensure that an Attorney only votes on any matter in any meeting, proceeding or distribution
concerning the Insolvency of JHINV in respect of the Compensation Debt in accordance with the
instructions of the Financiers given in accordance with the Finance Guarantee, provided that:
 (i)
    
    the Guarantee Trustee must ensure that an Attorney does not vote unless the
Guarantee Trustee has provided the NSW Government with 10 Business Days notice (or,
subject to clause 7.8.1(i), such shorter notice as the Guarantee Trustee determines is
reasonable having regard to the terms of the Notice of Voting in Insolvency) of the
Attorneys intention to vote and the Attorney votes in accordance with the intention
as notified; and(ii)
    
    if an Independent Expert has been appointed under clause 8.3, and the
Independent Expert has determined that, in its opinion, the criteria set out in:
 A.
    
    clauses 8.4(a), (b), (c) and, if applicable, (d); orB.
    
    clause 8.4(e),
  For the avoidance of doubt, the Guarantee Trustee must ensure that an Attorney votes in
accordance with the proviso to this clause 8.2(b) irrespective of any instructions of the
Financiers to the contrary given in accordance with the Finance Guarantee.(c)
    
    Each of the Fund Trustee and NSW Government acknowledge that in clause 10.5 of the Final
Funding Agreement they agreed that, without prejudice to their obligations under or the
operation of this deed and to the extent permitted by law, all voting rights arising out of
the Guarantee will be exercised in respect of any




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##### 



proposed composition with creditors, plan of arrangement, plan of reorganization, or other
restructuring for JHINV in connection with any Reconstruction Event (Plan) so as to vote
in favour of the Plan where, if the Plan were to come into force the conditions specified
in clause 10.5 of the Final Funding Agreement would be satisfied.Accordingly, if the circumstances in clause 10.5 of the Final Funding Agreement apply, the
Fund Trustee and NSW Government agree that the Plan is the Preferred Option.(d)
    
    If following the occurrence of a Wind-Up Event in respect of JHINV, the value of the assets
of JHINV available for distribution to pay the claims of ordinary unsecured creditors (or
realisation to allow such payment), as determined or estimated (in the absence of manifest
error) by the relevant Insolvency Official (or otherwise determined or estimated for the
purposes of the relevant Insolvency proceeding in accordance with applicable law) is equal to
or less than the amount required to enable discharge and satisfaction of the Finance Money
Debt in full, then, subject to clauses 8.8 to 8.10 inclusive, during the Wind-Up Event an
Attorney may vote on any matter in any meeting, proceeding or distribution concerning the
Wind-Up Event in respect of the Compensation Debt in accordance with the instructions of the
Financiers given in accordance with the Finance Guarantee and clauses 8.2(b) and (c), 8.3 to
8.7 inclusive and 8.11 do not apply.8.3
    
    Appointment of an Independent Expert(a)
    
    If during the Insolvency of JHINV:
 (i)
    
    the Guarantee Trustee or an Attorney receives a Notice of Voting in
Insolvency (or a copy of a Notice of Voting in Insolvency); and(ii)
    
    a vote on any matter in any meeting, proceeding or distribution concerning
the Insolvency of JHINV requires a choice between:
 A.
    
    two or more options, proposals, courses of action or other
alternatives (howsoever described) ( Options) for the partial or
full winding up, restructure or reconstruction of JHINV or the realisation of
some or all of JHINVs assets in connection with its Insolvency;




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##### 



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




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##### 



(e)
    
    If an Independent Expert appointed under this clause 8 determines that an Option, other than
the Option nominated by the NSW Government under clause 8.3(d)(i), satisfies the criteria set
out in:
 (i)
    
    clauses 8.4(a), (b), (c) and if applicable, (d); or(ii)
    
    clause 8.4(e),
 then the NSW Government may immediately, with notice in writing to the Guarantee Trustee,
nominate the Option so determined by the Independent Expert as the Option that it would
like an Attorney to vote for in respect of the Compensation Debt.(f)
    
    For the purposes of this clause 8 and subject to clause 8.2(c), Preferred Optionmeans:
 (i)
    
    subject to clause 8.3(f)(ii), the Option nominated by the NSW Government
under clause 8.3(d)(i); or(ii)
    
    if the circumstances in clause 8.3(e) apply, the Option nominated by the NSW
Government under clause 8.3(e); or(iii)
    
    if the circumstances in clause 8.3(g) apply, the Option nominated by the NSW
Government under clause 8.3(g); or(iv)
    
    if the NSW Government has not nominated an Option in accordance with clause
8.3(d)(i) or 8.3(e), the Preferred Option is deemed to be the Option which the
Independent Expert determines satisfies the criteria set out in:
 A.
    
    clauses 8.4(a), (b), (c) and, if applicable, (d); orB.
    
    clause 8.4(e),




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##### 



(g)
    
    If the Independent Expert determines that there are two or more Options which satisfy the
criteria set out in clause 8.2(b)(ii), the NSW Government may notify the Guarantee Trustee in
writing which Option it wishes to nominate as the Preferred Option.8.4
    
    Role of the Independent Expert
  (a)
    
    whether, one or more Options (if approved and implemented in the manner described in the
Notice of Voting in Insolvency) are likely to result in the recovery by the Guarantee Trustee
of an amount in respect of the Finance Money Debt which would be sufficient (taking into
account prior ranking claims, the likely or anticipated distribution to Financiers by the
Insolvency Official and any likely payment to the Guarantee Trustee under clause 4) to
discharge and satisfy the Finance Money Debt in full;(b)
    
    whether one or more of the Options which satisfy the requirements of paragraph (a) (if
approved and implemented in the manner described in the Notice of Voting in Insolvency) are
likely to result in the recovery by the Guarantee Trustee in respect of the Finance Money Debt
of an amount:
 (i)
    
    which would be at least 5% greater than the amount which the Guarantee
Trustee would be likely to recover in respect of the Finance Money Debt under any
other Option, after allowing for the time value of money; and(ii)
    
    which would discharge and satisfy the Finance Money Debt in full by a date no
later than 12 months after the earliest date by which any of the other Options would
achieve full discharge and satisfaction of the Finance Money Debt; and
 (c)
    
    whether the conditions (if any) attached to one or more of the Options which satisfy the
requirements of paragraph (a) (as described in the Notice of Voting in Insolvency) do not
involve a materially greater risk of non-recovery, or delay in




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##### 



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




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##### 



Insolvency Official and any likely payment to the Guarantee Trust under clause 4)
within the next 12 months.
 8.5
    
    Notice of determination by the Independent Expert
  8.6
    
    Assistance to the Independent Expert
  8.7
    
    Determination by the Independent Expert final
  8.8
    
    Consent of NSW Government required in certain circumstances
 (a)
    
    Subject to clauses 8.9 to 8.11 inclusive, but otherwise notwithstanding any other
provision of clauses 8.2 to 8.7 inclusive, the Guarantee Trustee must ensure that an Attorney
does not, without the prior written consent of the NSW Government, vote in respect of the
Specified Proportion of the Compensation Debt in favour of any arrangement, assignment,
reconstruction, composition, option, proposal or other course of action proposed in connection
with JHINVs Insolvency which, if approved and implemented, would result in the extinguishment
of any part of the Compensation Debt (other than by payment in full or upon the final
dissolution or winding up of JHINV in circumstances where there will be an insufficiency of
assets to enable payment of any part of the Compensation Debt taking into account prior
ranking claims, the distribution to the Financiers by the Insolvency Official and payments to
the Guarantee Trust under clause 4). An Attorney may vote the balance of the Compensation
Debt in accordance with the instructions of




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##### 



the Financiers given in accordance with the Finance Guarantee (or, in the absence of such
instructions, as the Guarantee Trustee directs).(b)
    
    Where there are two or more Options, the Guarantee Trustee must appoint and obtain advice
from an Independent Expert in accordance with clauses 8.3 and 8.4 and, provided that the
Independent Expert has had due regard to the matters specified in clause 8.4, the Guarantee
Trustee must, subject to clauses 8.2(d) and 8.9 to 8.11 inclusive, ensure that an Attorney
votes the Specified Proportion of the Compensation Debt in favour of the Preferred Option. An
Attorney may vote the balance of the Compensation Debt in accordance with the instructions of
the Financiers given in accordance with the Finance Guarantee.8.9
    
    Options providing for a return to shareholders of JHINV
  (a)
    
    a return to the shareholders of JHINV without:
 (i)
    
    payment of the Compensation Debt in full; or(ii)
    
    the entry into an arrangement approved by the NSW Government by a James
Hardie Successor which is materially similar in nature and value to the arrangements
under the Final Funding Agreement; or
 (b)
    
    a maintenance or continuing standing of JHINV or the creation or promotion of any James
Hardie Successor, under which shareholders of JHINV have or might have any continuing value or
interest attaching to their shares in JHINV,
  Shareholder Option




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##### 



(i)
    
    the NSW Government has otherwise consented; or(ii)
    
    the Independent Expert has determined that the implementation of the
arrangement, assignment, reconstruction, composition, option, proposal or other course
of action would be likely to result in a greater return in respect of the Compensation
Debt than any other option which is likely to be available (including a Wind-Up Event
in respect of JHINV), having regard (among any other relevant factors) to any
potential future payment by JHINV or a James Hardie Successor (under an agreement
similar in its effect to the Final Funding Agreement) in respect of part or all
amounts payable under the guarantee of payment of the Fund Guaranteed Money in
accordance with the Guarantee.
   8.10
    
    Defaulting or absent Guarantee Trustee
  (a)
    
    a court of competent jurisdiction has determined that the Guarantee Trustee is in breach of,
or default under, this deed; or(b)
    
    there is no Person acting as trustee under the Finance Guarantee,
  8.11
    
    Residual Power




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##### 



9.
    
    CHANGES TO RIGHTS9.1
    
    Rights of the Financiers are protected(a)
    
    Rights given to or for the benefit of the Financiers under this deed, and the
obligations of each Compensation Party and the NSW Government under it, are not affected by
any act or omission by a Compensation Party, the NSW Government, the Guarantee Trustee, any
Financier or any other Person or by any other act, other matter or thing whatsoever, whether
negligent or not, except as agreed to in writing by the Guarantee Trustee. For example, those
rights and liabilities are not affected by:
 (i)
    
    any act or omission:
 A.
    
    varying or replacing any arrangement under which any
Finance Money Debt or Compensation Debt is expressed to be owing, such as by
increasing a facility limit or extending the term;B.
    
    releasing or discharging JHINV or any Security Provider
(including discharge by operation of law) or giving them a concession (such
as more time to pay);C.
    
    releasing any Person who gives a guarantee or indemnity in
connection with any of JHINVs obligations;D.
    
    releasing, losing the benefit of, or not obtaining any
Security Interest or negotiable instrument;E.
    
    by which the obligations of a Compensation Party, the NSW
Government, JHINV or any Security Provider may not be enforceable;F.
    
    by which any Person who was intended to guarantee or
provide a Security Interest securing all or part of the Finance Money Debt
does not do so, or does not do so effectively;




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##### 



G.
    
    by which a Compensation Party or the NSW Government is
discharged from its obligations to the Financiers by operation of law;H.
    
    by which any Security Interest which could be registered is
not registered; orI.
    
    any other thing causing any prejudice (including material
prejudice);
 (ii)
    
    a Person dealing in any way with a Security Interest, guarantee, indemnity,
judgment or negotiable instrument;(iii)
    
    the death, mental or physical disability, incapacity, Insolvency or any
legal limitation of any Person including JHINV, a Compensation Party or the NSW
Government;(iv)
    
    changes in the membership, name or business of any Person;(v)
    
    JHINV opening an account with any Financier;(vi)
    
    acquiescence or delay by any Financier or any other Person;(vii)
    
    an assignment of rights or a novation in connection with all or part of the
Finance Money Debt or the Compensation Debt;(viii)
    
    the acceptance of the repudiation of, or termination of, any Finance Document or any
other document or agreement; or(ix)
    
    any payment to a Financier, including any payment which at the payment date
or at any time after the payment date is, in whole or part, illegal, void, voidable,
avoided or unenforceable.
 This clause applies regardless of whether JHINV, a Compensation Party or the NSW Government
is aware of, has consented to or is given notice of any act, omission, matter or thing
referred to in this clause. This clause does not limit the obligations of a Compensation
Party or the NSW Government under this deed.




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##### 



(b)
    
    Subject to this deed, the Financiers may act freely in their interests in relation to any
matter concerning the Finance Money Debt without regard to the interests of a Compensation
Party or the NSW Government or the terms of the Compensation Debt and without incurring any
liability to a Compensation Party or the NSW Government.9.2
    
    Payments
  (a)
    
    to, or as directed by, the Guarantee Trustee;(b)
    
    in full without set off or counterclaim, and without any deduction in respect of Taxes unless
prohibited by law; and(c)
    
    in the currency in which it receives or recovers payment in respect of the Compensation Debt.9.3
    
    Reinstatement of rights




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##### 



9.4
    
    Set-off
  9.5
    
    Discretion in exercising rights
  9.6
    
    Partial exercising of rights
  9.7
    
    Remedies cumulative
  9.8
    
    Variation and waiver
   10.
    
    INCONSISTENT LAW10.1
    
    Inconsistent law




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##### 



10.2
    
    Supervening legislation
  11.
    
    NOTICES(a)
    
    A notice, approval, consent, nomination or other communication (including a Financier
Nomination Letter) ( Communication) to a Person relating to this deed:
 (i)
    
    must state that it relates to this deed and state the relevant clause in this
deed;(ii)
    
    must be signed by an Authorised Officer;(iii)
    
    must be in legible writing; and(iv)
    
    must be in English.
 (b)
    
    Communications must be addressed as follows:If the Communication is to NSW Government then it must be addressed as follows:Name:Attention:Address:Facsimile:




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##### 



unless the NSW Government has notified the other parties of new contact details, in
which case the Communication must be addressed in the manner last notified by the NSW
Government.If the Communication is to the Fund Trustee then it must be addressed as follows:Name:Attention:Address:Facsimile:unless the Fund Trustee has notified the other parties of new contact details, in
which case the Communication must be addressed in the manner last notified by the Fund
Trustee.A copy of any such Communication to the Fund Trustee must promptly be sent to the NSW
Government in accordance with this clause 11.If the Communication is to the Guarantee Trustee then it must be addressed as follows:Name:Attention:Address:Facsimile:unless the Guarantee Trustee has notified the other parties of new contact details,
in which case the Communication must be addressed in the manner last notified by the
Guarantee Trustee.If the Communication is to a Financier then it must be addressed as specified in the
relevant Financier Nomination Letter, unless the Financier has subsequently notified the
other parties of new contact details, in which case the Communication must be addressed in
the manner last notified by the Financier.




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##### 



If the Communication is to a Replacement Trustee or a New Guarantee Trustee then it must be
addressed as specified in the relevant Accession Deed, unless the Replacement Trustee or
New Guarantee Trustee has subsequently notified the other parties of new contact details,
in which case the Communication must be addressed in the manner last notified by the
Replacement Trustee or New Guarantee Trustee.(c)
    
    If the Communication is sent by the sender it shall be deemed to be received by the receiver:
 (i)
    
    if the Communication is hand delivered, upon delivery to the receiving party;(ii)
    
    if the Communication is sent by facsimile, upon the successful completion of
the relevant transmission;(iii)
    
    if the Communication is sent by registered mail within Australia, 2 business
days after the registration of the notice of posting; and(iv)
    
    if the Communication is sent by ordinary mail within Australia, 3 business
days from then including the date of postage,
 provided that where a notice to a party must be copied to another Person, each such notice
will only be given at the time the last notice is received.(d)
    
    For the avoidance of doubt, a Communication shall not be sent by electronic email.12.
    
