James Hardie Group - Common Terms Deed Poll

Contents

 

 

 

Details					1
General terms					3
1		Interpretation			3
1.1		Definitions			3
1.2		References to certain general terms			21
1.3		Numbers			22
1.4		Headings			22
1.5		Conflict			22
1.6		Shareholder ratification			22
1.7		Borrowers severally liable only			23
1.8		Effective Date			23
1.9		Guarantee Trust Deed and Intercreditor Deed			23
1.10		JHT Undertaking			23
Part 1 Creditors and Facilities					24
2		Creditors and Facilities			24
2.1		Deed for benefit of Creditors			24
2.2		Becoming a Creditor			24
2.3		Authorisation by each other Obligor			24
2.4		Removal of benefit for a particular Creditor			24
Part 2 Standard terms - all Facilities					25
3		Conditions precedent			25
3.1		Conditions to first drawdown			25
3.2		Conditions to subsequent drawdowns			26
4		Payments			26
4.1		Manner of payment			26
4.2		Currency of payment			27
5		Withholding tax			27
5.1		Payments by Obligor			27
5.2		Payments by a facility agent to Creditors			27
5.3		Tax credit			28
5.4		Early repayment or redemption			28
6		Increased costs			28
6.1		Compensation			28
6.2		Excluded matters			29
6.3		Substantiating costs			30
6.4		Procedure for claim			30
6.5		Possible minimisation			30

 

 

 

7		Illegality			30
7.1		Creditor’s right to suspend or cancel			30
7.2		Extent and duration			31
7.3		Notice requiring early repayment or redemption			31
7.4		Creditor to seek alternative funding method			31
8		Representations and warranties			31
8.1		Representations and warranties			31
8.2		When representations and warranties made			34
8.3		Reliance on representations and warranties			34
9		Undertakings			34
9.1		Application			34
9.2		General undertakings			34
9.3		Negative pledge and disposals			35
9.4		Financial undertakings			36
9.5		GAAP			37
9.6		Reporting undertakings			37
9.7		Officer’s certificate			40
10		Events of default			40
10.1		Events of Default			40
10.2		Consequences of default			43
11		Review events			43
12		Costs and indemnities			44
12.1		What the Borrower agrees to pay			44
12.2		Indemnity			45
12.3		Currency conversion on judgment debt			45
12.4		Indirect Taxes			45
13		Interest on overdue amounts			46
13.1		Obligation to pay			46
13.2		Compounding			46
13.3		Interest following judgment			46
Part 3 Guarantee					47
14		Guarantee and indemnity			47
14.1		Guarantee			47
14.2		Nature of guarantee			47
14.3		Indemnity			47
14.4		Acknowledgment			47
14.5		Variations and replacements			48
14.6		Reinstatement of rights			48
14.7		No merger			48
14.8		Rights of Creditors are protected			48
14.9		Guarantor’s rights are suspended			49
14.10		Guarantor’s right of proof limited			50
14.11		No set-off against assignees			50
14.12		Suspense account			50

 

 

 

14.13		Right to prove			50
Part 3 General					51
15		Change of Borrowers and Guarantors			51
15.1		New Borrowers			51
15.2		Release of Borrowers			51
15.3		New Guarantors			52
16		Dealing with interests			52
16.1		Dealings by Obligors			52
16.2		Dealings by Creditors			52
16.3		Change in lending office			52
16.4		Securitisation permitted			52
16.5		No increased costs			53
17		Obligors’ Agent			53
17.1		Obligors’ Agent as agent of the Obligors			53
17.2		Acts of Obligors’ Agent			53
18		Notices			54
18.1		Form			54
18.2		Delivery			54
18.3		When effective			54
18.4		Receipt - postal			54
18.5		Receipt - fax			54
18.6		Receipt - general			55
18.7		Notices to or from facility agent			55
18.8		Waiver of notice period			55
19		General			55
19.1		Consents			55
19.2		Certificates			55
19.3		Set-off			55
19.4		Discretion in exercising rights			55
19.5		Partial exercising of rights			55
19.6		No liability for loss			55
19.7		Conflict of interest			56
19.8		Remedies cumulative			56
19.9		Indemnities			56
19.10		Rights and obligations are unaffected			56
19.11		Inconsistent law			56
19.12		Supervening legislation			56
19.13		Variation			56
19.14		Waiver			56
19.15		Confidentiality			56
19.16		Creditor’s compliance with law			57
19.17		No responsibility for other’s obligations			57
19.18		Further steps			57
19.19		Counterparts			57
19.20		Governing law			58
19.21		Serving documents			58
19.22		Process Agent			58

 

 

 

Schedule 1 - Verification Certificate (clause 3.1)			59
Schedule 2 - Facility Nomination Letter (clause 2.1)			61
Schedule 3A - Form of New Borrower Deed Poll (clause 15.1)			63
Schedule 3B - Form of New Guarantor Deed Poll (clause 15.3)			64
Schedule 4 - Form of Release Request (clause 15.2)			65
Schedule 5 - Form of Deed of Release (clause 15.2)			66
Signing page			67

 

James Hardie Group - Common Terms Deed Poll

Details

 

 

Interpretation – Definitions are in clause 1 (“Interpretation”).

 

Parties		JHIFL, JHBP, Parent, JHIGL and JHT, each as described below, including in their various capacities as Obligors’ Agent, Borrower and Guarantor.
JHIFL, the initial Obligors’ Agent and a Borrower		Name		James Hardie International Finance Limited
		Incorporated in		Ireland with Registration Number 471702
		Address		Europa House Second Floor Harcourt Centre Harcourt Street Dublin 2, Ireland
		Fax		+ 353 1 479 1128
		Attention		Treasurer
JHBP and a Borrower		Name		James Hardie Building Products, Inc.
		Incorporated in		Nevada
		Address		Suite 400 26300 La Alameda Mission Viejo CA 92691 United States of America
		Fax		+ 1 949 348 4534
		Attention		Company Secretary
Parent		Name		James Hardie Industries plc
		Incorporated in		Ireland with Registration Number 485719
		Address		Europa House Second Floor Harcourt Centre Harcourt Street Dublin 2, Ireland
		Fax		+ 353 1 479 1128
		Attention		Company Secretary

 

 

 

 

JHIGL and a Guarantor		Name		James Hardie International Group Limited
		Incorporated in		Ireland with Registration Number 504374
		Address		Europa House Second Floor Harcourt Centre Harcourt Street Dublin 2, Ireland
		Fax		+ 353 1 479 1128
		Attention		Company Secretary
JHT and a Guarantor		Name		James Hardie Technology Limited
		Incorporated in		Bermuda
		Address		Europa House Second Floor Harcourt Centre Harcourt Street Dublin 2, Ireland
		Fax		+ 353 1 479 1128
		Attention		Company Secretary
In favour of:		Each Creditor as defined in this amended and restated deed.
Date of deed		See Signing page
Recitals		A      This amended and restated deed amends and restates the “James Hardie - Common Terms Deed Poll” dated 15 June 2005 as amended by the “CTDP Amendment Deed and New Borrower Deed Poll” dated 12 January 2006 and as further amended and restated on 20 February 2008, 6 October 2009 and 21 December 2009 (together, the “Previous Deeds”).
		B      The amendment and restatement of the Previous Deeds does not affect the nomination of any Person as a Creditor nor the nomination of any document as a Facility Agreement or Transaction Document prior to the execution of this amended and restated deed.
		C      The amendment and restatement of the Previous Deeds only applies to a Creditor which has agreed to the changes made to the Previous Deeds by this amended and restated deed.   D      The Parent was formerly known as James Hardie Industries NV, and then James Hardie Industries SE, having successively transformed from a Dutch naamloze vennootschap into a societas europaea, moved its corporate domicile from The Netherlands to Ireland, and converted to an Irish public limited company.

