Exhibit 4.13
(MALLESONS STEPHEN JAQUES LOGO)
Draft
Amending Deed —
Performing Subsidiary
Undertaking and
Guarantee Trust Deed
Dated    June 2009
James Hardie 117 Pty Limited (formerly known as LGTDD Pty Limited)
(“Performing Subsidiary”)
AET Structured Finance Services Pty Limited (“Undertaking and
Guarantee Trustee
”)
Mallesons Stephen Jaques
Level 61
Governor Phillip Tower
1 Farrer Place
Sydney NSW 2000
Australia
T +61 2 9296 2000
F +61 2 9296 3999
DX 113 Sydney
www.mallesons.com
Ref: 02-5501-6101

 


 

Amending Deed — Performing Subsidiary
Undertaking and Guarantee Trust Deed

Contents
             
Details     1  
 
           
General terms     2  
 
           
1
  Interpretation     2  
 
           
2
  Confirmations and acknowledgement     2  
 
           
2.1
  Confirmation in relation to definition of “JHINV”     2  
 
           
2.2
  Confirmation     2  
2.3
  Conflict     2  
2.4
  Consideration     3  
 
           
3
  Amendments     3  
 
           
4
  Costs     3  
 
           
5
  General     3  
 
           
6
  Counterparts     3  
 
           
7
  Governing law     3  
 
           
Schedule 1 — Irish Registration Date Amendments     4  
 
           
Signing page     5  
         
ã Mallesons Stephen Jaques
  Amending Deed — Performing Subsidiary Undertaking and Guarantee Trust Deed  
9910998_4
  18 June 2009     

 


 

Amending Deed — Performing Subsidiary
Undertaking and Guarantee Trust Deed

Details
         
Parties   Performing Subsidiary and the Undertaking and Guarantee Trustee
 
       
Performing Subsidiary
  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
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
  June 2009  
         
ã Mallesons Stephen Jaques
  Amending Deed — Performing Subsidiary Undertaking and Guarantee Trust Deed  
9910998_4
  18 June 2009     

 


 

Amending Deed — Performing Subsidiary
Undertaking and Guarantee Trust Deed

General terms
         
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.
 
       
    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
  Amending Deed — Performing Subsidiary Undertaking and Guarantee Trust Deed  
9910998_4
  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  
9910998_4
  18 June 2009     

 


 

Amending Deed — Performing Subsidiary
Undertaking and Guarantee Trust Deed

Schedule 1 — Irish Registration Date Amendments
The Performing Subsidiary Undertaking and Guarantee Trust Deed is amended as follows:
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
  Amending Deed — Performing Subsidiary Undertaking and Guarantee Trust Deed  
9910998_4
  18 June 2009     

 


 

Amending Deed — Performing Subsidiary
Undertaking and Guarantee Trust Deed

Signing page
             
DATED:
June   2009      
 
           
EXECUTED by JAMES HARDIE
    )      
117 PTY LIMITED in accordance
    )      
with section 127(1) of the Corporations
    )      
Act 2001 (Cwlth) by authority of its
    )      
directors:
    )      
 
    )      
 
    )
)
     
Signature of director
    )    
 
 
    )     Signature of director/company
 
    )     secretary*
 
    )     *delete whichever is not applicable
 
    )      
Name of director (block letters)
    )    
 
 
    )     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:
   
 
(signed)
   
 
(print name)
   
 
Authorised Officer
   
 
(signed)
   
 
(print name)
   
 
Authorised Officer
   
         
ã Mallesons Stephen Jaques
  Amending Deed — Performing Subsidiary Undertaking and Guarantee Trust Deed  
9910998_4
  18 June 2009