    GOVERNING LAW AND JURISDICTION12.1
    
    Governing law
  12.2
    
    Submission to jurisdiction




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##### 



12.3
    
    Service(a)
    
    A document may be served on a party or a Financier by delivering it to that party at its
address in clause 11.(b)
    
    This clause 12.3 does not prevent another mode of service.13.
    
    COUNTERPARTS
  14.
    
    GENERAL14.1
    
    Severability(a)
    
    If a provision of this deed is invalid, illegal or unenforceable, then that provision to
the extent of the invalidity, illegality or unenforceability must be ignored in the
interpretation of this deed.(b)
    
    All the other provisions of this deed remain in full force and effect.14.2
    
    No waiver(a)
    
    A partys agreement to waive a right or entitlement under this deed is only effective if
that party gives written notice of that waiver to the party seeking the benefit of the waiver.(b)
    
    Waiver by a party of anything required to be done under this deed is not a waiver of any
other thing required to be done under this deed.(c)
    
    Paragraph (b) applies whether the other act or thing required to be done under this deed is
of the same or a different nature as the act or thing waived.(d)
    
    A failure or delay in exercising a right arising from a breach of this deed is not a waiver
of that right.(e)
    
    The parties must not waive this clause 14.




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##### 



14.3
    
    Further assurances
  14.4
    
    Entire agreement(a)
    
    This deed embodies the entire agreement between the Fund Trustee and the NSW Government
on the one part, and the Guarantee Trustee and the Financiers on the other part.(b)
    
    This deed supersedes all previous agreements.14.5
    
    Cumulative rights
  (a)
    
    is cumulative; and(b)
    
    does not diminish any other right, power, discretion and remedy of any party or a Financier.14.6
    
    Certificates
  14.7
    
    Amendment of this deed
  14.8
    
    Confidentiality
 Representative




---



##### 



(a)
    
    the partys related bodies corporate, professional advisors, bankers, financial advisors and
financiers, if those persons undertake to keep the information disclosed confidential;(b)
    
    comply with any applicable law or requirement of any regulatory body (including any relevant
stock exchange) and any corporate governance guidelines adopted by such bodies which are
adopted by such party;(c)
    
    any of its employees to whom it is necessary to disclose the information, if that employee
undertakes to keep the information confidential;(d)
    
    any Person as permitted by the written agreement of all parties; or(e)
    
    any Person if the content of the disclosure is or has become generally available to the
public otherwise than by breach of this deed.15.
    
    GUARANTEE TRUSTEE LIMITATION OF LIABILITY
 To be provided by the Guarantee Trustee




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##### 



Executed
  Signed,
sealed and delivered The Honourable Morris Iemma MP,
 Premier of New South Wales,
  
 Signed, sealed and delivered Asbestos Injuries Compensation Fund Trustee
Limited Asbestos Injuries (JH) Compensation
Foundation
 [Insert name]
    
    
    [Insert name][Insert Capacity]
    
    
    [Insert Capacity]Signed, sealed and deliveredby James Hardie Industries N.V.[Insert name]
    
    
    [Insert name][Insert Capacity]
    
    
    [Insert Capacity]]Signed, sealed and deliveredby [Guarantee Trustee]




---



##### 



[Insert name]
    
    
    [Insert name][Insert Capacity]
    
    
    [Insert Capacity]




---



##### 



SCHEDULE 1
 FINANCIER NOMINATION LETTER
 Date
 Financier
 Intercreditor Deed  Financier Nomination Letter
 insert name Guarantee Trustee insert date Intercreditor Deed
   Name:
    
    [insert details]Date:
    
    [insert details]Parties:
    
    [insert details]
    Interpretation Governing law and Jurisdiction




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##### 



Endorsement by the Guarantee Trustee:
   INSERT NAME OF GUARANTEE TRUSTEE
    Acceptance by the nominated Financier
    (a)
    
    affect the status or ranking of the Compensation Debt as an ordinary unsecured claim
(concurrente vordering) against JHINV;(b)
    
    affect the status or ranking of the Compensation Debt as against the other debts (including
the Finance Money Debt) or the other creditors of JHINV (including the Financiers) in an
Insolvency of JHINV; nor




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##### 



(c)
    
    constitute a subordination agreement within the meaning of section 3:277 (2) Dutch Civil
Code.
  (i)
    
    be bound by the terms of that deed;(ii)
    
    promptly respond to any requests from the Guarantee Trustee for (A) instructions as to the
manner in which the Guarantee Trustee should exercise any of its rights or benefits under the
Intercreditor Deed, or (B) any consent required from the Financiers (and agree not to
unreasonably withhold or delay such consent); and(iii)
    
    agree that if we fail to promptly so respond, the Guarantee Trustee may exercise such rights
or benefits in accordance with the instructions of the requisite majority of the Financiers
who do so respond in accordance with the Finance Guarantee.
  Insert name of Financier




---



##### 



SCHEDULE 2
 ACCESSION DEED
 Date
 Existing parties to the Intercreditor Deed
 Intercreditor Deed  Accession as [Replacement Trustee / New Guarantee Trustee]
 insert name Guarantee
Trustee insert date Intercreditor Deed
   Interpretation Governing law and Jurisdiction
  NAME OF REPLACEMENT TRUSTEE / NEW GUARANTEE TRUSTEE




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##### 



SCHEDULE 3
 FORM OF POWER OF ATTORNEY
 Appointer:
    
    [Asbestos Injuries Compensation Fund Trustee
Limited in its capacity as trustee for the Asbestos
Injuries (JH) Compensation Foundation] / [[name of
replacement trustee] as replacement trustee of the
Asbestos Injuries (JH) Compensation Foundation] / [name of
New Person] as [successor] to [Asbestos Injuries
Compensation Fund Trustee Limited] / [name of replacement
trustee] in its capacity as trustee for the Asbestos
Injuries (JH) Compensation Foundation] ([ABN]) of [address
of Appointer]Attorney:
    
    [name of Guarantee Trustee] ([ABN])
( Guarantee Trustee ) of [address of Guarantee
Trustee] and each Authorised Officer of the Guarantee
Trustee from time to time individuallyDate:
    
    [date of power of attorney]
 1. APPOINTMENT
  2. WHAT THE APPOINTER MAY DO
  (a)
    
    exercise the right to cast all and any votes attaching to, or to be cast in respect of, the
Compensation Debt during the Insolvency of JHINV at, or in connection with, any meeting,
proceeding or distribution concerning the Insolvency of JHINV for so long as any Finance Money
Debt remains outstanding and to the exclusion of the right of the Appointor to exercise all of
any such votes for so long as any Finance Money Debt remains outstanding;
 (b)
    
    do anything necessary or incidental to such exercise including, without limitation, signing
and delivering documents;




---



##### 



(c)
    
    provide an original or copy of this power of attorney to an Insolvency Official for the
purpose of establishing the right and entitlement of the Attorney during the Insolvency of
JHINV to exercise the right to cast all and any votes attaching to, or to be cast in respect
of, the Compensation Debt during the Insolvency of JHINV at, or in connection with, any
meeting, proceeding or distribution concerning the Insolvency of JHINV; and
 (d)
    
    do anything which in the Attorneys opinion is necessary or desirable to ensure the validity
and enforceability of this power of attorney under any applicable law (including, without
limitation, stamping or registering this power of attorney or filing this power of attorney
with any government authority).
  3. GENERAL
 3.1 Attorneys acts valid
  3.2 Benefit to the Attorney
  (a)
    
    it involves a conflict of duty; or(b)
    
    the Attorney has a personal interest in the doing of that act.
 3.3 Governing law




---



##### 



4. COMPLIANCE WITH INTERCREDITOR DEED
  5. INTERPRETATION
  Authorised Officer
 Compensation Debt
 Finance Money Debt
 Insolvency
 Insolvency Official
 Intercreditor Deed insert name
of Guarantee Trustee insert date
 JHINV
 EXECUTED
 Signed, sealed and delivered name of Appointer
 [name
of signatory]
    
    
    
    [name
of signatory][capacity of signatory]
    
    
    
    [capacity of signatory]




---



##### 



ATTACHMENT A
 DICTIONARY AND INTERPRETATION
 (CLAUSE 1)
 1. DICTIONARY
  Accession Deed
 Annual Payment
 Attorney
 Audited Financial Statements GAAP
 (a)
    
    where that Person is Listed at the time the relevant audit report is signed, the
generally accepted accounting principles used in that Persons published financial
reports; or
 (b)
    
    where that Person is not Listed at that time and paragraph (c) does not
apply, US GAAP or such other GAAP as is commonly applied by multinational companies at
that time in respect of their financial statements; or
 (c)
    
    where that Person is not Listed at that time and it and its subsidiaries operate wholly or
predominantly in one jurisdiction, the generally accepted accounting principles of that
jurisdiction.
 Authorised Officer
 (a)
    
    in the case of the Guarantee Trustee or a Financier, a director or secretary, or an officer
whose title contains the word director, chief, head, president,
vice-president, executive or manager or a Person performing the functions




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##### 



of any of
them, or any other Person nominated by the Guarantee Trustee or the Financier, as the case
may be, as an Authorised Officer for the purposes of this deed;(b)
    
    in the case of the Fund Trustee, a Person appointed by the Fund Trustee and notified to the
Guarantee Trustee and the Financiers as an Authorised Officer for the purposes of this deed,
and whose specimen signature is provided with such notification;(c)
    
    in the case of JHINV, a managing director of JHINV or a person appointed by JHINV and
notified to the Fund Trustee, the NSW Government, the Guarantee Trustee and the Financiers as
an Authorised Officer for the purposes of this deed, and whose specimen signature is provided
with such notification; and(d)
    
    in the case of the NSW Government, any person who is a member of the Chief Executive Service
or the Senior Executive Service of the New South Wales Public Service at the time the relevant
act pursuant to this deed is to be undertaken. The Guarantee Trustee may rely on a statement
from any person it reasonably believes is a member of the Chief Executive Service or the
Senior Executive Service of the New South Wales Public Service that such person is in fact a
member of the Chief Executive Service or the Senior Executive Service of the New South Wales
Public Service.
 Business Day
 Communication
 Compensation Debt




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##### 



Compensation Parties
 Controlled Entity
 Cross Guarantee (Fund Guaranteed Money) Subsidiary Guarantor
 (a)
    
    in favour of the Fund Trustee in respect of the Fund Guaranteed Money;
 (b)
    
    on substantially the same terms as a guarantee or indemnity (or other covenant to secure the
satisfaction of any payment or obligation) given by the Subsidiary Guarantor in respect of
financial accommodation provided by a Person to another member of the JHINV Group;
 (c)
    
    which terminates when the guarantee, indemnity or other covenant referred to in paragraph (b)
terminates whether by express provision or by operation of law,
  Excluded Lender
 (a)
    
    is a trade creditor;




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##### 



(b)
    
    has provided any debt on terms that it is to be subordinated to the Compensation Debt;(c)
    
    has provided any debt or other borrowing which arises pursuant to a derivative:
 (i)
    
    relating to equity interests in a member of the JHINV Group; or(ii)
    
    which is recognised as equity under applicable accounting standards;
 (d)
    
    is a member of the JHINV Group;
 (e)
    
    is or becomes a creditor in respect of an amount owing to such Person in its capacity as a
shareholder of JHINV or another member of the JHINV Group otherwise than on arms length
terms;
 (f)
    
    provides financial accommodation to a Controlled Entity of the JHINV Group and receives the
benefit of a guarantee or indemnity (or other covenant to secure the satisfaction of any
payment or obligation) given by a JHINV Group member (other than JHINV), where there is no
Cross Guarantee (Fund Guaranteed Money) provided to the Fund Trustee on substantially the same
terms as the Guarantee; or
 (g)
    
    acquires the rights, as a creditor, of any such Person referred to in any of paragraphs (a)
to (f) inclusive or their assignees.
 Final Funding Agreement
 Finance Document




---



##### 



Finance Guarantee insert date
 Finance Money Debt
 (a)
    
    if any Financier (for its own account or for the account of another Person) or the Guarantee
Trustee (for the account of a Financier):
 (i)
    
    fails to lodge a proof of debt (or similar claim) in an Insolvency of JHINV
within the time provided for under applicable law (as such time may be extended by a
relevant Insolvency Official); or(ii)
    
    lodges a proof of debt (or similar claim) in an Insolvency of JHINV and such
proof of debt has not been accepted in whole or part by the relevant Insolvency
Official (and such decision is not subject to appeal to, or review by, that Insolvency
Official or another relevant Insolvency Official and the time for commencing any such
appeal, or requesting any such review, has passed),
 such amount shall be deemed to be zero or, in the case of subparagraph (ii), such amount
shall be deemed to be reduced to the extent that it is not accepted by the relevant
Insolvency Official;
 (b)
    
    if interest is payable on such amount under applicable law, the Finance Money Debt also
includes such interest as is payable under applicable law (including all interest accruing on
or subsequent to the filing of a petition initiating any proceeding in bankruptcy or
insolvency or any like proceeding whether or not such interest is an allowed claim in such
proceeding);




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##### 



(c)
    
    if a Financier enters into, or is otherwise bound by, any conversion of debt to equity (which
is not also a distribution subject to paragraph (d) below), then Finance Money Debt shall be
deemed to be reduced by the full amount of the face value of the debt (and any applicable
interest) so converted; or
 (d)
    
    if a Financier receives any money or other property or any other right pursuant to a
Reconstruction Event, then Finance Money Debt (and any applicable interest) shall be deemed to
be reduced by the full amount of the fair market value of the money, property or right
acquired as at the date of receipt.
  (i)
    
    irrespective of the capacity in which JHINV, the other member of the JHINV
Group or the Financier became entitled to the amount concerned;(ii)
    
    irrespective of the capacity in which JHINV, the other member of the JHINV
Group or the Financier became liable in respect of the amount concerned;(iii)
    
    whether JHINV, the other member of the JHINV Group or the Financier is
liable as principal debtor, as surety or otherwise;(iv)
    
    whether JHINV or other member of the JHINV Group is liable alone, or together
with another Person;(v)
    
    even if JHINV or another member of the JHINV Group owes an amount or
obligation to the Financier because it was assigned to the Financier, whether or not:
 A.
    
    the assignment was before, at the same time as, or after
the date of this deed; orB.
    
    JHINV or another member of the JHINV Group consented to or
was aware of the assignment; orC.
    
    the assigned obligation was secured;
 (vi)
    
    even if this deed was assigned to the Financier, whether or not:




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##### 



A.
    