 

 

 

 

James Hardie Group - Common Terms Deed Poll

General terms

 

 

 

 

 

1	Interpretation

 

1.1

Definitions

These meanings apply unless the contrary intention appears:

A$, AUD or Australian Dollars means the lawful currency of Australia.

AFFA means the document entitled “Amended & Restated Final Funding Agreement in respect of the provision of long term funding for compensation arrangements for certain victims of Asbestos-related diseases in Australia” dated 21 November 2006 between the Parent (then known as James Hardie Industries N.V.), James Hardie 117 Pty Limited (formerly known as LGTDD Pty Limited), the State of New South Wales and the Asbestos Injuries Compensation Fund Limited in its capacity as trustee of the Asbestos Injuries Compensation Fund.

Amended and Restated Trust Deed means the Asbestos Injuries Compensation Fund Amended and Restated Trust Deed dated 14 December 2006 between the Parent (then known as James Hardie Industries N.V.) and Asbestos Injuries Compensation Fund Limited.

Asbestos Injuries Compensation Fund has the meaning given to it in the Amended and Restated Trust Deed.

ASX means ASX Limited or the stock exchange operated by it.

ASX CNW Announcement means any release of information by the Parent through the ASX concerning any event or circumstance affecting the financial position of the Group in a manner which would affect the calculation of Consolidated Net Worth and which sets out specific details of the balance sheet impact of such event or circumstance.

ASX CNW Announcement Date means the date on which an ASX CNW Announcement is made.

Authorisation means:

 

(a)

any consent, registration, filing, agreement, notarisation, certificate, licence, approval, permit, authority or exemption from, by or with a Government Agency; and

 

(b)

any consent or authorisation regarded as given by a Government Agency due to the expiration of the period specified by a statute within which the Government Agency should have acted if it wished to proscribe or limit anything already lodged, registered or notified under that statute.

Authorised Officer means:

 

(a)

in the case of a Creditor, a director or secretary of the Creditor, or an officer of that party 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 appointed by the Creditor as an Authorised Officer for the purposes of a Transaction Document; and

 

(b)

in the case of an Obligor:

 

(i)

any person who is a director, chief financial officer, treasurer or company secretary of that Obligor; and

 

(ii)

any other person appointed by the Obligor and notified to the Creditor as an Authorised Officer for the purposes of a Transaction Document, and whose specimen signature is provided with such notification to the Creditor.

Borrower means each of JHIFL, JHBP and any new borrower under clause 15.1 (“New Borrowers”) individually but not jointly. It excludes any person released pursuant to clause 15.2 (“Release of Borrowers”).

Break Costs means the actual costs and losses which a Creditor certifies (with reasonable details) that it has suffered or incurred by reason of:

 

(a)

the liquidation or re-employment of deposits or other funds acquired or contracted for by the Creditor to fund or maintain financial accommodation under a Facility; or

 

(b)

the termination or reversing of any agreement or arrangement entered into by the Creditor to hedge, fix or limit its effective cost of funding in relation to a Facility,

calculated in accordance with normal banking practices, but excluding any loss of margin.

Business Day means a weekday (not being a public holiday) on which:

 

(a)

in respect of a day on which the interest rate under a Facility Agreement is required to be determined and for the purposes of giving drawdown notices and selection notices under a Facility Agreement, banks are open for general banking business in London;

 

(b)

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

 

(c)

for the purpose of making or receiving any payments in another currency, banks are open for general banking business in Dublin, Sydney and such place or places specified in a relevant Facility Agreement; and

 

(d)

for all other purposes, banks are open for general banking business in Dublin, Sydney and any other place specified in a relevant Facility Agreement.

Capital Lease means, at any time, a lease with respect to which the lessee is required concurrently to recognise the acquisition of an asset and the incurrence of a liability in accordance with GAAP.

Capital Lease Obligation means, with respect to any Group Member (other than an Excluded Entity) and a Capital Lease, the amount of the obligation of such Group Member as the lessee under such Capital Lease which would, in accordance with GAAP, appear as a liability on a balance sheet of such Group Member.

 

Change of Control means the Parent becoming a Subsidiary of another person.

Charitable Fund has the meaning given to it in the AFFA.

Compensation Provision means, at any time, the aggregate amount (without double counting) of provisions made by the Group at that time in accordance with GAAP for asbestos related liabilities (including, without limitation, obligations to fund or pay compensation pursuant to the AFFA).

Consolidated Funded Capitalisation means, at any time, the sum of Consolidated Net Worth and Consolidated Funded Debt at that time.

Consolidated Funded Debt means, as of any date of determination, the total of all Funded Debt of the Group outstanding on that date, after eliminating:

 

(a)

all Funded Debt (if any) of the Excluded Entities; and

 

(b)

all offsetting debits and credits between any Group Members (excluding the Excluded Entities) and all other items required to be eliminated in the course of the preparation of consolidated financial statements of the Group in accordance with GAAP.

Consolidated Net Worth means, at any date of determination, the sum of:

 

(a)

the par value (or value stated in the books of the Group) of the capital stock (but excluding treasury stock and capital stock subscribed and unissued) of the Group; and

 

(b)

the amount of the paid-in capital and retained earnings of the Group,

plus the Compensation Provision on that date (and eliminating all other consequential balance sheet impacts relating to the Compensation Provision), in each case as such amounts would be shown on the consolidated balance sheet of the Group prepared:

 

(i)

as if the Excluded Entities were not Subsidiaries of the Parent (to the intent that the assets, liabilities and other balance sheet items of all Excluded Entities shall be excluded in calculating Consolidated Net Worth); and

 

(ii)

in accordance with GAAP,

in each case, on:

 

(A)

the most recent Reporting Date; or

 

(B)

where applicable, on the most recent ASX CNW Announcement Date, to the extent such amounts have been adjusted to reflect the content of any ASX CNW Announcement which post-dates such balance sheet.

Consolidated Permitted External Financial Indebtedness means, as of any date of determination, the total of all Permitted External Financial Indebtedness of the Group outstanding on that date, after eliminating all offsetting debits and credits between any Group Members (excluding the Excluded Entities) and all other items required to be eliminated in the course of the preparation of consolidated financial statements of the Group in accordance with GAAP.

Controller has the meaning it has in the Corporations Act or, in the case of an Obligor constituted in a jurisdiction other than Australia, an equivalent insolvency officeholder such as a liquidator, receiver, receiver and manager, administrative receiver, official manager, statutory manager, examiner or other person performing equivalent functions (howsoever called).

 

Corporations Act means the Corporation Act 2001 of Australia.

Costs means costs, fees, disbursements, charges and expenses, including, without limitation where an Obligor is liable to pay or reimburse the Costs, those incurred in connection with advisers and, unless an Event of Default is subsisting, only for an amount and on a basis previously agreed to in writing by the Obligors’ Agent or the Parent.

Creditor means each party nominated as a “Creditor” under a Facility Nomination Letter which has been countersigned by that party (or in the case of a syndicated facility agreement, the facility agent on that party’s behalf) in accordance with clause 2.2 (“Becoming a Creditor”), subject to clause 2.4 (“Removal of benefit for a particular Creditor”). If there are more than one, “Creditor” means each of them individually but not jointly. It includes, in the case of any syndicated facility, the facility agent. It does not include any Group Member.

