Details | 1 | |||||
General terms | 2 | |||||
1
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Interpretation | 2 | ||||
2
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Confirmations and acknowledgement | 2 | ||||
2.1
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Confirmation in relation to definition of JHINV | 2 | ||||
2.2
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Confirmation | 2 | ||||
2.3
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Conflict | 2 | ||||
2.4
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Consideration | 3 | ||||
3
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Amendments | 3 | ||||
4
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Costs | 3 | ||||
5
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General | 3 | ||||
6
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Counterparts | 3 | ||||
7
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Governing law | 3 | ||||
Schedule 1 Irish Registration Date Amendments | 4 | |||||
Signing page | 5 |
ã Mallesons Stephen Jaques
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Amending Deed Performing Subsidiary Undertaking and Guarantee Trust Deed | i | ||
9910998_4
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18 June 2009 |
Parties | Performing Subsidiary and the Undertaking and Guarantee Trustee | |||
Performing
Subsidiary
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Name | James Hardie 117 Pty Limited (formerly known as LGTDD Pty Limited) | ||
ABN | 30 116 110 948 | |||
Address | Level 3, 32 Pitt Street, Sydney, NSW, 2000 | |||
Undertaking and
Guarantee Trustee
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Name | AET Structured Finance Services Pty Ltd in its capacity as trustee for the Financiers under the Guarantee Trust | ||
ABN | 12 106 424 088 | |||
Address | Level 22, 207 Kent Street Sydney, NSW, 2000 | |||
Recitals | The Performing Subsidiary and the Undertaking and Guarantee Trustee are parties to the Performing Subsidiary Undertaking and Guarantee Trust Deed and wish to amend the Performing Subsidiary Undertaking and Guarantee Trust Deed on the terms set out in this deed. | |||
Date of Amending
Deed
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[] 2009 |
ã Mallesons Stephen Jaques
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Amending Deed Performing Subsidiary Undertaking and Guarantee Trust Deed | 1 | ||
9910998_4
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18 June 2009 |
1 | Interpretation | |||
Clause 1 (Interpretation) of the James Hardie - Performing Subsidiary Undertaking and Guarantee Trust Deed applies to this deed as if it was fully set out in this deed. | ||||
These meanings apply unless the contrary intention appears: | ||||
Performing Subsidiary Undertaking and Guarantee Trust Deed means the document entitled Performing Subsidiary Undertaking and Guarantee Trust Deed dated 19 December 2006 between the Performing Subsidiary and the Undertaking and Guarantee Trustee. | ||||
Irish Registration Date means the date on which JHISE is registered by the Registrar of Companies of Ireland as having its registered office in Ireland. | ||||
JHISE means JHINV once it has converted from its present corporate form as a Dutch NV (Naamloze Vernootschap) into an SE (Societas Europaea). | ||||
Novation Date means the Effective Date as defined in the Novation Deed dated [] 2009. | ||||
Novation Deed means a deed substantially in the form set out in Annexure B of the Deeds of Confirmation dated [23] June 2009 between James Hardie Industries N.V., James Hardie International Finance B.V., James Hardie Building Products, Inc. and financiers to James Hardie Group. | ||||
SE Transformation Date means the date on which JHINV is registered as a Societas Europaea on the Dutch Trade Register pursuant to European Union Council Regulation 2157/2001. | ||||
2 | Confirmations and acknowledgement | |||
2.1 | Confirmation in relation to definition of JHINV | |||
Each party confirms that the definition of JHINV for the purposes of the Performing Subsidiary Undertaking and Guarantee Trust Deed is a reference to: | ||||
(a) | with effect on and from the SE Transformation Date up to the Irish Registration Date, JHISE with its corporate seat in The Netherlands; and | |||
(b) | with effect on and from the Irish Registration Date, JHISE with its corporate seat in the Republic of Ireland. | |||
2.2 | Confirmation | |||
Each party confirms that, other than as provided for in clause 3 (Amendments), the Performing Subsidiary Undertaking and Guarantee Trust Deed remains in full force and effect and enforceable against it up to, including and after each of the SE Transformation Date and the Irish Registration Date. | ||||
2.3 | Conflict | |||
If there is a conflict between the Performing Subsidiary Undertaking and Guarantee Trust Deed and this deed, the terms of this deed prevail. |
ã Mallesons Stephen Jaques
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Amending Deed Performing Subsidiary Undertaking and Guarantee Trust Deed | 2 | ||
9910998_4
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18 June 2009 |
2.4 |
Consideration | |
This deed is entered into in consideration of the parties exchange of promises under this deed and the receipt of valuable consideration which is hereby acknowledged. | ||
3 |
Amendments | |
As from the Novation Date, the Performing Subsidiary Undertaking and Guarantee Trust Deed is amended as set out in schedule 1. | ||
4 |
Costs | |
Each party shall be responsible for its own costs, charges and expenses in connection with the preparation, negotiation and execution of this deed. | ||
5 |
General | |
Clause 27 (Notices) of the Performing Subsidiary Undertaking and Guarantee Trust Deed applies to this deed as if it was fully set out in this deed. | ||
6 |
Counterparts | |
This deed may consist of a number of copies each signed by one or more parties to the deed. If so, the signed copies are treated as making up the one document. | ||
7 |
Governing law | |
This deed is governed by the law in force in New South Wales. Each party submits to the non-exclusive jurisdiction of the courts of that place and waives any right to claim that those courts are an inconvenient forum. | ||
EXECUTED as a deed. |
ã Mallesons Stephen Jaques |
Amending Deed Performing Subsidiary Undertaking and Guarantee Trust Deed | 3 | ||
9910998_4 |
18 June 2009 |
1 | The definition of Business Day in clause 1.1 (Definitions) is amended by deleting paragraph (c) and replacing it with the following paragraph: |
(c) | for all other purposes, banks are open for general banking business in Sydney and any other place or places specified in the relevant Finance Document.. |
2 | Clause 28.4 (Set-off) is amended by deleting the words Dutch law in the fourth line and replacing it with the laws of New South Wales, Australia. |
ã Mallesons Stephen Jaques
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Amending Deed Performing Subsidiary Undertaking and Guarantee Trust Deed | 4 | ||
9910998_4
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18 June 2009 |
DATED:
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2009 | |||||
EXECUTED by JAMES HARDIE
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) | |||||
117 PTY LIMITED in accordance
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) | |||||
with section 127(1) of the Corporations
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) | |||||
Act 2001 (Cwlth) by authority of its
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) | |||||
directors:
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) | |||||
) | ||||||
) ) |
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Signature of director
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) | |||||
) | Signature of director/company | |||||
) | secretary* | |||||
) | *delete whichever is not applicable | |||||
) | ||||||
Name of director (block letters)
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) | |||||
) | Name of director/company secretary* | |||||
) | (block letters) | |||||
*delete whichever is not applicable |
The Common Seal of AET Structured Finance
Services Pty Limited ABN 12 106 424 088 was affixed with the authority of: |
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(signed)
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(print
name)
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Authorised
Officer
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(signed)
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(print
name)
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Authorised
Officer
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ã Mallesons Stephen Jaques
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Amending Deed Performing Subsidiary Undertaking and Guarantee Trust Deed | 5 | ||
9910998_4
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18 June 2009 |