    JHINV or another member of the JHINV Group consented to or
was aware of the assignment; orB.
    
    any of the Finance Money Debt was previously unsecured; or
 (vii)
    
    if JHINV or another member of the JHINV Group is a trustee, whether or not
it has a right of indemnity from the trust fund.
 Financial Year
 Financier
 Financier Nomination Letter
 Fund Trustee
 Fund Guaranteed Money
 (a)
    
    at any time;
 (b)
    
    for any reason or any circumstance in connection with any agreement, transaction, instrument
(whether negotiable or non-negotiable), document, event, act, omission, matter or thing
whatsoever;
 (c)
    
    whether at law or otherwise; and
 (d)
    
    whether or not of a type but in the contemplation of the parties of the date of this deed,




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##### 



Guarantee insert date
 Guarantee Trustee insert name
 Heads of Agreement
 Independent Expert
 (a)
    
    has relevant and substantive experience and expertise in Insolvency and, if applicable,
financial restructuring appropriate to undertake the determination referred to in clause 8;
 (b)
    
    except to the extent he or she is entitled to be paid fees or reimbursed or indemnified for
costs and expenses by the NSW Government in accordance with this deed, has no interest or duty
which to his or her knowledge conflicts or may conflict with his or her functions as
contemplated under this deed; and
 (c)
    
    is not a member of a firm, or a director or employee of a firm or a body owned by the firm,
performing any role as advisor, banker, custodian or trustee to the JHINV Group or (except for
roles undertaken in the ordinary course of business for state owned business enterprises) the
NSW Government during a period of 3 years prior to the date of appointment under clause 8.
 Insolvency Event




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##### 



Insolvency Official
 (a)
    
    a receiver in bankruptcy (curator), an administrator (bewindvoerder) and a liquidator
(vereffenaar) appointed under Dutch law or a trustee or debtor in possession any proceedings
under Chapter 7 or Chapter 11 of the US Bankruptcy Code in relation to JHINV (or another
member of the JHINV Group in circumstances where the US bankruptcy court has jurisdiction to
make an order affecting the nature, timing, quantum or ranking of creditors claims against
JHINV); and
 (b)
    
    where the context so requires, a supervisory judge or a court of competent jurisdiction
exercising jurisdiction in respect of the Insolvency of JHINV.
 Insolvent
 (a)
    
    admits in writing its inability to pay its debts generally as they become due (otherwise then
as contemplated in clause 16.6 of the Final Funding Agreement);
 (b)
    
    was established under Dutch law and files a petition with any court in the Netherlands in
relation to its bankruptcy (faillissement) or seeking an order for a suspension of payments
(surseance van betaling);
 (c)
    
    files, or consents by answer or otherwise to the filing against it of, a petition for relief
or insolvent reorganisation or insolvent arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any bankruptcy, insolvency, insolvent reorganisation,
insolvent moratorium or other similar law of any jurisdiction (including, without limitation,
a filing by the Person under Chapter 7 or Chapter 11 of the US Bankruptcy Code), provided that
where the filing is a filing under Chapter 11 of that Code, the Person:
 (i)
    
    is at the time of filing unable to pay its debts generally as and when they
become due; or(ii)
    
    in the case of JHINV, after it makes such a filing, fails to pay a JHINV
Contribution or other amount under the JHINV Guarantee when such payment would (but
for the moratorium granted as a result of that filing) have been due for 30 days after
that due date,
 and also provided that, in any such filing under Chapter 11 of that Code a Person is
Insolvent no later than the earliest date as of which creditors may vote on any matter or
accept or reject a plan of reorganisation;




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##### 



(d)
    
    makes an assignment for the benefit of its creditors generally;
 (e)
    
    consents to the appointment of a custodian (not being a nominee for the person), receiver,
receiver and manager, trustee or other officer with similar powers with respect to it or with
respect to a substantial part of its property;
 (f)
    
    consents to the appointment of an insolvency administrator or such an insolvency
administrator is appointed and that appointment is not terminated within 28 days;
 (g)
    
    is adjudicated as insolvent or to be liquidated, in each case, by a court of competent
jurisdiction; or
 (h)
    
    is subject to a Wind-Up Event,
 Insolvency
 James Hardie Successor
 JHIL
 JHINV
 JHINV Group
 Liquidation
 Listed




---



##### 



Net Finance Money Debt
 New Guarantee Trustee
 New Person
 Notice of Voting in Insolvency
 Option
 Parent Entity
 Performing Subsidiary
 Performing Subsidiary Intercreditor Deed
 Person
 Preferred Option




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##### 



Proceeds
 (a)
    
    any amount (in the form of money or any other property) received or recovered by a
Compensation Party in respect of the Compensation Debt during an Insolvency of JHINV;
 (b)
    
    any amount (in the form of money or any other property) received or recovered by a
Compensation Party in connection with the failure by any of them or JHINV to comply with their
respective obligations under this deed.
 Reconstruction Event
 (a)
    
    the summoning of a meeting of creditors or the obtaining of an order of a court to do so for
the purpose of considering any scheme or plan of arrangement for reconstruction or compromise
with creditors;
 (b)
    
    a final order for relief under Chapter 11 of the US Bankruptcy Code is entered by a US court;
 (c)
    
    a filing by JHINV for a suspension of payments under Dutch law, provided that the Court
grants the (provisional) suspension of payments to JHINV;
 (d)
    
    any comparable action under the laws of any other jurisdiction occurs having substantially
the same effect as the orders described in paragraphs (b) and (c),
  Related Agreement
 Replacement Trustee




---



##### 



(a)
    
    the Performing Subsidiary in respect of the Fund Guaranteed Money and the Final Funding
Agreement; and
 (b)
    
    JHINV in respect of the Guarantee (including all amounts payable under the guarantee of
payment of the Fund Guaranteed Money).
 Residual Rights
 Security Interest
 (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
 Specified Office
 Specified Proportion
 (a)
    
    if in the Insolvency of JHINV, the votes relating to the Compensation Debt can be
proportionately cast in favour of different courses of action:
 A.
    
    100 per cent of the amount of the Compensation Debt,less




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##### 



B.
    
    such percentage of the Compensation Debt, which when added to all Finance
Money Debt owed by JHINV, represents the amount reasonably expected at that time
(having regard to the value of the assets of JHINV available for distribution to pay
the claims of ordinary unsecured creditors as estimated by the Insolvency Official (or
otherwise determined or estimated for the purposes of the relevant Insolvency
proceeding in accordance with applicable law) and taking into account prior ranking
claims, the likely or anticipated distribution to the Financiers by the Insolvency
Official and any likely payment to the Guarantee Trust under clause 4) would be
required to enable discharge and satisfaction of the Finance Money Debt in full; or
 (b)
    
    if in the Insolvency of JHINV, the votes relating to the Compensation Debt cannot be
proportionately cast in favour of different courses of action, 100 per cent of the amount of
the Compensation Debt.
 Trust Convention
 US GAAP
 Wind-Up Event
 (a)
    
    a final court order is entered that it be wound up or declared bankrupt;
 (b)
    
    a liquidator (excluding a provisional liquidator) is appointed to it and the appointment is
not subsequently terminated;
 (c)
    
    a court declaration of bankruptcy is made in relation to it and is not subsequently
withdrawn, struck out, dismissed, vacated or reversed;
 (d)
    
    the dissolution of such Person under Dutch law (ontbinding) or the law of any other
jurisdiction;
 (e)
    
    the declaration of its bankruptcy under Dutch law (faillissement);
 (f)
    
    the Liquidation of that Person;




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##### 



(g)
    
    a final order for relief occurs or is deemed to occur in relation to it under Chapter 7 or
Chapter 11 of the US Bankruptcy Code which, when implemented, will result in the Liquidation
of that Person; and
 (h)
    
    any comparable action occurs under the law of any competent jurisdiction which has a
substantially the same effect to paragraphs (a) to (g) of this definition,
  INTERPRETATION
  (a)
    
    Headings are for convenience only and do not affect the interpretation of this deed.(b)
    
    The singular includes the plural and vice versa.(c)
    
    Words that are gender neutral or gender specific include each gender.
 (d)
    
    Where a word or phrase is given a particular meaning, other parts of speech and grammatical
forms of that word or phrase have corresponding meanings.
 (e)
    
    The words such as, including, particularly and similar expressions are not used as nor
are intended to be interpreted as words of limitation.
 (f)
    
    A reference to:
 (i)
    
    a thing (including but not limited to a chose in action or other right)
includes a part of that thing;(ii)
    
    a party or a Financier includes its successors and permitted assigns;(iii)
    
    a document includes all amendments or supplements to that document;




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##### 



(iv)
    
    a clause, term, party, schedule or attachment is a reference to a clause or
term of, or party, schedule or attachment to this deed;(v)
    
    this deed includes all schedules and attachments to it;(vi)
    
    a law includes a constitutional provision, treaty, decree, convention,
statute, regulation, ordinance, by-law, judgment, rule of common law or equity or a
rule of an applicable Financial Market and is a reference to that law as amended,
consolidated or replaced;(vii)
    
    an agreement other than this deed includes an undertaking, or legally
enforceable arrangement or understanding whether or not in writing;(viii)
    
    a monetary amount is in Australian dollars; and(ix)
    
    the words to prove for, prove and right of proof, when used in
connection with a Insolvency proceeding under Dutch law include, without limitation,
filing, filing for verification purposes and verification procedure, as the
context may require.
 (g)
    
    An agreement on the part of two or more persons binds them severally.
 (h)
    
    When the day on which something must be done is not a Business Day, that thing must be done
on the following Business Day.(i)
    
    In determining the time of day where relevant to this deed, the relevant time of day is:
 (i)
    
    for the purposes of giving or receiving notices, the time of day where a
party receiving a notice is located; or(ii)
    
    for any other purpose under this deed, the time of day in the place where the
party required to perform an obligation is located.
 (j)
    
    No rule of construction applies to the disadvantage of a party because that party was
responsible for the preparation of this deed or any part of it.




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##### 



3. TRUST CONVENTION
  (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.




---



##### 



Annexure 7B  Intercreditor Deed (Performing Subsidiary)
 Final
draft 3Annexure 7B to the Final Funding
AgreementDATE: 01.12.2005
    

(GILBERT TOBIN LOGO)
 PERFORMING SUBSIDIARYINTERCREDITOR DEEDTHE STATE OF NEW SOUTH WALESASBESTOS INJURIESCOMPENSATION FUND TRUSTEELIMITED (ABN [INSERT])LGTDD PTY LIMITED (ACN 116 110 948)[GUARANTEE TRUSTEE] (ABN [INSERT])




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##### 



CONTENTS1.
    
    PRELIMINARY
    
    
    31.1 Defined Terms and Interpretation
    
    
    31.2 Consideration
    
    
    31.3 Crown immunity
    
    
    32.
    
    DEED
    
    
    42.1 Effect
    
    
    42.2 Benefit
    
    
    42.3 Inconsistency
    
    
    63.
    
    INTERCREDITOR ARRANGEMENTS
    
    
    63.1 Purpose of this deed
    
    
    63.2 NSW Government not a creditor of LGTDD
    
    
    73.3 Turnover
    
    
    73.4 Status and ranking of the Compensation Debt (Performing Subsidiary)
    
    
    74.
    
    PROCEDURE ON INSOLVENCY
    
    
    74.1 Proceeds held on trust
    
    
    74.2 Distribution of Proceeds
    
    
    84.3 Payment of amounts recovered
    
    
    94.4 Residual Rights
    
    
    94.5 No exercise of Financiers' rights
    
    
    104.6 Substitution of the Fund Trustee
    
    
    114.7 Additional Rights
    
    
    114.8 Replacement or substitution of LGTDD
    
    
    125.
    
    RIGHTS IN RELATION TO THE COMPENSATION DEBT (PERFORMING SUBSIDIARY)
    
    
    125.1 No prohibition
    
    
    125.2 NSW Government Enforcement Rights
    
    
    136.
    
    COVENANTS
    
    
    15
 Page i




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##### 



6.1 Restriction on dealings
    
    
    156.2 No security
    
    
    157.
    
    GUARANTEE TRUSTEE
    
    
    167.1 Appointment and removal
    
    
    167.2 Sole Representative
    
    
    167.3 Acknowledgement by Fund Trustee and the NSW Government
    
    
    177.4 No Guarantee Trustee
    
    
    177.5 Acknowledgement by Guarantee Trustee
    
    
    177.6 Substitution of Guarantee Trustee
    
    
    187.7 Standard of Duty
    
    
    197.8 Functions, duties and obligations of the Guarantee Trustee
    
    
    198.
    
    VOTING IN INSOLVENCY PROCEEDINGS
    
    
    238.1 Irrevocable Appointment of Attorney
    
    
    238.2 Voting
    
    
    268.3 Appointment of an Independent Expert
    
    
    288.4 Role of the Independent Expert
    
    
    308.5 Notice of determination by the Independent Expert
    
    
    328.6 Assistance to the Independent Expert
    
    
    328.7 Determination by the Independent Expert final
    
    
    328.8 Consent of NSW Government required in certain circumstances
    
    
    338.9 Defaulting or absent Guarantee Trustee
    
    
    338.10 Residual Power
    
    
    349.
    
    CHANGES TO RIGHTS
    
    
    349.1 Rights of the Financiers are protected
    
    
    349.2 Payments
    
    
    369.3 Reinstatement of rights
    
    
    369.4 Set-off
    
    
    379.5 Discretion in exercising rights
    
    
    37
 Page ii




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##### 



9.6 Partial exercising of rights
    
    
    379.7 Remedies cumulative
    
    
    379.8 Variation and waiver
    
    
    3710.
    
    INCONSISTENT LAW
    
    
    3810.1 Inconsistent law
    
    
    3810.2 Supervening legislation
    
    
    3811.
    
    NOTICES
    
    
    3812.
    
    GOVERNING LAW AND JURISDICTION
    
    
    4112.1 Governing law
    
    
    4112.2 Submission to jurisdiction
    
    
    4112.3 Service
    
    
    4113.
    
    COUNTERPARTS
    
    
    4114.
    
    GENERAL
    
    
    4114.1 Severability
    
    
    4114.2 No waiver
    
    
    4114.3 Further assurances
    
    
    4214.4 Entire agreement
    
    
    4214.5 Cumulative rights
    
    
    4214.6 Certificates
    
    
    4214.7 Amendment of this deed
    
    
    4314.8 Confidentiality
    
    
    4315.
    
    GUARANTEE TRUSTEE LIMITATION OF LIABILITY
    
    
    43SCHEDULE 1  FINANCIER NOMINATION LETTERSCHEDULE 2  ACCESSION DEEDSCHEDULE 3  FORM OF POWER OF ATTORNEY1.
    
    APPOINTMENT
    
    
    12.
    
    WHAT THE APPOINTER MAY DO
    
    
    13.
    
    GENERAL
    
    
    2
 Page iii




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3.1 Attorney's acts valid
    
    
    23.2 Benefit to the Attorney
    
    
    23.3 Governing law
    
    
    24.
    
    COMPLIANCE WITH PERFORMING SUBSIDIARY INTERCREDITOR DEED
    
    
    35.
    
    INTERPRETATION
    
    
    3ATTACHMENT A  DICTIONARY AND INTERPRETATION
 Page iv




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DATED
 PARTIES
 1.
    
    THE STATE OF NEW SOUTH WALESof Level 39, Governor Macquarie Tower, Farrer Place,
Sydney, NSW 2000 ( NSW Government)
 2.
    
    ASBESTOS INJURIES COMPENSATION FUND TRUSTEE LIMITED (ABN[insert] )of
[insert address] in its capacity as trustee for the Asbestos Injuries (JH) Compensation
Foundation (Fund Trustee)
 3.
    
    LGTDD PTY LIMITED(ACN 116 110 948) of Level 3, 22 Pitt Street, Sydney
in the State of New South Wales) (LGTDD)
 4.
    
    [GUARANTEE TRUSTEE] (ABN[insert] )of [insert address] in its capacity
as trustee for the Financiers (Guarantee Trustee)
  BACKGROUND
  A.
    
    James Hardie Industries Limited (JHIL), a company organised under the
laws of Australia, was listed on the Australian Stock Exchange in 1951. The business then
carried on by JHIL and its subsidiaries had by that time been carried on in Australia, in one
form or another and under the James Hardie name, for at least 60 years.
 B.
    