Deed of Release means a deed poll in the form of schedule 5 (“Form of Deed of Release”).

Default Rate means, in respect of a Transaction Document, the rate of interest specified in that document as payable on any amount not paid under the document on the due date for payment. If not otherwise specified in the relevant Transaction Document, for the purpose of this definition, the Interest Rate is calculated as if the overdue amount is a cash advance with interest periods of 30 days (or another period chosen from time to time by the relevant Creditor), with the first interest period starting on and including the due date.

Details means the section of this amended and restated deed headed “Details”.

Directive means:

 

(a)

a law; or

 

(b)

a treaty, official directive, regulation, request, guideline or policy (whether or not having the force of law) with which responsible financiers generally comply in carrying on their business.

Due Currency means, in respect of any payment to be made under a Transaction Document, the currency in which that payment is due.

EBIT means the operating profit of the Group, on a consolidated basis, before adjustments for:

 

(a)

significant, extraordinary, abnormal or exceptional items;

 

(b)

items recognised in connection with the Special Commission of Inquiry into Medical Research and Compensation Foundation and other related expenses; and

 

(c)

income tax,

but after:

 

(i)

adding back Net Interest Charges and all items referred to in paragraphs (a) to (e) of the definition of “Net Interest Charges” that were deducted in deriving the operating profit figure of the Group; and

 

(ii)

eliminating all income, expense and other profit and loss statement impact of the Excluded Entities,

determined in each case by reference to the latest audited consolidated financial statements of the Group delivered under clause 9.6(b) (“Reporting undertakings”). It excludes any earnings from any Project Activities if these are derived from Project Vehicles or Project Property over which there exist Security Interests (unless such earnings have actually been received in cash by an Obligor).

¹ Effective Date means the date specified by the Obligors’ Agent, by a notice given to each Creditor having the benefit of the Previous Deeds in the manner specified in clause 18 (“Notices”) of the Previous Deeds, as the date on which this amended and restated deed will take effect in accordance with clause 1.8 (“Effective Date”), provided that the Obligors’ Agent may not give that notice until after:

 

(a)

all such Creditors have confirmed receipt of:

 

(i)

a certificate in relation to each Obligor given by a director of the relevant Obligor substantially in the form of schedule 1 (“Verification Certificate”) with the attachments referred to in that certificate; and

 

(ii)

a certified copy of this amended and restated deed executed by all the Obligors;

 

(b)

all such Creditors have received a Facility Nomination Letter executed by the Obligors’ Agent and all such Creditors have accepted nomination under that Facility Nomination Letter by returning a signed copy to the Obligors’ Agent;

 

(c)

all such Creditors have confirmed receipt of legal opinions in respect of the relevant Obligors’ obligations under this amended and restated deed from:

 

(i)

Arthur Cox, Irish legal advisers to JHIFL, JHIGL and the Parent;

 

(ii)

McDonald Carano & Wilson, United States of America legal advisers to JHBP;

 

(iii)

Conyers Dill & Pearman Limited, special Bermuda legal advisers to JHT; and

 

(iv)

King & Wood Mallesons, Australian legal advisers to the Obligors; and

 

(d)

(know your customer) if any Creditor is required to comply with any KYC Checks and the information necessary is not already available to it, and to the extent not previously provided to that Creditor:

 

(i)

such documentation and other evidence as is reasonably requested by that Creditor to enable that Creditor to so comply; and

 

(ii)

that Creditor has confirmed such documentation and other evidence has been provided to it.

 

 

1	29 January 2013 has been specified by the Obligors’ Agent as the Effective Date.

 

Environmental Laws means any and all applicable statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licences, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.

Event of Default means an Event of Default set out in clause 10.1 (“Events of Default”).

Exchange Act means the Securities Exchange Act 1934 of the United States of America.

Excluded Entity means the Fund (and Asbestos Injuries Compensation Fund Limited in its personal capacity) and each of the following entities:

 

(a)

Amaba Pty Limited (ACN 000 387 342);

 

(b)

Amaca Pty Limited (ACN 000 035 512);

 

(c)

ABN 60 Pty Limited (ACN 000 009 263); and

 

(d)

Marlew Mining Pty Limited (formerly known as Asbestos Mines Pty Limited) (ACN 000 049 650),

and any other entity agreed in writing by the Parent and each Creditor (or, in the case of a syndicated facility, the facility agent).

Excluded Tax means:

 

(a)

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

 

(i)

that is calculated on or by reference to the gross amount of a payment derived under a Transaction Document or another document referred to in a Transaction Document (without the allowance of a deduction);

 

(ii)

that is imposed as a result of the Creditor being considered a resident or organised or doing business in that jurisdiction solely as a result of it being a party to a Transaction Document or a transaction contemplated by a Transaction Document;

 

(b)

in relation to any payment by an Obligor resident or incorporated in the United States of America (“US Obligor”), any Tax payable by reason of the Creditor not being in receipt of such payment through, or such payment not being attributable to, a branch or lending office in the United States of America or by reason of the payment not being considered effectively connected income of a trade or business conducted within the United States of America by such branch or lending office (including, without limitation, any withholding tax payable under the laws of the United States of America in respect of interest due from a US Obligor under a Facility Agreement);

 

(c)

a Tax which would not be required to be deducted by an Obligor if, before the Obligor makes a relevant payment, the relevant Creditor provided the Obligor with written confirmation as to any of its name, address, registration number, country of residence for tax purposes (including whether the relevant Creditor carries on a trade or business in the Obligor’s country of residence and/or incorporation through a branch

 

or agency in connection with which the relevant Creditor receives the relevant payment) or similar details or any relevant tax exemption or similar details; or

 

(d)

in relation to any payment by an Irish Obligor, any Tax imposed by Ireland by reason of the Creditor to which the payment is made not being an Irish Qualifying Creditor.

Facility means any facility for the provision of financial accommodation under a Facility Agreement.

Facility Agreement means each agreement to which a Creditor (together with any other persons) and a Borrower are party, which is nominated as a “Facility Agreement” in a Facility Nomination Letter.

Facility Nomination Letter means a letter substantially in the form set out in schedule 2 (“Facility Nomination Letter”) to a Previous Deed or in the form set out in schedule 2 (“Facility Nomination Letter”), in either case in favour of a Creditor providing a Facility.

Financial Indebtedness means, with respect to any Group Member, without double counting:

 

(a)

its liabilities for borrowed money (including all liabilities in respect of letters of credit (excluding letters of credit and performance guarantees posted in respect of payment of accounts payable arising in the ordinary course of business) or instruments serving a similar function issued or accepted for its account by banks and other financial institutions);

 

(b)

its liabilities for the deferred purchase price (for more than 90 days) of property acquired by such Group Member (excluding accounts payable arising in the ordinary course of business);

 

(c)

its Capital Lease Obligations;

 

(d)

all Preferred Stock of Subsidiaries (excluding the Excluded Entities) of such Group Member which is not owned by such Group Member or a Wholly Owned Subsidiary of such Group Member; and

 

(e)

any Guarantee of such Group Member with respect to liabilities of a type described in any of paragraphs (a) to (d) of this definition.

Financial Year means each year ending on 31 March.

Free Cash Flow has the meaning given to that term in the AFFA.

Fund means Asbestos Injuries Compensation Fund Limited as trustee for the Asbestos Injuries Compensation Fund.

Funded Debt means, at any time, with respect to any Group Member (other than an Excluded Entity), all drawn and outstanding Financial Indebtedness (other than Non-Recourse Debt) of such Group Member owing to any person outside the Group (other than an Excluded Entity) at that time.

GAAP means generally accepted accounting principles as in effect from time to time in the United States of America.

Government Agency means any government or any governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity:

 

(a)

having jurisdiction over, or in relation to the affairs of, a Group Member and, for the avoidance of doubt, includes, without limitation, the Australian Taxation Office, the US Internal Revenue Service and the Irish Revenue Commissioners, in each case to the extent applicable; or

 

(b)

in the jurisdiction in which a Creditor is incorporated or in which a Facility Office of the Creditor is located and having jurisdiction over, or in relation to the affairs of, the Creditor,

as the case may be.

Group means the Parent and its Subsidiaries and Group Member means any one of them.

Guarantee means any guarantee, suretyship, letter of credit, or any other obligation (whatever called and of whatever nature):

 

(a)

to provide funds (whether by the advance or payment of money, the purchase of or subscription for shares or other securities, the purchase of assets or services, or otherwise) for the payment or discharge of;

 

(b)

to indemnify any person against the consequences of default in the payment of; or

 

(c)

to be responsible for,

any debt or monetary liability of another person or the assumption of any responsibility or obligation in respect of the insolvency or the financial condition of any other person.

Guarantee and Indemnity means the guarantee and indemnity in clause 14 (“Guarantee and indemnity”).

Guarantee Trust Deed means the deed entitled “Guarantee Trust Deed” dated 19 December 2006 between the Parent (then known as James Hardie Industries N.V.) and AET Structured Finance Services Pty Limited.

Guarantor means each of JHIGL and JHT and any new guarantor under clause 15.3 (“New Guarantors”) jointly and severally. For the avoidance of doubt, neither Borrower nor the Parent is a Guarantor.

Indirect Tax means any goods and services tax, consumption tax, value added tax or any tax of a similar nature.

A person is Insolvent if it:

 

(a)

admits in writing its inability to pay its debts as they become due (otherwise than as contemplated in clause 16.6 (“NSW Government’s right and power to enforce”) of the AFFA);

 

(b)

was established under Irish law and files a petition with any court in Ireland in relation to its liquidation, the bringing forward of a scheme of arrangement or the appointment of an examiner;

 

(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 is at the time of filing unable to pay its debts generally as and when they become due and also provided that, in such filing under Chapter 11 of that Code a person is Insolvent no later than the earliest date as of which creditors may vote on any matter or accept or reject a plan of reorganisation;

 

(d)

makes an assignment for the benefit of its creditors generally;

 

(e)

consents to the appointment of a custodian (not being a nominee for the person), receiver, receiver and manager, trustee or other officer with similar powers with respect to it or with respect to a substantial part of its property;

 

(f)

consents to the appointment of an insolvency administrator or such an insolvency administrator is appointed and that appointment is not terminated within 28 days;

 

(g)

is adjudicated as insolvent or to be liquidated, in each case, by a court of competent jurisdiction;

 

(h)

is subject to Winding Up,

and Insolvency has a corresponding meaning.

Intercreditor Deed means the deed so entitled dated 19 December 2006 between the State of New South Wales, the Parent (then known as James Hardie Industries N.V.), Asbestos Injuries Compensation Fund Limited in its capacity as trustee for the Charitable Fund and AET Structured Finance Services Pty Limited as amended by the letter dated 19 December 2006 between the same parties.

IP Assets means:

 

(a)

any patents, trademarks, service marks, designs, business names, copyrights, database rights, design rights, domain names, moral rights, inventions, confidential information, knowhow and other intellectual property rights and interests (which may now or in the future subsist), whether registered or unregistered;

 

(b)

any interest in any of them; and

 

(c)

the benefit of all applications and rights to use any such assets (which may now or in the future subsist).

Irish Obligor means an Obligor resident or incorporated in Ireland.

Irish Qualifying Creditor means in respect of an Irish Obligor, a Creditor which at the time the payment is made, is beneficially entitled to the interest payable to that Creditor in respect of an advance under a Facility and is:

 

(a)

an entity which is, pursuant to Section 9 of the Central Bank Act, 1971 of Ireland, licensed to carry on banking business in Ireland and whose Facility office is located in Ireland and which is recognised by the Revenue Commissioners of Ireland as carrying on a bona fide banking business in Ireland for the purposes of Section 246(3)(a) of the Taxes Consolidation Act 1997 of Ireland (“TCA”) in circumstances where the payments are made from Ireland and which is regarded by the Revenue Commissioners of Ireland as having made the advance for the purposes of Section 246(3)(a) TCA;

 

 

 

(b)

an authorised credit institution under the terms of the European Union Consolidation Directive (Directive 2000/12/EC) that has duly established a branch in Ireland or has made all necessary notifications to its home state competent authorities required thereunder in relation to its intention to carry on banking business in Ireland and which is recognised by the Revenue Commissioners of Ireland as carrying on a bona fide banking business in Ireland for the purposes of Section 246(3)(a) TCA and has its Facility office located in Ireland in circumstances where the payments are made from Ireland and which is regarded by the Revenue Commissioners of Ireland as having made the advance for the purposes of Section 246(3)(a) TCA;

 

(c)

a company (within the meaning of Section 246(1) TCA) which is resident in a country with which Ireland has a double taxation treaty or resident in a member state of the European Communities (other than Ireland) where residence is determined under the tax laws of the relevant country or Member State (together a “Relevant Territory”), provided that such company does not provide its commitment through or in connection with a branch or agency in Ireland, and where the company has provided written confirmation of the foregoing to the Irish Obligor before the Irish Obligor makes a relevant payment;

 

(d)

a US company, where such company has provided written confirmation to the Irish Obligor that it is incorporated in the US and subject to tax in the US on its worldwide income provided that such company does not provide its commitment through or in connection with a branch or agency in Ireland; or

 

(e)

a Creditor which is entitled under a double taxation agreement between the jurisdiction in which such Creditor is resident for Tax purposes and Ireland, subject to the completion of any necessary procedural formalities, to receive all payments from the Irish Obligor without a tax deduction, where such Creditor has applied for and the relevant Irish Obligor has obtained authorisation from the Revenue Commissioners of Ireland to make payments without deduction of Irish tax, and where such authorisation remains in force and effect.

JH Insurance means James Hardie Insurance Ltd, a company incorporated in Guernsey.

JHT Undertaking means the deed poll dated on or about 25 September 2009 given by JHT in favour of the Creditors.

KYC Checks means, for a Creditor, the Creditor’s ‘know your customer’ or similar identification and verification checks and procedures required for the Creditor to comply with the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of Australia and the Anti-Money Laundering and Counter-Terrorism Financing Act Rules and any other analogous law or regulation in Australia or of another country, to manage anti-money laundering, counter-terrorism financing or economic and trade sanctions risk.

Majority Creditor means:

 

(a)

in relation to a syndicated or capital markets facility, the Creditors who form a “majority” (howsoever described) as defined under that facility or all such Creditors, to the extent so required under that facility; and

 

(b)

in relation to a bilateral facility, the Creditor under that facility.

Material Adverse Effect means a material adverse effect on:

 

(a)

the ability of any Borrower to perform its obligations to pay Outstanding Moneys when the same are due or within any applicable grace period;

 

(b)

the ability of any Guarantor to perform its obligations to pay any amounts under the Guarantee and Indemnity if a Borrower does not pay the Guaranteed Money on time and in accordance with a Transaction Document; or

 

(c)

the validity or enforceability of the Transaction Documents.