    Under plans of reorganisation and capital restructuring executed between 1998 and
2001, JHIL sold on arms length terms substantially all of its business, operations and
undertaking to members of the JHINV Group with the result that JHINV became the ultimate
holding company of the businesses formerly carried on or controlled by JHIL.
 C.
    
    JHINV is a company organised under the laws of The Netherlands and is listed on
both the Australian Stock Exchange and the New York Stock Exchange (with
 Page 1




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the listing on the latter exchange via American Depository Receipts). At the date of this
deed, the JHINV Group carries on the business of manufacturing building products in the
United States of America, Australia, New Zealand and the Philippines.
 D.
    
    LGTDD is a wholly owned subsidiary of JHINV.
 E.
    
    On 21 December 2004, JHINV and others entered into a non-binding Heads of Agreement
containing, among other things, a set of agreed principles on which LGTDD will provide, and
JHINV will guarantee the payment of, funding to the Fund on a long term basis of compensation
for personal injury and death claims made in Australia against JHIL or certain former
subsidiaries of JHIL arising from exposure to asbestos in Australia.
 F.
    
    The principles contained in the Heads of Agreement have been developed and are set
out in the Final Funding Agreement which is and is intended to be legally binding on all
parties to it and to be enforceable at law and equity.
 G.
    
    The creditor of LGTDD under the Final Funding Agreement is the Fund Trustee.
 H.
    
    The NSW Government is not a creditor of LGTDD in relation to the payment of the
Compensation Debt (Performing Subsidiary).
 I.
    
    However, the NSW Government shall be entitled to directly enforce all promises made
by LGTDD to the Fund Trustee under the Final Funding Agreement subject to, and in accordance
with, the provisions of the Final Funding Agreement.
 J.
    
    The purpose of this deed is to set out the agreement between (1) the Fund Trustee
and the NSW Government, and (2) the Guarantee Trustee and the Financiers, as to the manner in
which certain rights in respect of the Compensation Debt (Performing Subsidiary) and the
Finance Money Debt (Performing Subsidiary) respectively are to be exercised in an Insolvency
of LGTDD.
 K.
    
    LGTDD is a party to this deed for the sole purpose of nominating Persons as
Financiers, assuming certain obligations and being entitled to directly enforce the promises
made under clauses 2.2 and 8 of this deed (and, if required for such enforcement, clauses 1,
2.1, 2.3 and 10 to 14 inclusive).




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L.
    
    This deed is not intended, and shall not be taken, to (1) affect the status or
ranking of the Compensation Debt (Performing Subsidiary) as an ordinary unsecured claim again
LGTDD, or (2) affect the status or ranking of the Compensation Debt (Performing Subsidiary) as
against the other debts (including the Finance Money (Performing Subsidiary)) or the other
creditors of LGTDD (including the Financiers).
 THE PARTIES AGREE
 1. PRELIMINARY
 1.1 Defined Terms and Interpretation
 (a)
    
    A term or expression starting with a capital letter which is defined in the Dictionary
in Part 1 of Attachment A (Dictionary), has the meaning given to it in the
Dictionary.
 (b)
    
    The Interpretation clauses in Part 2 of Attachment A (Interpretation) set out
rules of interpretation for this deed.
 1.2 Consideration
   1.3 Crown immunity




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##### 



2. DEED
 2.1 Effect
  (a)
    
    a deed between the NSW Government, the Fund Trustee, LGTDD and the Guarantee Trustee; and
 (b)
    
    a deed poll by the NSW Government and the Fund Trustee in favour of each Financier from time
to time in respect of any Finance Money Debt (Performing Subsidiary) raised or incurred by
LGTDD from time to time during the term of the Final Funding Agreement.
  (i)
    
    this deed continues for the term of the Final Funding Agreement even though
there may be no Finance Money Debt (Performing Subsidiary) outstanding at any
particular point in time;(ii)
    
    undertakings expressed to be in favour of some of the parties to this deed
(excluding LGTDD) are not given in favour of LGTDD, although LGTDD is entitled to
directly enforce the promises made under clauses 2.2 and 8 of this deed (and, if
required for such enforcement, clauses 1, 2.1, 2.3 and 10 to 14 inclusive).
 2.2 Benefit
 (a)
    
    Each Financier has the benefit of, is bound by and is entitled to enforce this deed even
though it is not a party to, or is not in existence at the date of execution and delivery of
this deed.
 (b)
    
    Subject to clause 2.2(f), the benefit and obligations of this deed may be extended to any
Person (and such Person shall become a Financier) in relation to any document (and such
document shall become a Finance Document) under which liabilities are owed to such Person
where such liabilities are, or are required to be, included in the LGTDD Groups financial
statements or notes thereto as debt or borrowings (including bank loans, letter of credit
facilities, derivatives and debt capital markets issues which are, or are required to be, so
included or noted)




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##### 



of LGTDD (or another member of the LGTDD Group the performance of whose obligations has
been guaranteed by LGTDD) by LGTDD signing and delivering to that Person (or an agent or
trustee acting on behalf of that Person) and the Guarantee Trustee, a Financier Nomination
Letter and the Person countersigning such Financier Nomination Letter and delivering the
countersigned Financier Nomination Letter to the Guarantee Trustee.(c)
    
    Without limiting clause 2.2(b), the benefits and obligations of this deed do not extend to a
Person:
 (i)
    
    by reason of any conduct or representation made by LGTDD or JHINV to that
Person; and(ii)
    
    unless and until the Guarantee Trustee has received a duly countersigned
Financier Nomination Letter from that Person.
 (d)
    
    The Guarantee Trustee must:
 (i)
    
    promptly send a copy of each countersigned Financier Nomination Letter to the
NSW Government and the Fund Trustee (other than a Financier Nomination Letter in
respect of a Financier where this deed has ceased to apply to that Financier in
accordance with clause 2.2(g)) upon an officer of the Guarantee Trustee responsible
for the day to day administration of this deed becoming aware of the occurrence of an
Insolvency of LGTDD; and(ii)
    
    following the occurrence of an Insolvency of LGTDD, on request provide to the
NSW Government and the Fund Trustee written confirmation of the nature and quantum of
the Finance Money Debt (Performing Subsidiary) as at the date such information is
provided.
 (e)
    
    The Fund Trustee and the NSW Government confirm that, subject to clause 2.2(f), each of them
has irrevocably and for valuable consideration authorised LGTDD to sign and deliver any
Financier Nomination Letter, nominating a Person as a Financier and a document as a Finance
Document, and acknowledge and confirm that the provisions of this deed which are for the
benefit of the Financiers, will extend to that Financier and the Finance Document so
nominated.




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##### 



(f)
    
    The benefit and obligations of this deed in relation to Financiers may not be extended to any
Person who is an Excluded Lender and any such nomination shall be of no force or effect for
the purposes of this deed.
 (g)
    
    This deed shall cease to apply to a Financier once:
 (i)
    
    there is no Finance Money Debt (Performing Subsidiary) in respect of that
Financier;(ii)
    
    LGTDD has no outstanding obligations to the Financier in relation to any
Finance Money Debt (Performing Subsidiary); and(iii)
    
    that Financier has no further obligation to provide financial accommodation
to LGTDD (or another member of the LGTDD Group the performance of whose obligations
has been guaranteed by LGTDD) under the relevant Finance Documents,
 or that Financier otherwise consents in writing to such cessation.
 (h)
    
    If this deed ceases to apply to a Financier in accordance with clause 2.2(g), LGTDD and that
Financier must promptly notify the Guarantee Trustee.
 2.3 Inconsistency
  3. INTERCREDITOR ARRANGEMENTS
 3.1 Purpose of this deed
  (a)
    
    the Fund Trustee and the NSW Government; and
 (b)
    
    the Guarantee Trustee and the Financiers,




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##### 



3.2 NSW Government not a creditor of LGTDD
  3.3 Turnover
  3.4 Status and ranking of the Compensation Debt (Performing Subsidiary)
  (a)
    
    affect the status or ranking of the Compensation Debt (Performing Subsidiary) as an ordinary
unsecured claim again LGTDD; or
 (b)
    
    affect the status or ranking of the Compensation Debt (Performing Subsidiary) as against the
other debts (including the Finance Money (Performing Subsidiary)) or the other creditors of
LGTDD (including the Financiers).
 4. PROCEDURE ON INSOLVENCY
 4.1 Proceeds held on trust




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4.2 Distribution of Proceeds
  (a)
    
    first, to the Guarantee Trustee on account of the Finance Money Debt (Performing Subsidiary)
which remains owing by LGTDD to the Financiers, after all payments received from, or due and
payable under the Insolvency by, the Insolvency Official and all prior payments under this
clause 4.2(a), if any, have been taken into account ( Net Finance Money Debt (Performing
Subsidiary));
 (b)
    
    secondly, to the extent of any balance after repayment of the Net Finance Money Debt
(Performing Subsidiary) owed by LGTDD to the Financiers in full, to the Fund Trustee to
satisfy the Compensation Debt (Performing Subsidiary); and
 (c)
    
    thirdly, to the extent of any balance after repayment of the Compensation Debt (Performing
Subsidiary) in full, to LGTDD (for its own account).




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




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##### 



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




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4.6 Substitution of the Fund Trustee
  (a)
    
    promptly notify the Guarantee Trustee of the appointment and the identity and contact details
of the Replacement Trustee; and
 (b)
    
    procure, at its own expense, that the Replacement Trustee duly executes and delivers an
Accession Deed (and a power of attorney as required by clause 8.1(b)) to each party to this
deed.
   4.7 Additional Rights
 (a)
    
    If in connection with an Insolvency of LGTDD a Compensation Party is required to
disgorge or unwind all or part of the recovery of receipt of Proceeds or any other amounts (in
the form of money or other property) received by it from, or on account of, LGTDD and which
have been paid to the Guarantee Trustee or a Financier in accordance with this clause 4, the
Guarantee Trustee or the relevant Financier (as the case may be), must promptly, following a
request from the relevant Compensation Party, repay to the relevant Compensation Party the
amounts (or other property) so received by it from that Compensation Party.
 (b)
    
    If in connection with an Insolvency of LGTDD the Guarantee Trustee or a Financier is required
to disgorge or unwind all or part of the recovery of any money and/or any other property
received pursuant to the Residual Rights and which have been paid to the Fund Trustee in
accordance with clause 4.4(c), the Fund Trustee, must promptly, following a request from the
Guarantee Trustee or the relevant Financier (as the case may be), repay to the Guarantee
Trustee or the




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relevant Financier (as the case may be), the amounts (or
other property) so received by it in accordance with clause
4.4(c).
 4.8 Replacement or substitution of LGTDD
 Replacement Subsidiary
  5. RIGHTS IN RELATION TO THE COMPENSATION DEBT (PERFORMING SUBSIDIARY)
 5.1 No prohibition
   (a)
    
    make demand for, commence proceedings in relation to, enforce any judgment in relation to and
compromise or settle any claim in relation to all such obligations and liabilities;
 (b)
    
    seek or obtain from any court of competent jurisdiction at any time an order directing LGTDD
to make any payment under or to specifically perform its obligations under the Final Funding
Agreement, or similar equitable relief;




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##### 



(c)
    
    make application to any court of competent jurisdiction for the winding up of, or in relation
to the Insolvency, of LGTDD;
 (d)
    
    be present and vote at any meeting of creditors or other meeting which it is entitled to
attend concerning any proposal relating to LGTDD or at any meeting relating to the Insolvency
of LGTDD;
 (e)
    
    individually make submissions to an Insolvency Official in connection with any Insolvency of
LGTDD;
 (f)
    
    prove the Compensation Debt (Performing Subsidiary) in any Insolvency of LGTDD; and
 (g)
    
    participate in any proceedings relating to its right to vote and prove or otherwise
participate in any meeting, proceeding or distribution concerning the Insolvency of LGTDD.
 5.2 NSW Government Enforcement Rights
 (a)
    
    Any action or the enforcement of any rights of a Compensation Party under this deed in
the event of an Insolvency of LGTDD may only be taken by the NSW Government, unless the NSW
Government otherwise consents in writing to the Fund Trustee taking such action or enforcing
those rights.For the avoidance of doubt, this clause does not preclude an Attorney exercising any rights
under a power of attorney granted pursuant to, and in accordance with, clause 8.(b)
    
    Any action taken by the NSW Government under this deed:
 (i)
    
    shall oblige the Fund Trustee to cause any similar or inconsistent action to
be revoked, rescinded or discontinued, provided that the Fund Trustee may resume or
initiate any such action if and to the extent that the corresponding action taken by
the NSW Government is revoked or abandoned by notice in writing by the NSW Government;
and(ii)
    
    shall oblige the NSW Government to hold on trust for the Fund Trustee any
amounts (in the form of money or other property) received or recovered under, or in
respect of, the action taken.




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(c)
    
    Where this deed requires or contemplates the consent of, or a nomination or determination by
the Fund Trustee, such consent, nomination or determination shall only be effective if
consented to by the NSW Government, and the Guarantee Trustee must not accept or act on a
notice of consent, nomination or determination, or any other direction, by the Fund Trustee,
unless such notice is accompanied by consent from the NSW Government.
 (d)
    
    Without limiting clauses 5.2(a) or (c), the parties acknowledge that:
 (i)
    
    under clause 16.6(f) of the Final Funding Agreement the Fund Trustee has
agreed not to, without the prior written consent of the NSW Government, waive or
compromise all or any part of any payment (actually or contingently) due from LGTDD
under the Final Funding Agreement or any Related Agreement (including this deed); and(ii)
    
    any such waiver or compromise by the Fund Trustee that is not accompanied by
such written consent from the NSW Government shall be invalid and has no effect on the
obligations of the parties under this deed and cannot be relied upon by the parties or
pleaded by way of estoppel or otherwise in any action or proceeding for the
enforcement of the Final Funding Agreement or any Related Agreement (including this
deed).
 (e)
    
    The NSW Government acknowledges that its right to enforce this deed is subject to the clause
16.6 of the Final Funding Agreement (but, in an Insolvency of JHINV, only to the extent the
provisions of that clause apply in an Insolvency of JHINV).
 (f)
    
    Without limiting clauses 5.2(a) or (c), the parties acknowledge that the NSW Government may
commence or institute proceedings in any jurisdiction in relation to the existence or amount
of the Compensation Debt (but, in the case of any Wind Up or Reconstruction Amount (as defined
in the Final Funding Agreement), subject to clause 10 of the Final Funding Agreement) or any
voting rights attaching thereto, or any matters incidental to determining such amount or
voting rights.




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6. COVENANTS
 6.1 Restriction on dealings
  (a)
    
    the prior written consent of the Guarantee Trustee acting on instructions from all or a
specified majority of the Financiers as referred to in clause 7.3; or
 (b)
    
    in the case of the creation of a Security Interest, the holders of that Security Interest and
all other persons having an interest in that Security Interest (if any), having agreed to be
bound by the corresponding obligations of the relevant Compensation Party or the NSW
Government under the Final Funding Agreement or this deed (as the case may be).
 6.2 No security
  (a)
    
    (set off) during the Insolvency of LGTDD, exercise any right of set off in
respect of the Compensation Debt (Performing Subsidiary);
 (b)
    
    (Security Interest or guarantee) except for the JHINV Guarantee (as defined in
the Final Funding Agreement) and a Cross Guarantee (Fund Guaranteed Money), accept from LGTDD
or another member of the LGTDD Group the benefit of any Security Interest or guarantee,
indemnity or assurance against financial loss in respect of the Compensation Debt (Performing
Subsidiary); or
 (c)
    
    (arrangements) enter into any arrangement, take any action or fail to do any
thing, which results in any Proceeds received by it from or on account of LGTDD (or such
proportion of the Proceeds sufficient to discharge and satisfy the Finance




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Money Debt (Performing Subsidiary) in full) not being held on trust for the relevant
Financiers in accordance with the terms of this deed,
   7. GUARANTEE TRUSTEE
 7.1 Appointment and removal
  (a)
    
    acknowledge that LGTDD or the Financiers may appoint, remove and replace the Guarantee
Trustee as trustee under the Finance Guarantee (LGTDD) (such newly appointed or replacement
trustee, a New Guarantee Trustee); and
 (b)
    
    agree to do anything reasonably required by LGTDD, the Financiers, the outgoing Guarantee
Trustee or the New Guarantee Trustee to enable the New Guarantee Trustee to become a party to
this deed in substitution for the outgoing Guarantee Trustee.
 7.2 Sole Representative
 (a)
    
    So long as a Person is acting as trustee under the Finance Guarantee (LGTDD), the Fund
Trustee and the NSW Government may deal exclusively with that Person in respect of all matters
concerning this deed.
 (b)
    
    The Financiers acknowledge and confirm that the Person acting as trustee under the Finance
Guarantee (LGTDD) is empowered to exercise all of their rights and powers under this deed and
agree not to take any action or proceedings to set




---



##### 



aside any act, notice or omission of the Guarantee Trustee undertaken in accordance with
this deed.
 7.3 Acknowledgement by Fund Trustee and the NSW Government
    7.4 No Guarantee Trustee
   7.5 Acknowledgement by Guarantee Trustee




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##### 



(a)
    
    is a recognised trustee company under the laws of the place in which its Specified Office is
located;
 (b)
    
    has relevant and substantive experience and expertise in custody of financial obligations and
in Insolvency proceedings generally;
 (c)
    
    except to the extent it is entitled to be paid fees or reimbursed or indemnified for costs
and expenses by LGTDD or JHINV, has no interest or duty which to its knowledge conflicts or
may conflict with its functions under this deed; and
 (d)
    
    is not a member of a firm, or a director or employee of a firm or a body owned by a firm,
performing any role as advisor, banker, custodian or trustee to LGTDD, JHINV, another member
of the JHINV Group or (except for roles undertaken in the ordinary course of business for
state owned business enterprises) the NSW Government during a period of 3 years prior to the
date of this deed or becoming a party to this deed, as the case may be.
 7.6 Substitution of Guarantee Trustee
 (a)
    
    LGTDD or the Financiers can only replace the Guarantee Trustee with any Person who at
the date of becoming a New Guarantee Trustee:
 (i)
    
    is a recognised trustee company under the laws of the place in which its
Specified Office is located;(ii)
    
    has relevant and substantive experience and expertise in custody of financial
obligations and in Insolvency proceedings generally;(iii)
    
    except to the extent it is entitled to be paid fees or reimbursed or
indemnified for costs and expenses by LGTDD or JHINV, has no interest or duty which to
its knowledge conflicts or may conflict with its functions as contemplated under this
deed; and(iv)
    
    is not a member of a firm, or a director or employee of a firm or a body
owned by a firm, performing any role as advisor, banker, custodian or trustee to
LGTDD, JHINV, another member of the JHINV Group or (except for roles undertaken in the
ordinary course of business for state owned business enterprises) the NSW Government
during a period of 3 years prior to becoming a party to this deed.




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##### 



(b)
    
    A substitution under clause 7.6(a) will not occur and a New Guarantee Trustee acquires no
rights or benefits under this deed unless and until the New Guarantee Trustee duly executes
and delivers an Accession Deed to each party to this deed. This clause does not require an
Accession Deed to be delivered to a Financier.
 (c)
    
    If the New Guarantee Trustee is not incorporated in Australia, the Financiers must procure,
at no expense to the Fund Trustee or the NSW Government, the delivery to the Fund Trustee and
the NSW Government of an opinion of generally recognised independent legal counsel qualified
to practise in the relevant jurisdiction to the effect that the Accession Deed and this deed
are valid, binding and enforceable obligations of the New Guarantee Trustee (subject to laws
and defences generally affecting the enforcement of contracts and the discretionary nature of
equitable remedies).
 7.7 Standard of Duty
  7.8 Functions, duties and obligations of the Guarantee Trustee
 7.8.1 Role of the Guarantee Trustee
  (a)
    
    upon an officer of the Guarantee Trustee responsible for the day to day administration
of this deed becoming aware of any Insolvency of LGTDD, promptly send to each Compensation
Party a notice which requests them to advise in writing the amount of the Compensation Debt
(Performing Subsidiary) or, alternatively, the basis on which the Compensation Debt
(Performing Subsidiary) is to be calculated and, in the event of a conflict in the amount of
the Compensation Debt (Performing Subsidiary) advised by the Fund Trustee and the NSW
Government, then (in the absence of manifest error) the amount advised by the NSW Government
prevails;
 (b)
    
    not do anything to prevent or interfere with a Compensation Party proving the Compensation
Debt (Performing Subsidiary) in an Insolvency (to the extent that




---



##### 



the Compensation Party is acting in accordance with the Final Funding Agreement and
applicable law);(c)
    
    not make any representation or submission to an Insolvency Official in relation to the
valuation of the claims of the Compensation Parties in respect of the Compensation Debt
(Performing Subsidiary) unless reasonably requested by the NSW Government;(d)
    
    where the Guarantee Trustee is entitled to exercise any vote pursuant to clause 8, take all
necessary and reasonable steps permitted by applicable law to exercise that vote for the value
of the Compensation Debt (Performing Subsidiary) for the purposes of the Insolvency of LGTDD
(including the presentation of all evidence and submissions to any Insolvency Official as
reasonably requested by the NSW Government);(e)
    
    promptly advise each Compensation Party of any dispute between:
 (i)
    
    the Guarantee Trustee; and(ii)
    
    an Insolvency Official, LGTDD, JHINV and/or one or more creditors of LGTDD,
 in relation to the Compensation Debt (Performing Subsidiary) or this deed and which may
come before a court of competent jurisdiction, and take all reasonable steps permitted by
applicable law to delay the determination of the dispute for such period of time (as is
reasonable having regard to the procedural laws governing the conduct of the dispute before
the relevant court of competent jurisdiction) so as to give the Compensation Parties a
reasonable opportunity to present evidence and submissions to the relevant court of
competent jurisdiction if it so wishes;
 (f)
    
    if LGTDD is Insolvent, take all reasonable action permitted by applicable law to ensure that:
 (i)
    
    all moneys recoverable in respect of the Finance Money Debt (Performing
Subsidiary) are duly and promptly recovered from the relevant Insolvency Official; and




---



##### 



(ii)
    
    any amount payable or repayable to a Compensation Party by a Financier under
this deed, by reason of that Financier receiving whether by way of distribution by the
Insolvency Official in the Insolvency, as payments by a Compensation Party under this
deed or otherwise, an amount in excess of the Finance Money Debt (Performing
Subsidiary) owed to that Financier, are paid or repaid by that Financier to that
Compensation Party;
 (g)
    
    not do anything to prevent or interfere with a Compensation Party promptly recovering from
the relevant Insolvency Official all moneys which are recoverable in respect of the
Compensation Debt (Performing Subsidiary);
 (h)
    
    take all reasonable steps permitted by applicable law and requested by the NSW Government to
assist the Compensation Parties with the determination of any dispute between:
 (i)
    
    a Compensation Party; and(ii)
    
    an Insolvency Official, LGTDD, JHINV and/or one or more creditors of LGTDD.
 in relation to the Compensation Debt (Performing Subsidiary) or this deed;
 (i)
    
    to the extent permitted by applicable law, apply for and use reasonable endeavours to obtain
any stay, extension of time or other order in relation to the Insolvency of LGTDD which the
Guarantee Trustee reasonably considers is necessary in order to enable any Independent Expert
to discharge its responsibilities under and in accordance with clause 8 or which the NSW
Government reasonably requests for such purpose;
 (j)
    
    upon an officer of the Guarantee Trustee responsible for the day to day administration of
this deed becoming aware of any breach of this deed by any party, promptly notify LGTDD, the
Financiers and the Compensation Parties of that breach including details of that breach; and
 (k)
    
    promptly notify LGTDD, the Financiers and the Compensation Parties if for any reason it is
unable to perform its obligations under this deed.




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##### 



7.8.2
    
    Provision of information
  7.8.3 Limitations on the obligations of the Guarantee Trustee
   (a)
    
    in a manner which does not constitute a breach by the Guarantee Trustee of its fiduciary
duties owed to the Financiers in respect of the Finance Money Debt (Performing Subsidiary); or
 (b)
    
    by the NSW Government doing the relevant act, matter or thing in a manner which, if the
relevant act, matter or thing had been done by the Guarantee Trustee, would be in accordance
with this deed.




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7.8.4 Duties of Guarantee Trustee
  7.8.5 Limitation on Liability
  (a)
    
    special, indirect, incidental, consequential or punitive damages; or(b)
    
    economic loss, loss of profits, loss of revenue, or loss of goodwill,
  7.8.6 Indemnity
  8. VOTING IN INSOLVENCY PROCEEDINGS
 8.1 Irrevocable Appointment of Attorney
 (a)
    
    Subject to this clause 8, Asbestos Injuries Compensation Fund
Trustee Limited in its
capacity as trustee for the Asbestos Injuries (JH) Compensation Foundation irrevocably and for
valuable consideration agrees to appoint the Guarantee Trustee and each Authorised Officer of
the Guarantee Trustee individually as the attorney of Asbestos Injuries Compensation Fund
Trustee Limited in its capacity as trustee for the Asbestos Injuries (JH) Compensation
Foundation (together with any person appointed as an attorney in accordance with clause
8.1(b), an Attorney) to vote the Compensation Debt (Performing Subsidiary) during
the Insolvency of LGTDD or at any meeting, proceeding or distribution concerning




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the Insolvency of LGTDD for so long as any Finance Money Debt (Performing Subsidiary)
remains outstanding, by executing a power of attorney substantially in the form of Schedule
3 to this deed, provided that any vote must be exercised in accordance with this clause 8
and Asbestos Injuries Compensation Fund Trustee Limited in that capacity further
irrevocably and for valuable consideration agrees, if required for further assurance, to
execute a proxy or authority in a form ordinarily required under the applicable law
governing the relevant proceeding.(b)
    
    Subject to this clause 8 and simultaneously with executing and delivering an Accession Deed
in accordance with clause 4.6, each Replacement Trustee must irrevocably and for valuable
consideration appoint the Guarantee Trustee and each Authorised Officer of the Guarantee
Trustee individually as the attorney of the Replacement Trustee to vote the Compensation Debt
(Performing Subsidiary) during the Insolvency of LGTDD or at any meeting, proceeding or
distribution concerning the Insolvency of LGTDD for so long as any Finance Money Debt
(Performing Subsidiary) remains outstanding, by executing a power of attorney substantially in
the form of Schedule 3 to this deed provided that any vote must be exercised in accordance
with this clause 8 and the Replacement Trustee further irrevocably and for valuable
consideration agrees, if required for further assurance, to execute a proxy or authority in a
form ordinarily required under the applicable law governing the relevant proceeding.(c)
    
    Subject to this clause 8, the Fund Trustee and the NSW Government agree not to vote or
attempt to vote the Compensation Debt (Performing Subsidiary) during the Insolvency of LGTDD
or at any meeting, proceeding or distribution concerning the Insolvency of LGTDD for so long
as any Finance Money Debt (Performing Subsidiary) remains outstanding.(d)
    
    The Fund Trustee irrevocably and for valuable consideration authorises the Guarantee Trustee
to provide an original or copy of any power of attorney executed in accordance with clause
8.1(a) or (b) to an Insolvency Official for the purpose of establishing the right and
entitlement of each Attorney during the Insolvency of LGTDD to exercise the appointors right
to vote the Compensation Debt (Performing Subsidiary) at any meeting, proceeding or
distribution concerning the Insolvency of LGTDD.(e)
    
    The Guarantee Trustee must ensure that an Attorney only exercises, and in circumstances where
the Guarantee Trustee is itself appointed an Attorney, the




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Guarantee Trustee must only exercise, its rights under a power of attorney granted in
accordance with this clause 8 in accordance with, and subject to, the provisions of this
deed.(f)
    
    To the extent required under applicable law, the Fund Trustee agrees to ratify:
 (i)
    
    anything the Guarantee Trustee does in accordance with this clause 8, and
such ratification is without prejudice to its rights in respect of any breach of this
deed by the Guarantee Trustee; and(ii)
    
    whatever an Attorney does in exercising powers under a power of attorney
granted in accordance with this clause 8, provided that there is no obligation to
ratify or confirm any act or matter in breach of this deed or any applicable law.
 (g)
    
    Subject to the provisions of this deed, each Compensation Party and the NSW Government must
not do anything to prevent or interfere with the exercise by:
 (i)
    
    the Guarantee Trustee of its rights and powers, or the performance of its
obligations, under this clause 8; or(ii)
    
    an Attorney of its rights and powers, or the performance of its obligations,
under the relevant power of attorney.
 (h)
    
    Subject to the terms and conditions of this deed and subject to compliance with its
provisions, an Attorney may exercise the right to vote in the appointors name or, if
necessary or desirable under the applicable law governing the relevant proceeding, the
Attorneys name, and may do anything necessary or incidental to such exercise including
signing and delivering documents.
 (i)
    
    If for any reason whatsoever an Attorney is not entitled by operation of law to exercise its
rights under the relevant power of attorney, the appointor shall exercise those rights as
directed by the Guarantee Trustee, provided such directions are in accordance with this clause
8.
 (j)
    
    The Guarantee Trustee must promptly provide the NSW Government with reasonable details of any
action taken by the Guarantee Trustee or an Attorney in respect of the exercise of its powers
under a power of attorney granted in accordance with this clause 8.