Material Subsidiary means any Subsidiary of the Parent (other than an Excluded Entity) whose total assets at the time of determination (consolidated in the case of a Subsidiary which itself has one or more Subsidiaries) represent not less than 15% of Consolidated Net Worth at that time.

Net Interest Charges for a period means all interest and amounts in the nature of interest or of similar effect to interest, paid or payable by the Group (excluding the Excluded Entities), on a consolidated basis, less interest income received by or arising to the Group (excluding the Excluded Entities), on a consolidated basis, in the same period for which such Net Interest Charges are being determined, in each case by reference to the financial statements referred to in clause 9.6 (“Reporting undertakings”). It excludes:

 

(a)

any swap break or reset costs incurred and paid as part of any termination of any hedging or facility;

 

(b)

any break costs, early redemption premium, make-whole payments, liquidated damages or other penalties (howsoever described) incurred and paid in connection with the prepayment of any facility;

 

(c)

capitalising interest under any agreement for the provision of Financial Indebtedness to a Group Member which is in the nature of:

 

(i)

a construction facility to fund capital expenditure to be undertaken by a Group Member (but only while that capitalising interest is not payable under the terms of that agreement); or

 

(ii)

a capital-indexed or zero coupon debt instrument which contractually allows the capitalisation of interest;

 

(d)

establishment, arrangement, underwriting and other fees payable once only on the initial provision of financial accommodation; and

 

(e)

all interest and amounts in the nature of interest, and any other amounts of the kind referred to in paragraphs (a) to (d) above, relating to:

 

(i)

Subordinated Debt;

 

(ii)

hybrid capital;

 

(iii)

Non-Recourse Debt; or

 

(iv)

a loan under which financial accommodation is provided from one Group Member (not being an Excluded Entity) to another Group Member (not being an Excluded Entity).

New Borrower means a person who executes a New Borrower Deed Poll in accordance with clause 15.1 (“New Borrowers”).

 

 

 

New Borrower Deed Poll means each deed poll entered into by a New Borrower substantially in the form set out in schedule 3A (“Form of New Borrower Deed Poll”).

New Guarantor means a person who executes a New Guarantor Deed Poll in accordance with clause 15.3 (“New Guarantors”).

New Guarantor Deed Poll means each deed poll entered into by a New Guarantor substantially in the form set out in schedule 3B (“Form of New Guarantor Deed Poll”).

Non-Australian Obligor means an Obligor which is not resident or incorporated in Australia.

Non-Recourse Debt means any Project Debt if, and for so long as:

 

(a)

the person to whom the Project Debt is owed does not have recourse (whether by way of execution, set-off or otherwise) to a Group Member or its assets for the payment or repayment of the Project Debt other than to assets which the Security Interest (“Project Securities”) securing that Project Debt are permitted to extend to under paragraph (h) of the definition of Permitted Security Interest (that person, and any agent or trustee on that person’s behalf, being a “Non-Recourse Financier”);

 

(b)

the Non-Recourse Financier may not seek to wind up or place into administration, or pursue or make a claim in the winding up or administration of, any other Group Member to recover or to be repaid that Project Debt;

 

(c)

the Non-Recourse Financier cannot obtain specific performance or a similar remedy with respect to any obligation of another Group Member to pay or repay that Project Debt; and

 

(d)

the Non-Recourse Financier and any receiver, receiver and manager, agent or attorney appointed under the Project Securities, may not incur a liability on behalf of, or for the account of, a Group Member which liability itself is not subject to the above paragraphs as if references to Project Debt in those paragraphs included that liability.

For the avoidance of doubt, if Project Debt is incurred or owed by a Group Member which is not a Project Vehicle, then the tests in paragraphs (b) and (c) above must also be satisfied in respect of that Group Member in order for the Project Debt to qualify as Non-Recourse Debt.

Obligor means:

 

(a)

a Borrower;

 

(b)

the Parent; or

 

(c)

a Guarantor.

Obligors’ Agent means JHIFL or another Borrower:

 

(a)

appointed by all the Borrowers, the Parent and all the Guarantors as Obligors’ Agent;

 

(b)

which has accepted such appointment; and

 

(c)

whose appointment has been notified to all Creditors.

 

 

 

Obligor Financial Reports means:

 

(a)

in the case of JHBP, the non-public financial or equivalent reports prepared in respect of JHBP (or separate reports prepared for each division of JHBP) for the purpose of preparing consolidated financial statements of the Group, the form and content of which is at the discretion of JHBP;

 

(b)

in the case of JHIFL, the non-public financial or equivalent reports prepared in respect of JHIFL for the purpose of preparing consolidated financial statements of the Group, the form and content of which is at the discretion of JHIFL;

 

(c)

in the case of JHIGL, the non-public financial or equivalent reports prepared in respect of JHIGL for the purpose of preparing consolidated financial statements of the Group, the form and content of which is at the discretion of JHIGL; and

 

(d)

in the case of JHT, the non-public financial or equivalent reports prepared in respect of JHT for the purpose of preparing consolidated financial statements of the Group, the form and content of which is at the discretion of JHT.

For the avoidance of doubt, no Obligor Financial Reports are required in relation to the Parent, but without prejudice to the provisions of clauses 9.6(a), 9.6(b) and 9.6(d) (“Reporting undertakings”) in relation to the financial statements and reports of the Parent and the Group.

Outstanding Moneys means all debts and monetary liabilities of each Obligor to a Creditor under or in relation to any Transaction Document and in any capacity, irrespective of whether the debts or liabilities:

 

(a)

are present or future;

 

(b)

are actual, prospective, contingent or otherwise;

 

(c)

are at any time ascertained or unascertained;

 

(d)

are owed or incurred by, or on account of, that Obligor alone or severally or jointly with any other person;

 

(e)

are owed to or incurred for the account of that Creditor alone or severally or jointly with any other person;

 

(f)

are owed or incurred as principal, interest, fees, charges, taxes, duties or other imposts, damages (whether for breach of contract or tort or incurred on any other ground), losses, costs or expenses, or on any other account; or

 

(g)

comprise any combination of the above.

Permitted Disposal means in the case of any Group Member:

 

(a)

a disposal in the ordinary course of business;

 

(b)

a disposal of assets in exchange for other assets comparable or superior as to type, value and quality;

 

(c)

a disposal of obsolete assets or assets no longer required for the purpose of the relevant Group Member’s business or operations;

 

 

 

(d)

the payment of cash for any asset acquired in the ordinary course of business;

 

(e)

the investment of funds which are not immediately required in the relevant Group Member’s business in accordance with the Group’s established money market treasury policies or the realisation of such investments;

 

(f)

the sale of assets for cash which is applied in or towards the purchase of assets comparable or superior as to type, value and quality within 6 months or used to reduce the Financial Indebtedness of any Obligor;

 

(g)

the application of the proceeds of an issue of securities (whether debt or equity) for the purpose stated in the prospectus or other offering document relating to that issue;

 

(h)

a disposal comprised in or which occurs as part of any forward sale, stock loan or repurchase transaction;

 

(i)

a disposal constituted by, or arising as a result of, any Permitted Security Interest or any Permitted External Financial Indebtedness;

 

(j)

a disposal by a Group Member to another Group Member;

 

(k)

all other disposals where the aggregate net proceeds of such other disposals in any 12 month period does not exceed 10% of total assets as shown in the balance sheet on the most recent Reporting Date; and

 

(l)

a disposal not falling within paragraphs (a) to (k) above which has the prior written consent of each Majority Creditor (or in the case of a syndicated facility, an agent or trustee acting on the instructions of the relevant Majority Creditor).

Permitted External Financial Indebtedness means Financial Indebtedness of a Group Member (other than an Obligor or an Excluded Entity) owing to any person outside the Group under or in connection with:

 

(a)

a working capital facility;

 

(b)

a transactional banking facility;

 

(c)

a Capital Lease;

 

(d)

Non-Recourse Debt;

 

(e)

a “soft loan” or other form of financial accommodation given to a Group Member by a Government Agency in connection with capital works or expansion plans undertaken by that Group Member or any other Group Member; or

 

(f)

any financial accommodation which, in the opinion of the Parent, it is preferable for the relevant Group Member to raise from external sources (rather than by an intra-Group borrowing) for reasons based on economic advantage, administrative convenience and/or legal, structural, political and/or tax considerations.

Permitted Security Interest means:

 

(a)

a Security Interest created by operation of law or otherwise to secure taxes, assessments or other governmental charges which are not more than 90 days overdue or are being contested in good faith;

 

(b)

a Security Interest which a Group Member is required to create by any applicable law or is required or considers it necessary or expedient to create in order to obtain, maintain or renew any Authorisation;

 

(c)

a Security Interest created by operation of law or otherwise in favour of a landlord, carrier, warehouseman, mechanic, materialman or other supplier (including rights by way of reservation or retention of title to property) or other similar Security Interest, in each case, incurred in the ordinary course of business for sums which are not more than 90 days overdue or are being contested in good faith;

 

(d)

a Security Interest incurred, or deposits made, in the ordinary course of business:

 

(i)

in connection with workers’ compensation, unemployment insurance and other types of social security, employment or retirement benefits; or

 

(ii)

to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capital Leases), performance bonds, purchase, construction or sales contracts and other similar obligations,

in each case not incurred or made:

 

(A)

in connection with the borrowing of money, the obtaining of advances or credit or payment of the deferred purchase price of property; nor

 

(B)

to secure obligations due under the AFFA or any Related Agreement (as defined in the AFFA);

 

(e)

a Security Interest in respect of a judgment debt of a Group Member, provided that the judgment is discharged or execution of it is stayed (permanently or pending appeal) within 90 days of entry thereof or adequate reserves have been provided for it;

 

(f)

leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances, in each case incidental to, and not interfering with, the ordinary conduct of the business of the Group;

 

(g)

a Security Interest on property or assets of a Group Member (not being an Excluded Entity) securing Financial Indebtedness owing to another Group Member (not being an Excluded Entity);

 

(h)

a Security Interest existing or created under or in respect of Non-Recourse Debt facilities where the party holding any such Security Interest has security over Project Property or Project Vehicles only but no right of recourse to an Obligor or any Obligor’s other assets;

 

(i)

a Security Interest created on any asset or group of associated assets acquired by a Group Member or developed by a Group Member after 15 June 2005:

 

(i)

for the sole purpose of financing or refinancing that acquisition or development; and

 

(ii)

securing principal moneys not exceeding one hundred per cent (100%) of the cost of that acquisition or development;

 

(j)

a Security Interest existing at the time of acquisition on any asset acquired by a Group Member after 15 June 2005 and not created in contemplation of the acquisition, provided that there is no increase in the amount of the principal moneys secured by that Security Interest;

 

(k)

a Security Interest existing on property of a person immediately prior to its being consolidated with or merged into a Group Member or its becoming a Group Member (by becoming a Subsidiary of the Parent), provided that the Security Interest was not created in contemplation of the consolidation, merger or acquisition and there is no increase in the amount of the principal moneys secured by that Security Interest;

 

(l)

any Security Interest existing at 15 June 2005 provided there is no increase in the amount of the principal moneys secured by that Security Interest;

 

(m)

a Security Interest replacing, renewing, extending or refunding any Security Interest permitted by paragraph (i), (j), (k), (l) or (m), provided that:

 

(i)

the principal moneys secured by such Security Interest immediately prior to such replacement, renewal, extension or refunding is not increased or the maturity thereof reduced; and

 

(ii)

the Security Interest is not extended to any other property;

 

(n)

a Security Interest created with the prior written consent of each Majority Creditor (or in the case of a syndicated facility, an agent or trustee acting on the instructions of the relevant Majority Creditor); or

 

(o)

a Security Interest created by a Group Member over its interest in a joint venture to secure:

 

(i)

its obligations under the joint venture to any other party to the joint venture; or

 

(ii)

its obligations, or the obligations of the joint venture, or the obligations of any entity formed for the purpose of the joint venture, under any agreement (including an agreement relating to financial accommodation) entered into for the purposes of the joint venture,

provided the aggregate amount of Financial Indebtedness of the Group (excluding intra-Group transactions and Financial Indebtedness of the Excluded Entities) secured by all such Permitted Security Interests granted in favour of persons outside the Group may not exceed 10% of the total assets of the Group (excluding the Excluded Entities) at any time.

Potential Event of Default means an event or condition the occurrence or existence of which would, with the lapse of time or the giving of notice or both, become an Event of Default.

PPSA means the Personal Property Securities Act 2009 of Australia.

Preferred Stock means any class of capital stock of a corporation that is preferred over any other class of capital stock of such corporation as to payment of dividends or the payment of any amount upon liquidation or dissolution of the corporation.

Previous Deeds has the meaning given to it in the Recitals to this amended and restated deed.

 

Project Activity means the acquisition, development, construction, extension, expansion or improvement of any asset.

Project Debt means with respect to a project or development:

 

(a)

Financial Indebtedness in relation to the acquisition and/or cost of Project Activities;

 

(b)

Financial Indebtedness incurred before or at the time of carrying out Project Activities solely for the purpose of financing or refinancing the acquisition and/or cost of the Project Activities;

 

(c)

any Financial Indebtedness incurred solely to refinance any Financial Indebtedness referred to above or incurred under any successive refinancing;

 

(d)

any liabilities under hedging transactions entered into in connection with any Financial Indebtedness referred to above or any Project Activity;

 

(e)

interest or amounts in the nature of interest, charges, fees, costs of any nature (including break costs or costs arising from changes in law), duties, expenses, currency indemnities, withholding taxes, indirect taxes and other similar indebtedness (however described) which, in any case, is or are incurred or payable in connection with any of the above; or

 

(f)

any guarantee or indemnity securing payment or repayment of any of the above amounts (but not any other Financial Indebtedness),

but does not include any Financial Indebtedness which is used to refinance any assets owned by an Obligor as at 15 June 2005.

Project Property means a Group Member’s assets used or predominantly used in, or generated by, any Project Activities for a project or development including:

 

(a)

assets forming part of or connected with or derived from that project or development; and

 

(b)

proceeds derived from other Project Property relating to that project or development.

Project Vehicle means an entity, which is established for the purposes of, and confines its business operations solely to, owning or producing Project Property, carrying out Project Activities and incurring Project Debt.

Related Entity has the meaning given in the Corporations Act.

Release Request means a letter in the form of schedule 4 (“Form of Release Request”).

Relevant Entity means an Obligor or a Material Subsidiary.

Reporting Date means each 31 March, 30 June, 30 September and 31 December in any year.

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

 

(a)

includes any retention of title agreements arising other than in the ordinary course of business; and

 

(b)

excludes:

 

(i)

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; and

 

(ii)

in respect of any assets located, or taken by legislation to be located, in Australia, any security that is created or provided for by (each as defined in the PPSA) a PPS lease, a commercial consignment or a transfer of an account or chattel paper.