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(k)
    
    The Guarantee Trustee must promptly provide full details of any action taken or any votes
cast by the Guarantee Trustee or an Attorney in respect of the Compensation Debt (Performing
Subsidiary).
 8.2 Voting
 (a)
    
    The Compensation Parties are responsible for proving the Compensation Debt (Performing
Subsidiary) in any Insolvency of LGTDD and providing such information as to the value of the
Compensation Debt (Performing Subsidiary) as is required by the relevant Insolvency Official
for the purposes of ascribing a value to the Compensation Debt (Performing Subsidiary) for the
purposes of an Insolvency of LGTDD. In proving the Compensation Debt (Performing
Subsidiary) , the Compensation Parties must:
 (i)
    
    use reasonable endeavours to ensure that the relevant Insolvency Official sends
all Notices of Voting in Insolvency in an Insolvency of LGTDD (or a copy of all such
notices) to the Guarantee Trustee; and(ii)
    
    to the extent such notices are received by the Compensation Parties, provide
a copy to the Guarantee Trustee.
 Notwithstanding any other provision of this deed other than, and subject to, clauses
7.8.1(b) and (c), the Guarantee Trustee is not responsible for proving the Compensation
Debt (Performing Subsidiary) in any Insolvency of LGTDD.The Compensation Parties agree to provide the Guarantee Trustee with copies of all
documents submitted to the relevant Insolvency Official for the purposes of ascribing a
value to the Compensation Debt (Performing Subsidiary) for the purposes of an Insolvency of
LGTDD or ensuring that the relevant Insolvency Official sends all Notices of Voting in
Insolvency in an Insolvency of LGTDD (or a copy of all such notices) to the Guarantee
Trustee.(b)
    
    Subject to clause 8.8, during the Insolvency of LGTDD the Guarantee Trustee must ensure that
an Attorney only votes on any matter in any meeting, proceeding or distribution concerning the
Insolvency of LGTDD in respect of the Compensation Debt (Performing Subsidiary) in accordance
with the instructions of the Financiers given in accordance with the Finance Guarantee
(LGTDD), provided that:




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(i)
    
    the Guarantee Trustee must ensure that an Attorney does not vote unless the
Guarantee Trustee has provided the NSW Government with 10 Business Days notice (or,
subject to clause 7.8.1(i), such shorter notice as the Guarantee Trustee determines is
reasonable having regard to the terms of the Notice of Voting in Insolvency) of the
Attorneys intention to vote and the Attorney votes in accordance with the intention
as notified; and(ii)
    
    if an Independent Expert has been appointed under clause 8.3, and the
Independent Expert has determined that, in its opinion, the criteria set out in:
 A.
    
    clauses 8.4(a), (b), (c) and, if applicable, (d); orB.
    
    clause 8.4(e),
  For the avoidance of doubt, the Guarantee Trustee must ensure that an Attorney votes in
accordance with the proviso to this clause 8.2(b) irrespective of any instructions of the
Financiers to the contrary given in accordance with the Finance Guarantee (LGTDD).(c)
    
    If following the occurrence of a Wind-Up Event in respect of LGTDD, the value of the assets
of LGTDD available for distribution to pay the claims of ordinary unsecured creditors (or
realisation to allow such payment), as determined or estimated (in the absence of manifest
error) by the relevant Insolvency Official (or otherwise determined or estimated for the
purposes of the relevant Insolvency proceeding in accordance with applicable law) is equal to
or less than the amount required to enable discharge and satisfaction of the Finance Money
Debt (Performing Subsidiary) in full, then, subject to clauses 8.8 and 8.9, during the Wind-Up
Event an Attorney may vote on any matter in any meeting, proceeding or distribution concerning
the Wind-Up Event in respect of the Compensation Debt (Performing Subsidiary) in accordance
with the instructions of the Financiers given in accordance with the Finance Guarantee (LGTDD)
and clauses 8.2(b), 8.3 to 8.7 inclusive and 8.10 do not apply.




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8.3 Appointment of an Independent Expert
 (a)
    
    If during the Insolvency of LGTDD:
 (i)
    
    the Guarantee Trustee or an Attorney receives a Notice of Voting in
Insolvency (or a copy of a Notice of Voting in Insolvency); and(ii)
    
    a vote on any matter in any meeting, proceeding or distribution concerning
the Insolvency of LGTDD requires a choice between:
 A.
    
    two or more options, proposals, courses of action or other
alternatives (howsoever described) ( Options) for the partial or
full winding up, restructure or reconstruction of LGTDD or the realisation of
some or all of LGTDDs assets in connection with its Insolvency;B.
    
    deferring or not deferring any action; orC.
    
    extending or not extending the Insolvency proceeding,
 then the Guarantee Trustee must promptly provide the NSW Government with a copy of the
Notice of Voting in Insolvency and procure the appointment of an Independent Expert in
accordance with this clause 8.3, such appointment to be made within 10 Business Days of
receipt by the Guarantee Trustee of the Notice of Voting in Insolvency (unless the NSW
Government gives notice that it does not so require).(b)
    
    The Guarantee Trustee must, prior to any appointment of an Independent Expert under this
deed, provide the NSW Government with 5 Business Days notice (or, subject to clause 7.8.1(i),
such shorter notice as the Guarantee Trustee determines is reasonable having regard to the
terms of the Notice of Voting in Insolvency) of the Person nominated by the Guarantee Trustee
to act as Independent Expert, together with evidence demonstrating such nominees compliance
with the criteria and qualifications required of an Independent Expert under this deed.(c)
    
    If an Independent Expert is appointed under this clause 8.3, the costs of the Independent
Expert shall be borne by the NSW Government.




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(d)
    
    Subject to clause 8.3(e), upon receipt of a Notice of Voting in Insolvency and at any time
prior to 2 Business Days before the latest date on which the Independent Expert must make a
determination in accordance with clauses 8.4 and 8.5 (or, subject to clause 7.8.1(i), such
earlier time as the Guarantee Trustee determines is reasonable having regard to the terms of
the Notice of Voting in Insolvency and advises the Fund Trustee and the NSW Government), the
NSW Government may nominate:
 (i)
    
    an Option which it would like an Attorney to vote for in respect of the
Compensation Debt (Performing Subsidiary); or(ii)
    
    if the vote relates to deferring or not deferring any action or extending or
not extending the Insolvency proceeding, which alternative it would like the Attorney
to vote for in respect of the Compensation Debt (Performing Subsidiary).
 (e)
    
    If an Independent Expert appointed under this clause 8 determines that an Option, other than
the Option nominated by the NSW Government under clause 8.3(d)(i), satisfies the criteria set
out in:
 (i)
    
    clauses 8.4(a), (b), (c) and if applicable, (d); or(ii)
    
    clause 8.4(e),
 then the NSW Government may immediately, with notice in writing to the Guarantee Trustee,
nominate the Option so determined by the Independent Expert as the Option that it would
like an Attorney to vote for in respect of the Compensation Debt (Performing Subsidiary).(f)
    
    For the purposes of this clause 8, Preferred Optionmeans:
 (i)
    
    subject to clause 8.3(f)(ii), the Option nominated by the NSW Government
under clause 8.3(d)(i); or(ii)
    
    if the circumstances in clause 8.3(e) apply, the Option nominated by the NSW
Government under clause 8.3(e); or(iii)
    
    if the circumstances in clause 8.3(g) apply, the Option nominated by the NSW
Government under clause 8.3(g); or




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(iv)
    
    if the NSW Government has not nominated an Option in accordance with clause
8.3(d)(i) or 8.3(e), the Preferred Option is deemed to be the Option which the
Independent Expert determines satisfies the criteria set out in:
 A.
    
    clauses 8.4(a), (b), (c) and, if applicable, (d); orB.
    
    clause 8.4(e),
  (g)
    
    If the Independent Expert determines that there are two or more Options which satisfy the
criteria set out in clause 8.2(b)(ii), the NSW Government may notify the Guarantee Trustee in
writing which Option it wishes to nominate as the Preferred Option.
 8.4 Role of the Independent Expert
  (a)
    
    whether, one or more Options (if approved and implemented in the manner described in the
Notice of Voting in Insolvency) are likely to result in the recovery by the Guarantee Trustee
of an amount in respect of the Finance Money Debt (Performing Subsidiary) which would be
sufficient (taking into account prior ranking claims, the likely or anticipated distribution
to Financiers by the Insolvency Official and any likely payment to the Guarantee Trustee under
clause 4) to discharge and satisfy the Finance Money Debt (Performing Subsidiary) in full;(b)
    
    whether one or more of the Options which satisfy the requirements of paragraph (a) (if
approved and implemented in the manner described in the Notice of Voting in Insolvency) are
likely to result in the recovery by the Guarantee




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Trustee in respect of the Finance Money Debt (Performing Subsidiary) of an amount:
 (i)
    
    which would be at least 5% greater than the amount which the Guarantee
Trustee would be likely to recover in respect of the Finance Money Debt (Performing
Subsidiary) under any other Option, after allowing for the time value of money; and(ii)
    
    which would discharge and satisfy the Finance Money Debt (Performing
Subsidiary) in full by a date no later than 12 months after the earliest date by which
any of the other Options would achieve full discharge and satisfaction of the Finance
Money Debt (Performing Subsidiary); and
 (c)
    
    whether the conditions (if any) attached to one or more of the Options which satisfy the
requirements of paragraph (a) (as described in the Notice of Voting in Insolvency) do not
involve a materially greater risk of non-recovery, or delay in recovery of more than 12
months, by the Guarantee Trustee of an amount which would be sufficient (taking into account
prior ranking claims, the likely or anticipated distribution to the Financiers by the
Insolvency Official and any likely payment to the Guarantee Trust under clause 4) to discharge
and satisfy the Finance Money Debt (Performing Subsidiary) in full, compared to the risks of
non-recovery, or delay in recovery of more than 12 months, associated with the other Options
(taking into account the conditions (if any) attached to those other Options (as described in
the Notice of Voting in Insolvency)); and(d)
    
    if one of more of the Options which satisfy the requirements of paragraph (a) (if approved
and implemented in the manner described in the Notice of Voting in Insolvency) are each likely
to result in the recovery by the Guarantee Trustee of an amount sufficient to discharge and
satisfy the Finance Money Debt (Performing Subsidiary) in full within substantially the same
period of time (taking into account prior ranking claims, the likely or anticipated
distribution to the Financiers by the Insolvency Official and any likely payment to the
Guarantee Trust under clause 4), which Option would result in the amounts anticipated to be
received by, or on behalf of, the Fund in respect of the Compensation Debt (Performing
Subsidiary) having a higher net present value than the other Options having regard (among any
other relevant factors) to any potential future payment by LGTDD, JHINV or a James Hardie
Successor (under an agreement similar in its effect to the Final Funding Agreement) in respect
of part or all of the Compensation Debt (Performing Subsidiary); and




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(e)
    
    if the vote relates to deferring or not deferring any action or extending or not extending
the Insolvency proceeding, which choice is likely to result in:
 (i)
    
    a greater net recovery in respect of the Finance Money Debt (Performing
Subsidiary) (taking into account prior ranking claims, the likely or anticipated
distribution to the Financiers by the Insolvency Official and any likely payment to
the Guarantee Trust under clause 4); or(ii)
    
    if either choice would result in the recovery by the Guarantee Trustee of an
amount sufficient to discharge and satisfy the Finance Money Debt (Performing
Subsidiary) in full (taking into account prior ranking claims, the likely or
anticipated distribution to the Financiers by the Insolvency Official and any likely
payment to the Guarantee Trust under clause 4), a greater net recovery in respect of
the Compensation Debt (Performing Subsidiary) (taking into account prior ranking
claims, the likely or anticipated distribution to the Financiers by the Insolvency
Official and any likely payment to the Guarantee Trust under clause 4) within the next
12 months.
 8.5 Notice of determination by the Independent Expert
  8.6 Assistance to the Independent Expert
  8.7 Determination by the Independent Expert final




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8.8 Consent of NSW Government required in certain circumstances
 (a)
    
    Subject to clauses 8.9 and 8.10, but otherwise notwithstanding any other provision of
clauses 8.2 to 8.7 inclusive, the Guarantee Trustee must ensure that an Attorney does not,
without the prior written consent of the NSW Government, vote in respect of the Specified
Proportion of the Compensation Debt (Performing Subsidiary) in favour of any arrangement,
assignment, reconstruction, composition, option, proposal or other course of action proposed
in connection with LGTDDs Insolvency which, if approved and implemented, would result in the
extinguishment of any part of the Compensation Debt (Performing Subsidiary (other than by
payment in full or upon the final dissolution or winding up of JHINV in circumstances where
there will be an insufficiency of assets to enable payment of any part of the Compensation
Debt (Performing Subsidiary) taking into account prior ranking claims, the distribution to the
Financiers by the Insolvency Official and payments to the Guarantee Trust under clause 4). An
Attorney may vote the balance of the Compensation Debt (Performing Subsidiary) in accordance
with the instructions of the Financiers given in accordance with the Finance Guarantee (LGTDD)
(or, in the absence of such instructions, as the Guarantee Trustee directs).(b)
    
    Where there are two or more Options, the Guarantee Trustee must appoint and obtain advice
from an Independent Expert in accordance with clauses 8.3 and 8.4 and, provided that the
Independent Expert has had due regard to the matters specified in clause 8.4, the Guarantee
Trustee must, subject to clauses 8.2(c), 8.9 and 8.10, ensure that an Attorney votes the
Specified Proportion of the Compensation Debt (Performing Subsidiary) in favour of the
Preferred Option. An Attorney may vote the balance of the Compensation Debt (Performing
Subsidiary) in accordance with the instructions of the Financiers given in accordance with the
Finance Guarantee (LGTDD).
 8.9 Defaulting or absent Guarantee Trustee
  (a)
    
    a court of competent jurisdiction has determined that the Guarantee Trustee is in breach of,
or default under, this deed; or(b)
    
    there is no Person acting as trustee under the Finance Guarantee (LGTDD),




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8.10 Residual Power
  9. CHANGES TO RIGHTS
 9.1 Rights of the Financiers are protected
 (a)
    
    Rights given to or for the benefit of the Financiers under this deed, and the
obligations of each Compensation Party and the NSW Government under it, are not affected by
any act or omission by a Compensation Party, the NSW Government, the Guarantee Trustee, any
Financier or any other Person or by any other act, other matter or thing whatsoever, whether
negligent or not, except as agreed to in writing by the Guarantee Trustee. For example, those
rights and liabilities are not affected by:
 (i)
    
    any act or omission:
 A.
    
    varying or replacing any arrangement under which any
Finance Money Debt (Performing Subsidiary) or Compensation Debt (Performing
Subsidiary) is expressed to be owing, such as by increasing a facility limit
or extending the term;B.
    
    releasing or discharging LGTDD or any Security Provider
(including discharge by operation of law) or giving them a concession (such
as more time to pay);C.
    
    releasing any Person who gives a guarantee or indemnity in
connection with any of LGTDDs obligations;




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D.
    
    releasing, losing the benefit of, or not obtaining any
Security Interest or negotiable instrument;E.
    
    by which the obligations of a Compensation Party, the NSW
Government, LGTDD or any Security Provider may not be enforceable;F.
    
    by which any Person who was intended to guarantee or
provide a Security Interest securing all or part of the Finance Money Debt
(Performing Subsidiary) does not do so, or does not do so effectively;G.
    
    by which a Compensation Party or the NSW Government is
discharged from its obligations to the Financiers by operation of law;H.
    
    by which any Security Interest which could be registered is
not registered; orI.
    
    any other thing causing any prejudice (including material
prejudice);
 (ii)
    
    a Person dealing in any way with a Security Interest, guarantee, indemnity,
judgment or negotiable instrument;(iii)
    
    the death, mental or physical disability, incapacity, Insolvency or any
legal limitation of any Person including LGTDD, a Compensation Party or the NSW
Government;(iv)
    
    changes in the membership, name or business of any Person;(v)
    
    LGTDD opening an account with any Financier;(vi)
    
    acquiescence or delay by any Financier or any other Person;(vii)
    
    an assignment of rights or a novation in connection with all or part of the
Finance Money Debt (Performing Subsidiary) or the Compensation Debt (Performing
Subsidiary);




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(viii)
    
    the acceptance of the repudiation of, or termination of, any Finance Document or any
other document or agreement; or(ix)
    
    any payment to a Financier, including any payment which at the payment date
or at any time after the payment date is, in whole or part, illegal, void, voidable,
avoided or unenforceable.
 This clause applies regardless of whether LGTDD, a Compensation Party or the NSW Government
is aware of, has consented to or is given notice of any act, omission, matter or thing
referred to in this clause. This clause does not limit the obligations of a Compensation
Party or the NSW Government under this deed.(b)
    
    Subject to this deed, the Financiers may act freely in their interests in relation to any
matter concerning the Finance Money Debt (Performing Subsidiary) without regard to the
interests of a Compensation Party or the NSW Government or the terms of the Compensation Debt
(Performing Subsidiary) and without incurring any liability to a Compensation Party or the NSW
Government.
 9.2 Payments
  (a)
    
    to, or as directed by, the Guarantee Trustee;(b)
    
    in full without set off or counterclaim, and without any deduction in respect of Taxes unless
prohibited by law; and(c)
    
    in the currency in which it receives or recovers payment in respect of the Compensation Debt
(Performing Subsidiary).
 9.3 Reinstatement of rights




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9.4 Set-off
  9.5 Discretion in exercising rights
  9.6 Partial exercising of rights
  9.7 Remedies cumulative
  9.8 Variation and waiver




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10. INCONSISTENT LAW
 10.1 Inconsistent law
  10.2 Supervening legislation
  11. NOTICES
 (a)
    
    A notice, approval, consent, nomination or other communication (including a Financier
Nomination Letter) ( Communication) to a Person relating to this deed:
 (i)
    
    must state that it relates to this deed and state the relevant clause in this
deed;(ii)
    
    must be signed by an Authorised Officer;(iii)
    
    must be in legible writing; and(iv)
    
    must be in English.
 (b)
    
    Communications must be addressed as follows:




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Name:
 Attention:
 Address:
 Facsimile:
   Name:
 Attention:
 Address:
 Facsimile:
    Name:
 Attention:
 Address:
 Facsimile:




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unless the Guarantee Trustee has notified the other parties of new contact details,
in which case the Communication must be addressed in the manner last notified by the
Guarantee Trustee.If the Communication is to a Financier then it must be addressed as specified in the
relevant Financier Nomination Letter, unless the Financier has subsequently notified the
other parties of new contact details, in which case the Communication must be addressed in
the manner last notified by the Financier.If the Communication is to a Replacement Trustee or a New Guarantee Trustee then it must be
addressed as specified in the relevant Accession Deed, unless the Replacement Trustee or
New Guarantee Trustee has subsequently notified the other parties of new contact details,
in which case the Communication must be addressed in the manner last notified by the
Replacement Trustee or New Guarantee Trustee.(c)
    
    If the Communication is sent by the sender it shall be deemed to be received by the receiver:
 (i)
    
    if the Communication is hand delivered, upon delivery to the receiving party;(ii)
    
    if the Communication is sent by facsimile, upon the successful completion of
the relevant transmission;(iii)
    
    if the Communication is sent by registered mail within Australia, 2 business
days after the registration of the notice of posting; and(iv)
    
    if the Communication is sent by ordinary mail within Australia, 3 business
days from then including the date of postage,
 provided that where a notice to a party must be copied to another Person, each such notice
will only be given at the time the last notice is received.(d)
    
    For the avoidance of doubt, a Communication shall not be sent by electronic email.




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12. GOVERNING LAW AND JURISDICTION
 12.1 Governing law
  12.2 Submission to jurisdiction
  12.3 Service
 (a)
    
    A document may be served on a party or a Financier by delivering it to that party at its
address in clause 11.(b)
    
    This clause 12.3 does not prevent another mode of service.
 13. COUNTERPARTS
  14. GENERAL
 14.1 Severability
 (a)
    
    If a provision of this deed is invalid, illegal or unenforceable, then that provision to
the extent of the invalidity, illegality or unenforceability must be ignored in the
interpretation of this deed.(b)
    
    All the other provisions of this deed remain in full force and effect.
 14.2 No waiver
 (a)
    
    A partys agreement to waive a right or entitlement under this deed is only effective if
that party gives written notice of that waiver to the party seeking the benefit of the waiver.




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(b)
    
    Waiver by a party of anything required to be done under this deed is not a waiver of any
other thing required to be done under this deed.(c)
    
    Paragraph (b) applies whether the other act or thing required to be done under this deed is
of the same or a different nature as the act or thing waived.(d)
    
    A failure or delay in exercising a right arising from a breach of this deed is not a waiver
of that right.(e)
    
    The parties must not waive this clause 14.
 14.3 Further assurances
  14.4 Entire agreement
 (a)
    
    This deed embodies the entire agreement between the Fund Trustee and the NSW Government
on the one part, and the Guarantee Trustee and the Financiers on the other part.(b)
    
    This deed supersedes all previous agreements.
 14.5 Cumulative rights
  (a)
    
    is cumulative; and(b)
    
    does not diminish any other right, power, discretion and remedy of any party or a Financier.
 14.6 Certificates




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##### 



14.7 Amendment of this deed
  14.8 Confidentiality
 Representative
  (a)
    
    the partys related bodies corporate, professional advisors, bankers, financial advisors and
financiers, if those persons undertake to keep the information disclosed confidential;(b)
    
    comply with any applicable law or requirement of any regulatory body (including any relevant
stock exchange) and any corporate governance guidelines adopted by such bodies which are
adopted by such party;(c)
    
    any of its employees to whom it is necessary to disclose the information, if that employee
undertakes to keep the information confidential;(d)
    
    any Person as permitted by the written agreement of all parties; or(e)
    
    any Person if the content of the disclosure is or has become generally available to the
public otherwise than by breach of this deed.
 15. GUARANTEE TRUSTEE LIMITATION OF LIABILITY
 To be provided by the Guarantee Trustee




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Executed
  Signed, sealed and delivered The Honourable Morris Iemma MP
 Premier of New South Wales
  
 Signed, sealed and delivered Asbestos Injuries Compensation Fund Trustee
Limited Asbestos Injuries (JH) Compensation
Foundation
 [Insert name]
    

[Insert
name][Insert Capacity]
    
    [Insert
Capacity]Signed, sealed and deliveredby LGTDD Pty Limited[Insert name]
    
    [Insert
name][Insert Capacity]
    
    [Insert
Capacity]Signed, sealed and
deliveredby [Guarantee Trustee]




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##### 



[Insert name]
    
    [Insert
name][Insert Capacity]
    
    [Insert
Capacity]




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##### 



SCHEDULE 1
 FINANCIER NOMINATION LETTER
 Date
 Financier
 Performing Subsidiary Intercreditor Deed  Financier Nomination Letter
 insert name Guarantee Trustee insert date Performing Subsidiary Intercreditor
Deed
   insert details
 insert details
 insert details
    Interpretation Governing law and Jurisdiction




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Endorsement by the Guarantee Trustee:
   INSERT NAME OF GUARANTEE TRUSTEE
    Acceptance by the nominated Financier
    (a)
    
    affect the status or ranking of the Compensation Debt (Performing Subsidiary) as an ordinary
unsecured claim again LGTDD;




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##### 



(b)
    
    affect the status or ranking of the Compensation Debt (Performing Subsidiary) as against the
other debts (including the Finance Money (Performing Subsidiary)) or the other creditors of
LGTDD (including the Financiers).
  (i)
    
    be bound by the terms of that deed;(ii)
    
    promptly respond to any requests from the Guarantee Trustee for (A) instructions as to the
manner in which the Guarantee Trustee should exercise any of its rights or benefits under the
Performing Subsidiary Intercreditor Deed, or (B) any consent required from the Financiers (and
agree not to unreasonably withhold or delay such consent); and(iii)
    
    agree that if we fail to promptly so respond, the Guarantee Trustee may exercise such rights
or benefits in accordance with the instructions of the requisite majority of the Financiers
who do so respond in accordance with the Finance Guarantee (LGTDD).
  Insert name of Financier




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##### 



SCHEDULE 2
 ACCESSION DEED
 Date
 Existing parties to the Performing Subsidiary Intercreditor Deed
 Performing
Subsidiary Intercreditor Deed  Accession as [Replacement Trustee /
New Guarantee Trustee]
 insert name Guarantee Trustee insert date Performing Subsidiary
Intercreditor Deed
   Interpretation Governing law and Jurisdiction




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##### 



SCHEDULE 3
 FORM OF POWER OF ATTORNEY
 Appointer:
    
    [Asbestos Injuries Compensation Fund Trustee
Limited in its capacity as trustee for the Asbestos
Injuries (JH) Compensation Foundation] / [[name of
replacement trustee] as replacement trustee of the
Asbestos Injuries (JH) Compensation Foundation] / [name of
New Person] as [successor] to [Asbestos Injuries
Compensation Fund Trustee Limited] / [name of replacement
trustee] in its capacity as trustee for the Asbestos
Injuries (JH) Compensation Foundation] ([ABN]) of [address
of Appointer]Attorney:
    
    [name of Guarantee Trustee] ([ABN])
( Guarantee Trustee ) of [address of Guarantee
Trustee] and each Authorised Officer of the Guarantee
Trustee from time to time individuallyDate:
    
    [date of power of attorney]
 1. APPOINTMENT
  2. WHAT THE APPOINTER MAY DO
  (a)
    
    exercise the right to cast all and any votes attaching to, or to be cast in respect of, the
Compensation Debt (Performing Subsidiary) during the Insolvency of LGTDD at, or in connection
with, any meeting, proceeding or distribution concerning the Insolvency of LGTDD for so long
as any Finance Money Debt (Performing Subsidiary) remains outstanding and to the exclusion of
the right of the Appointor to exercise all of any such votes for so long as any Finance Money
Debt (Performing Subsidiary) remains outstanding;(b)
    
    do anything necessary or incidental to such exercise including, without limitation, signing
and delivering documents;




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##### 



(c)
    
    provide an original or copy of this power of attorney to an Insolvency Official for the
purpose of establishing the right and entitlement of the Attorney during the Insolvency of
LGTDD to exercise the right to cast all and any votes attaching to, or to be cast in respect
of, the Compensation Debt (Performing Subsidiary) during the Insolvency of LGTDD at, or in
connection with, any meeting, proceeding or distribution concerning the Insolvency of LGTDD;
and(d)
    
    do anything which in the Attorneys opinion is necessary or desirable to ensure the validity
and enforceability of this power of attorney under any applicable law (including, without
limitation, stamping or registering this power of attorney or filing this power of attorney
with any government authority).
  3. GENERAL
 3.1 Attorneys acts valid
  3.2 Benefit to the Attorney
  (a)
    
    it involves a conflict of duty; or(b)
    
    the Attorney has a personal interest in the doing of that act.
 3.3 Governing law




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##### 



4. COMPLIANCE WITH PERFORMING SUBSIDIARY INTERCREDITOR DEED
  5. INTERPRETATION
  Authorised Officer
 Compensation Debt (Performing Subsidiary)
 Finance Money Debt (Performing Subsidiary) has
 Insolvency
 Insolvency Official
 Performing
Subsidiary Intercreditor Deed insert name of Guarantee Trustee insert date
 LGTDD
 EXECUTED
 Signed, sealed and deliveredby [name of Appointer][name of signatory]
    
    [name of signatory]




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##### 



[capacity of signatory]
    
    [capacity of signatory]




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##### 



ATTACHMENT A
 DICTIONARY AND INTERPRETATION
 (CLAUSE 1)
 1. DICTIONARY
  Accession Deed
 Annual Payment
 Attorney
 Audited Financial Statements
 Authorised Officer
 (a)
    
    in the case of the Guarantee Trustee or a Financier, a director or secretary, or an officer
whose title contains the word director, chief, head, president, vice-president,
executive or manager or a Person performing the functions of any of them, or any other
Person nominated by the Guarantee Trustee or the Financier, as the case may be, as an
Authorised Officer for the purposes of this deed;(b)
    
    in the case of the Fund Trustee, a Person appointed by the Fund Trustee and notified to the
Guarantee Trustee and the Financiers as an Authorised Officer for the purposes of this deed,
and whose specimen signature is provided with such notification;(c)
    
    in the case of LGTDD, a director of LGTDD or a person appointed by LGTDD and notified to the
Fund Trustee, the NSW Government, the Guarantee Trustee




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




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Controlled Entity
 Cross Guarantee (Fund Guaranteed Money) Subsidiary Guarantor
 (a)
    
    in favour of the Fund Trustee in respect of the Compensation Debt (Performing Subsidiary);(b)
    
    on substantially the same terms as a guarantee or indemnity (or other covenant to secure the
satisfaction of any payment or obligation) given by the Subsidiary Guarantor in respect of
financial accommodation provided by a Person to another member of the LGTDD Group;(c)
    
    which terminates when the guarantee, indemnity or other covenant referred to in paragraph (b)
terminates whether by express provision or by operation of law,
  Excluded Lender
 (a)
    
    is a trade creditor;(b)
    
    has provided any debt on terms that it is to be subordinated to the Compensation Debt
(Performing Subsidiary);(c)
    
    has provided any debt or other borrowing which arises pursuant to a derivative:
 (i)
    
    relating to equity interests in a member of the LGTDD Group; or(ii)
    
    which is recognised as equity under applicable accounting standards;
 (d)
    
    is a member of the LGTDD Group;




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




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##### 



(a)
    
    if any Financier (for its own account or for the account of another Person) or the Guarantee
Trustee (for the account of a Financier):
 (i)
    
    fails to lodge a proof of debt (or similar claim) in an Insolvency of LGTDD
within the time provided for under applicable law (as such time may be extended by a
relevant Insolvency Official); or(ii)
    
    lodges a proof of debt (or similar claim) in an Insolvency of LGTDD and such
proof of debt has not been accepted in whole or part by the relevant Insolvency
Official (and such decision is not subject to appeal to, or review by, that Insolvency
Official or another relevant Insolvency Official and the time for commencing any such
appeal, or requesting any such review, has passed),
 such amount shall be deemed to be zero or, in the case of subparagraph (ii), such amount
shall be deemed to be reduced to the extent that it is not accepted by the relevant
Insolvency Official;(b)
    
    if interest is payable on such amount under applicable law, the Finance Money Debt
(Performing Subsidiary) also includes such interest as is payable under applicable law
(including all interest accruing on or subsequent to the filing of a petition initiating any
proceeding in bankruptcy or insolvency or any like proceeding whether or not such interest is
an allowed claim in such proceeding);(c)
    
    if a Financier enters into, or is otherwise bound by, any conversion of debt to equity (which
is not also a distribution subject to paragraph (d) below), then Finance Money Debt
(Performing Subsidiary) shall be deemed to be reduced by
the full amount of the face value of the debt (and any applicable interest) so converted;(d)
    
    if a Financier receives any money or other property or any other right pursuant to a
Reconstruction Event, then Finance Money Debt (Performing Subsidiary) (and




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##### 



any applicable
interest) shall be deemed to be reduced by the full amount of the fair market value of the
money, property or right acquired as at the date of receipt; or(e)
    
    if any amount is received or due from a Person in respect of the Insolvency of JHINV or by
operation of the JHINV Intercreditor Deed and the amount so received or due is in whole or
part Finance Money Debt (as that term is defined in the JHINV Intercreditor Deed), then the
Finance Money Debt (Performing Subsidiary) shall be deemed to be reduced by that amount.
  (i)
    
    irrespective of the capacity in which LGTDD, the other member of the LGTDD
Group or the Financier became entitled to the amount concerned;(ii)
    
    irrespective of the capacity in which LGTDD, the other member of the LGTDD
Group or the Financier became liable in respect of the amount concerned;(iii)
    
    whether LGTDD, the other member of the LGTDD Group or the Financier is
liable as principal debtor, as surety or otherwise;(iv)
    
    whether LGTDD or other member of the LGTDD Group is liable alone, or together
with another Person;(v)
    
    even if LGTDD or another member of the LGTDD Group owes an amount or
obligation to the Financier because it was assigned to the Financier, whether or not:
 A.
    
    the assignment was before, at the same time as, or after
the date of this deed; orB.
    
    LGTDD or another member of the LGTDD Group consented to or
was aware of the assignment; orC.
    
    the assigned obligation was secured;
 (vi)
    
    even if this deed was assigned to the Financier, whether or not:




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##### 



A.
    