Subordinated Debt means any Financial Indebtedness of any Group Member (other than an Excluded Entity) which is subordinated to the Facilities on terms which each Creditor (or under a syndicated facility, an agent or trustee acting on the instructions of the Majority Creditor) has confirmed are acceptable to it (such confirmation not to be unreasonably withheld or delayed).

Subsidiary in relation to a corporation means a subsidiary of the corporation for the purposes of the Corporations Act.

Tax means any present or future tax (including Indirect Taxes), levy, impost, duty, charge, fee, deduction, compulsory loan or withholding or any income, stamp or transaction duty, tax or charge, in the nature of tax whatsoever called (except if imposed on, or calculated having regard to, the net income of a Creditor) and whether imposed, levied, collected, withheld or assessed by any Government Agency and includes, but is not limited to, any penalty, fine, charge, fee, interest or other amount payable in connection with failure to pay or delay in paying the same.

Termination Date in respect of a Facility Agreement, means the termination date, maturity date, final repayment date, final redemption date or other final payment date (howsoever described) of a Facility as defined in the relevant Facility Agreement.

Transaction Document means each of:

 

(a)

this amended and restated deed;

 

(b)

each Facility Agreement;

 

(c)

each Facility Nomination Letter;

 

(d)

each New Borrower Deed Poll;

 

(e)

each New Guarantor Deed Poll;

 

(f)

each Deed of Release;

 

(g)

any other document agreed to be a Transaction Document by the Obligors’ Agent or the Parent and a Creditor; and

 

(h)

any document given under or entered into connection with any of the above documents or entered into for the purpose of amending or novating any of the above.

US$, USD or US Dollars means the lawful currency of the United States of America.

Wholly Owned Subsidiary has the meaning given in section 9 of the Corporations Act.

 

Winding Up means, in respect of a person, the occurrence of any one or more of the following events in relation to that person:

 

(a)

a final court order is entered that it be wound up or declared bankrupt;

 

(b)

a liquidator (excluding a provisional liquidator) is appointed to it and the appointment is not subsequently terminated;

 

(c)

a court declaration of bankruptcy is made in relation to it and is not subsequently withdrawn, struck out or dismissed, vacated or reversed;

 

(d)

the liquidation of that person;

 

(e)

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

 

(f)

any comparable action occurs under the law of any competent jurisdiction which has a substantially similar effect to any of the above paragraphs (a) to (e) of this definition,

and an order shall be deemed to be final when timely-commenced proceedings for review of such an order have been concluded without such order being subsequently dismissed, withdrawn, struck out, vacated or reversed, and the time for commencing any further proceeding for review of such order has expired.

 

1.2

References to certain general terms

Unless the contrary intention appears, a reference in a Transaction Document to:

 

(a)

a group of persons is to each of them individually only, although a reference to the “Guarantors” is a reference to any two or more of them jointly and to each of them individually;

 

(b)

an agreement, representation or warranty in favour of two or more persons is for the benefit of them jointly and each of them individually;

 

(c)

an agreement, representation or warranty by two or more persons binds each of them individually only, although in the case of the Guarantors, binds them jointly and each of them individually;

 

(d)

anything (including an amount) is a reference to the whole and each part of it (but nothing in this clause 1.2(d) implies that performance of part of an obligation constitutes performance of the obligation);

 

(e)

a document (including this amended and restated deed) includes any variation, supplement to, novation or replacement of it;

 

(f)

law includes (without limitation) common law, principles of equity, and laws made by any legislative body of any jurisdiction (and references to any statute, regulation or by-law include any consolidation, modification, re-enactment or replacement of or any provision substituted for, and all statutory and subordinate instruments issued under such statute, regulation or by-law or such provision);

 

(g)

an accounting term is a reference to that term as it is used in GAAP;

 

(h)

the word “person” includes an individual, a firm, a body corporate, a partnership, a joint venture, an unincorporated association and any Government Agency;

 

(i)

a particular person includes a reference to the person’s executors, administrators, successors, substitutes (including persons taking by novation) and assigns;

 

(j)

the words “including”, “for example” or “such as” when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind;

 

(k)

other parts of speech and grammatical forms of a word or phrase defined in this amended and restated deed have a corresponding meaning;

 

(l)

an agreement includes an undertaking, deed, agreement or legally enforceable arrangement or understanding whether or not in writing;

 

(m)

a reference to a document includes any agreement in writing, or any certificate, notice, instrument or other document of any kind;

 

(n)

a reference to a body, other than a party to, or a beneficiary of, a Transaction Document (including an institute, association or authority) whether statutory or not:

 

(i)

that ceases to exist; or

 

(ii)

whose powers or functions are transferred to another body,

 

is a reference to the body that replaces it or any body that substantially succeeds to its powers or functions; and

 

(o)

“continuing” or “subsisting”, in relation to an Event of Default or Potential Event of Default, means an Event of Default or Potential Event of Default (as the case may be) that has not been waived in writing or remedied.

 

1.3

Numbers

In a Transaction Document, the singular includes the plural and vice versa.

 

1.4

Headings

In a Transaction Document, headings (including those in brackets at the beginning of paragraphs) are for convenience only and do not affect the interpretation of the Transaction Document.

 

1.5

Conflict

Even if any other Transaction Document is not expressly made subject to this amended and restated deed and despite the time and date of its execution, where a conflict arises between the provisions of this amended and restated deed and any other Transaction Document, the provisions of this amended and restated deed shall prevail unless the relevant provision in the other Transaction Document includes words substantially to the effect of “Despite the terms of the Common Terms Deed Poll”.

 

1.6

Shareholder ratification

Each Obligor which is a shareholder of another company (a “Relevant Company”) which is, or is to become, an Obligor, ratifies and approves in its capacity as a shareholder of that Relevant Company, the execution and performance by each such Relevant Company of each Transaction Document to which it is a party.

 

1.7

Borrowers severally liable only

Notwithstanding any other provision of this or any other Transaction Document, no Borrower is liable under the Transaction Documents for any obligation of another Borrower (including, without limitation, any obligation to indemnify a Creditor).

 

1.8

Effective Date

The terms of this amended and restated deed will take effect (and prevail over the terms of the Previous Deeds) as between the Obligors and a Creditor on and from the Effective Date. ² Until that time the Previous Deeds remain in full force and effect and will apply as between the Obligors and that Creditor.

 

1.9

Guarantee Trust Deed and Intercreditor Deed

In accepting nomination under a Facility Nomination Letter, each Creditor acknowledges that on and from the Effective Date:

 

(a)

neither the Guarantee Trust Deed nor the Intercreditor Deed apply to any Facility; and

 

(b)

neither any Creditor nor any Facility Agreement continues to be, or will be, nominated under:

 

(i)

a “Beneficiary Nomination Letter” (as that term is defined in the Guarantee Trust Deed); or

 

(ii)

a “Financier Nomination Letter” (as that term is defined in the Intercreditor Deed).

 

1.10

JHT Undertaking

In accepting nomination under a Facility Nomination Letter, each Creditor acknowledges that on and from the Effective Date the JHT Undertaking is withdrawn and no longer applies for the benefit of that Creditor.

 

 

 

 

2	29 January 2013 has been specified by the Obligors’ Agent as the Effective Date.

 

Part 1 Creditors and Facilities

 

 

 

2	Creditors and Facilities

 

2.1

Deed for benefit of Creditors

This amended and restated deed is for the benefit of, and is enforceable by, each Creditor from time to time even though it is not a party to, or is not in existence at the time of execution and delivery of this amended and restated deed, in relation to the Facility under which that Creditor is entitled and each Transaction Document under which that Creditor has benefits or obligations.