    LGTDD or another member of the LGTDD Group consented to or
was aware of the assignment; orB.
    
    any of the Finance Money Debt (Performing Subsidiary) was
previously unsecured; or
 (vii)
    
    if LGTDD or another member of the LGTDD Group is a trustee, whether or not
it has a right of indemnity from the trust fund.
 Financial Year
 Financier
 Financier Nomination Letter
 Fund Trustee
 Guarantee Trustee insert name
 Heads of Agreement
 Independent Expert




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##### 



(a)
    
    has relevant and substantive experience and expertise in Insolvency and, if applicable,
financial restructuring appropriate to undertake the determination referred to in clause 8;(b)
    
    except to the extent he or she is entitled to be paid fees or reimbursed or indemnified for
costs and expenses by the NSW Government in accordance with this deed, has no interest or duty
which to his or her knowledge conflicts or may conflict with his or her functions as
contemplated under this deed; and(c)
    
    is not a member of a firm, or a director or employee of a firm or a body owned by the firm,
performing any role as advisor, banker, custodian or trustee to the JHINV Group or (except for
roles undertaken in the ordinary course of business for state owned business enterprises) the
NSW Government during a period of 3 years prior to the date of appointment under clause 8.
 Insolvency Event
 Insolvency Official
 Insolvent
 (d)
    
    admits in writing its inability to pay its debts generally as they become due (otherwise then
as contemplated in clause 16.6 of the Final Funding Agreement);(e)
    
    was established under Dutch law and files a petition with any court in the Netherlands in
relation to its bankruptcy (faillissement) or seeking an order for a suspension of payments
(surseance van betaling);(f)
    
    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




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##### 



(ii)
    
    in the case of JHINV, after it makes such a filing, fails to pay a JHINV
Contribution or other amount under the JHINV Guarantee when such payment would (but
for the moratorium granted as a result of that filing) have been due for 30 days after
that due date,
 and also provided that, in any such filing under Chapter 11 of that Code a Person is
Insolvent no later than the earliest date as of which creditors may vote on any matter or
accept or reject a plan of reorganisation;(g)
    
    makes an assignment for the benefit of its creditors generally;(h)
    
    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;(i)
    
    consents to the appointment of an insolvency administrator or such an insolvency
administrator is appointed and that appointment is not terminated within 28 days;(j)
    
    is adjudicated as insolvent or to be liquidated, in each case, by a court of competent
jurisdiction; or(k)
    
    is subject to a Wind-Up Event,
 Insolvency
 James Hardie Successor
 JHIL
 JHINV
 JHINV Group




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##### 



JHINV Intercreditor Deed insert
name of Guarantee Trustee insert date
 LGTDD
 LGTDD Group
 Liquidation Net Finance Money Debt (Performing Subsidiary)
 New Guarantee Trustee
 New Person
 Notice of Voting in Insolvency
 Option
 Parent Entity
 Person
 Preferred Option




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##### 



Proceeds
 (a)
    
    any amount (in the form of money or any other property) received or recovered by a
Compensation Party in respect of the Compensation Debt (Performing Subsidiary) during an
Insolvency of LGTDD;(b)
    
    any amount (in the form of money or any other property) received or recovered by a
Compensation Party in connection with the failure by any of them or LGTDD to comply with their
respective obligations under this deed.
 Reconstruction Event
 (a)
    
    the summoning of a meeting of creditors or the obtaining of an order of a court to do so for
the purpose of considering any scheme or plan of arrangement for reconstruction or compromise
with creditors;(b)
    
    a final order for relief under Chapter 11 of the US Bankruptcy Code is entered by a US court;(c)
    
    a filing by JHINV for a suspension of payments under Dutch law, provided that the Court
grants the (provisional) suspension of payments to JHINV;(d)
    
    any comparable action under the laws of any other jurisdiction occurs having substantially
the same effect as the orders described in paragraphs (b) and (c),
  Related Agreement
 Replacement Trustee




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##### 



Residual Rights
 Security Interest
 (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
 Specified Office
 Specified Proportion
 (a)
    
    if in the Insolvency of LGTDD, the votes relating to the Compensation Debt (Performing
Subsidiary) can be proportionately cast in favour of different courses of action:
 A.
    
    100 per cent of the amount of the Compensation Debt (Performing Subsidiary),
  B.
    
    such percentage of the Compensation Debt (Performing Subsidiary), which when
added to all Finance Money Debt (Performing Subsidiary) owed by LGTDD, represents the
amount reasonably expected at that time




---



##### 



(having regard to the value of the assets of
LGTDD available for distribution to pay the claims of ordinary unsecured creditors as
estimated by the Insolvency Official (or otherwise determined or estimated for the
purposes of the relevant Insolvency proceeding in accordance with applicable law) and
taking into account prior ranking claims, the likely or anticipated distribution to
the Financiers by the Insolvency Official and any likely payment to the Guarantee
Trust under clause 4) would be required to enable discharge and satisfaction of the
Finance Money Debt (Performing Subsidiary) in full; or
 (b)
    
    if in the Insolvency of LGTDD, the votes relating to the Compensation Debt (Performing
Subsidiary) cannot be proportionately cast in favour of different courses of action, 100 per
cent of the amount of the Compensation Debt (Performing Subsidiary).
 Wind-Up Event
 (a)
    
    a final court order is entered that it be wound up or declared bankrupt;(b)
    
    a liquidator (excluding a provisional liquidator) is appointed to it and the appointment is
not subsequently terminated;(c)
    
    a court declaration of bankruptcy is made in relation to it and is not subsequently
withdrawn, struck out, dismissed, vacated or reversed;(d)
    
    the dissolution of such Person under Dutch law (ontbinding) or the law of any other
jurisdiction;(e)
    
    the declaration of its bankruptcy under Dutch law (faillissement);(f)
    
    the Liquidation of that Person;(g)
    
    a final order for relief occurs or is deemed to occur in relation to it under Chapter 7 or
Chapter 11 of the US Bankruptcy Code which, when implemented, will result in the Liquidation
of that Person; and(h)
    
    any comparable action occurs under the law of any competent jurisdiction which has a
substantially the same effect to paragraphs (a) to (g) of this definition,




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2. INTERPRETATION
  (a)
    
    Headings are for convenience only and do not affect the interpretation of this deed.(b)
    
    The singular includes the plural and vice versa.(c)
    
    Words that are gender neutral or gender specific include each gender.(d)
    
    Where a word or phrase is given a particular meaning, other parts of speech and grammatical
forms of that word or phrase have corresponding meanings.(e)
    
    The words such as, including, particularly and similar expressions are not used as nor
are intended to be interpreted as words of limitation.(f)
    
    A reference to:
 (i)
    
    a thing (including but not limited to a chose in action or other right)
includes a part of that thing;(ii)
    
    a party or a Financier includes its successors and permitted assigns;(iii)
    
    a document includes all amendments or supplements to that document;(iv)
    
    a clause, term, party, schedule or attachment is a reference to a clause or
term of, or party, schedule or attachment to this deed;(v)
    
    this deed includes all schedules and attachments to it;(vi)
    
    a law includes a constitutional provision, treaty, decree, convention,
statute, regulation, ordinance, by-law, judgment, rule of common law or equity or a
rule of an applicable Financial Market and is a reference to that law as amended,
consolidated or replaced;




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(vii)
    
    an agreement other than this deed includes an undertaking, or legally
enforceable arrangement or understanding whether or not in writing; and(viii)
    
    a monetary amount is in Australian dollars.
 (g)
    
    An agreement on the part of two or more persons binds them severally.(h)
    
    When the day on which something must be done is not a Business Day, that thing must be done
on the following Business Day.(i)
    
    In determining the time of day where relevant to this deed, the relevant time of day is:
 (i)
    
    for the purposes of giving or receiving notices, the time of day where a
party receiving a notice is located; or(ii)
    
    for any other purpose under this deed, the time of day in the place where the
party required to perform an obligation is located.
 (j)
    
    No rule of construction applies to the disadvantage of a party because that party was
responsible for the preparation of this deed or any part of it.




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##### 



Annexure 8  KPMG Waiver of Conflict Letter
 [On JHINVs letterhead]
      Appointment of KPMG as Approved Actuaries to the Fund
 KPMG Actuaries JHINV
  (a)
    
    KPMG Actuaries was retained to provide a central estimate of the Australian asbestos-related
personal injury and death liabilities of the subsidiaries of the Medical Research and
Compensation Foundation (MRCF) as at 30 June 2003; and(b)
    
    KPMG Actuaries was retained during the negotiations of the non-binding heads of agreement
entered into on 21 December 2004 between JHINV, the New South Wales Government (NSWG), the
ACTU, Unions NSW and Bernie Banton (Heads of Agreement) to provide an updated central estimate
of those liabilities as at 30 June 2004, and to provide a further updated central estimate of
liabilities as at 30 June 2005 (Initial Report), as part of the agreed actuarial procedures
set out in a Deed entitled A deed for a Final Funding Agreement between, initially the NSWG,
JHINV, and the Performing Subsidiary dated on or about the date of this letter (Principal
Deed).
 Fund




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##### 



164

Approved Actuary
  (a)
    
    irrevocably waives and releases KPMG Actuaries from any actual or potential conflict of
interest which might otherwise have prevented KPMG Actuaries from being engaged as or
performing the role of Approved Actuary;(b)
    
    shall not raise any objection to KPMG Actuaries acting as the Approved Actuary in accordance
with the terms of the Principal Deed;(c)
    
    confirms that whilever KPMG Actuaries is the Approved Actuary, JHINV irrevocably consents to
KPMG Actuaries disclosing to the Fund all written advice relating to any matter in connection
with the Fund provided or to be provided by KPMG Actuaries to it prior to the appointment KPMG
Actuaries as the Approved Actuary to the Fund.
  (on behalf of the JHINV Group)




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##### 



Annexure 9  Irrevocable Power of Attorney
 
 IRREVOCABLE POWER OF
ATTORNEY
 ASBESTOS INJURIES
COMPENSATION FUND LIMITED
 THE STATE OF NEW SOUTH WALES




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##### 



CONTENTS1.
    
    PRELIMINARY
    
    
    12.
    
    APPOINTMENT
    
    
    13.
    
    CONSIDERATION
    
    
    14.
    
    POWERS
    
    
    25.
    
    VALIDITY OF ACTS AND RATIFICATION
    
    
    36.
    
    DECLARATION
    
    
    37.
    
    USE OF NAME
    
    
    38.
    
    AUTHORITY TO BENEFIT THIRD PARTIES
    
    
    39.
    
    APPOINTMENT IRREVOCABLE
    
    
    410.
    
    US ACKNOWLEDGMENT
    
    
    411.
    
    GOVERNING LAW
    
    
    412.
    
    NOTICES
    
    
    413.
    
    COUNTERPARTS
    
    
    4Attachment A  Dictionary and Interpretation
    
    
    1




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THIS IRREVOCABLE POWER OF ATTORNEY
 BETWEEN
 1.
    
    ASBESTOS INJURIES COMPENSATION FUND LIMITED ABN [                    ]of [                    ] as trustee of the Asbestos Injury Compensation Foundation (Appointor)2.
    
    THE STATE OF NEW SOUTH WALES(Attorney)
 THE PARTIES AGREE
 1.
    
    PRELIMINARY
 Defined Terms and Interpretation
 1.1
    
    A term or expression starting with a capital letter which is defined in the Dictionary
in Part 1 of Attachment A (Dictionary), has the meaning given to it in the
Dictionary.1.2
    
    The Interpretation clauses in Part 2 of Attachment A (Interpretation) set out rules of interpretation for this deed.2.
    
    APPOINTMENT
  3.
    
    CONSIDERATION




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##### 



4.
    
    POWERS4.1
    
    Scope
   (a)
    
    subject to clause 10 of the Final Funding Agreement, vote and prove, on behalf of the
Appointor, the Wind-Up or Reconstruction Amount or any debt owing to the Appointer under
clause 6, 9, 10, 15.1 and 15.7 of the Final Funding Agreement and any Related Agreement and
make application to any court of competent jurisdiction in relation to any Reconstruction
Event or Insolvency Event of JHINV;(b)
    
    subject to clause 10 of the Final Funding Agreement be present and vote at any meeting
relating to any Reconstruction Event or, subject to the Intercreditor Deed, any Insolvency
Event of JHINV, or any other meeting of creditors of JHNIV where the obligation owed to the
Appointor arises under clause 6, 9, 10, 15.1 or 15.7 of the Final Funding Agreement or any
Related Agreement;(c)
    
    individually make submissions to an Insolvency Official or any court having jurisdiction in
connection with any Reconstruction Event or an Insolvency Event of JHINV; and(d)
    
    do anything which in the Attorneys opinion is necessary or desirable to ensure the validity
and enforceability of this power of attorney under any applicable law (including without
limitation, stamping or registering this power of attorney or filing this power of attorney
with any government authority).




---



##### 



4.2
    
    Exercise(a)
    
    The foregoing powers of enforcement are subject to clause 16.6 of the Final Funding
Agreement.(b)
    
    This power of attorney automatically terminates in the event of the termination of the Final
Funding Agreement.5.
    
    VALIDITY OF ACTS AND RATIFICATION
  (a)
    
    declares that everything done by the Attorney in exercising powers under this power of
attorney is as valid as if it had been done by the Appointor; and(b)
    
    agrees to ratify, confirm and be bound by whatever the Attorney does in exercising powers
under this power of attorney.6.
    
    DECLARATION
  7.
    
    USE OF NAME
  8.
    
    AUTHORITY TO BENEFIT THIRD PARTIES




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##### 



9.
    
    APPOINTMENT IRREVOCABLE
  10.
    
    US ACKNOWLEDGMENT
 28 U.S.C î 459,
î 953, Rule 9012
 11.
    
    GOVERNING LAW
  12.
    
    NOTICES
  13.
    
    COUNTERPARTS




---



##### 



EXECUTED
 THE COMMON SEAL ASBESTOS INJURIES COMPENSATION FUND LIMITED




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SIGNED THE HONOURABLE MORRIS IEMMA MP,




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ATTACHMENT A  DICTIONARY AND INTERPRETATION
 DICTIONARY AND INTERPRETATION
 (Clause 1.1)
 1.
    
    DICTIONARY
  Claimants
 Compensation Parties
 Controlled Entity
 Cross Guarantee
 Initial Funding
 Insolvency Event
 Insolvency Official
 Intercreditor Deed
 JHINV
 JHINV Guarantee
 Notice
 Parent Entity
 Performing Subsidiary




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Person
 Final Funding Agreement
 Reconstruction Event
 Relevant Agreements
 Wind-Up or Reconstruction Amount
 2.
    
    INTERPRETATION
  (a)
    
    Headings are for convenience only and do not affect the interpretation of this deed.(b)
    
    The singular includes the plural and vice versa.(c)
    
    Words that are gender neutral or gender specific include each gender.(d)
    
    Where a word or phrase is given a particular meaning, other parts of speech and grammatical
forms of that word or phrase have corresponding meanings.(e)
    
    The words such as, including, particularly and similar expressions are not used as nor
are intended to be interpreted as words of limitation.(f)
    
    A reference to:
 (i)
    
    a thing (including but not limited to a chose in action or other right)
includes a part of that thing;(ii)
    
    a document includes all amendments or supplements to that document;




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(iii)
    
    a clause, term, party, schedule or attachment is a reference to a clause or
term of, or party, schedule or attachment to this deed;(iv)
    
    this deed includes all schedules and attachments to it;(v)
    
    an agreement other than this deed includes an undertaking, or legally
enforceable arrangement or understanding whether or not in writing; and(vi)
    
    a monetary amount is in Australian dollars.