 

2.2

Becoming a Creditor

The benefit and obligations of this amended and restated deed may be extended to any other person (and such person shall become a Creditor) in relation to any other document (and such document shall become a Facility Agreement), by the Obligors’ Agent signing and delivering to that Creditor (or, in the case of a syndicated facility, the facility agent) a Facility Nomination Letter and the Creditor (or in the case of a syndicated facility, the facility agent) countersigning such Facility Nomination Letter.

 

2.3

Authorisation by each other Obligor

Each Obligor irrevocably authorises the Obligors’ Agent to sign and deliver any Facility Nomination Letter and acknowledges and confirms that the provisions of this amended and restated deed which are for the benefit of the Creditors will extend to the Facility Agreement so nominated in that Facility Nomination Letter.

 

2.4

Removal of benefit for a particular Creditor

Subject to reinstatement of a Creditor’s rights under this deed pursuant to clause 14.4 (“Reinstatement of rights”), this amended and restated deed ceases to be for the benefit of, and enforceable by, a Creditor if at any time:

 

(a)

all Outstanding Moneys owing to that Creditor have been fully and finally paid;

 

(b)

that Creditor is not committed to providing further financial accommodation to a Borrower pursuant to any Facility; and

 

(c)

this is confirmed in writing by the Creditor. If requested by an Obligor, a Creditor will promptly confirm in writing that this amended and restated deed has ceased to be for the benefit of, and enforceable by, that Creditor.

A facility agent under a syndicated facility shall cease to be a Creditor if it ceases to be the agent under the relevant syndicated facility or each Creditor under that Facility has ceased to be a Creditor.

 

Part 2 Standard terms - all Facilities

 

 

 

3	Conditions precedent

 

3.1

Conditions to first drawdown

A Creditor’s obligation to make available the first drawdown under a Facility Agreement entered into on or after the Effective Date is subject to the following conditions precedent:

 

(a)

the Creditor (or, in the case of a syndicated facility, the facility agent) has received each of the following items in form and substance satisfactory to the Creditor or the facility agent (as the case may be):

 

(i)

(verification certificate) to the extent not previously provided to the Creditor in relation to this amended and restated deed, a certificate in relation to each Obligor given by a director of the relevant Obligor substantially in the form of schedule 1 (“Verification Certificate”) with the attachments referred to therein;

 

(ii)

(legal opinions) to the extent not previously provided to the Creditor in relation to this amended and restated deed, closing legal opinions in respect of this amended and restated deed and the Facility Agreement from:

 

(A)

Arthur Cox, Irish legal advisers to JHIFL, JHIGL and the Parent;

 

(B)

McDonald Carano & Wilson, United States of America legal advisers to JHBP;

 

(C)

Conyers Dill & Pearman Limited, special Bermuda legal advisers to JHT;

 

(D)

King & Wood Mallesons, Australian legal advisers to the Obligors; and

 

(E)

if a new Borrower is party to a Facility Agreement, legal advisers to the new Borrower of recognised standing and acceptable to the Creditor;

 

(iii)

(executed documents):

 

(A)

to the extent not previously provided to the Creditor in relation to this amended and restated deed, a certified copy of this amended and restated deed;

 

(B)

original counterparts of the Facility Agreement; and

 

(C)

original counterparts of a Facility Nomination Letter;

 

executed by all relevant Obligors or the Obligors’ Agent, as the case may be; and

 

(iv)

(fees) evidence of instructions issued by the Obligors’ Agent to pay all fees and expenses which are due under the Facility Agreement on or before the first drawdown;

 

(b)

(KYC) if, in relation to the relevant Facility, a Creditor is required to comply with any KYC Checks and the information necessary is not already available to it and to the extent not previously provided to the Creditor under this amended and restated deed or under any other agreement, such documentation and other evidence as is reasonably requested to enable the Creditor to so comply, each in form and substance satisfactory to the Creditor (acting reasonably);

 

(c)

(representations true) the representations and warranties by each Obligor in clause 8.1 (“Representations and warranties”) are true as at the date of the first drawdown notice and on the date of the first drawdown; and

 

(d)

(no default) no Event of Default or Potential Event of Default subsists at the date of the first drawdown notice or on the date of the first drawdown or will result from the provision of the requested financial accommodation.

 

3.2

Conditions to subsequent drawdowns

The Creditor need not provide any financial accommodation subsequent to the first drawdown under a Facility Agreement unless:

 

(a)

(representations true) the representations and warranties by each Obligor in clause 8.1 (“Representations and warranties”) are true as at the date of the drawdown notice and on the drawdown date, as though they had been made at that date in respect of the facts and circumstances then subsisting; and

 

(b)

(no default) no Event of Default or Potential Event of Default subsists at the date of the drawdown notice or on the drawdown date or will result from the provision of the requested financial accommodation.

 

 

 

4

Payments

 

4.1

Manner of payment

Each Obligor agrees to make payments (including by way of reimbursement) under each Transaction Document:

 

(a)

on the due date (or, if that is not a Business Day, on the next Business Day unless that day falls in the following month or after the Termination Date for the relevant Facility, in which case, on the previous Business Day);

 

(b)

at the time which is customary at the time for settlement of transactions in the relevant currency in the place for payment (if any) specified in the relevant Facility Agreement;

 

(c)

in the Due Currency in immediately available funds;

 

(d)

in full without set-off or counterclaim, and without any deduction in respect of Taxes unless prohibited by law and then in accordance with relevant provisions of the Transaction Documents dealing with withholding taxes; and

 

(e)

to the applicable Creditor (or, in the case of a Creditor under a syndicated facility, the facility agent on its behalf) by making payment to the account nominated by the Creditor or by payment as the Creditor otherwise directs.

 

If a Creditor directs an Obligor to pay a particular party or in a particular manner, the Obligor is taken to have satisfied its obligation to the Creditor by paying in accordance with the direction.

An Obligor satisfies a payment obligation only when the Creditor (or, in the case of a Creditor under a syndicated facility, the facility agent on its behalf) or the person to whom it has directed payment actually receives the amount.

 

4.2

Currency of payment

Each Obligor waives any right it has in any jurisdiction to pay an amount other than in Due Currency. However, if a Creditor receives an amount in a currency other than the Due Currency:

 

(a)

it may convert the amount received into the Due Currency (even though it may be necessary to convert through a third currency to do so) on the day and at such rates (including spot rate, same day value rate or value tomorrow rate) as it reasonably considers appropriate. It may deduct its usual Costs in connection with the conversion; and

 

(b)

the Obligor satisfies its obligation to pay in the Due Currency only to the extent of the amount of the Due Currency obtained from the conversion after deducting the Costs of the conversion. Any surplus amount will be paid promptly by that Creditor to the relevant Obligor.

 

 

 

5	Withholding tax

 

5.1

Payments by Obligor

If a law requires an Obligor to deduct or withhold an amount in respect of Taxes (other than Indirect Taxes) in respect of a payment under any Transaction Document such that a Creditor (“Indemnified Party”) would not actually receive on the due date the full amount provided for under the Transaction Document, then:

 

(a)

the Obligor agrees to deduct the amount for such Taxes and any further deduction applicable to any further payment due under paragraph (c) below;

 

(b)

the Obligor agrees to pay an amount equal to the amount deducted or withheld to the relevant authority in accordance with applicable law; and

 

(c)

unless the Tax is an Excluded Tax, the amount payable is increased so that, after making the deduction or withholding and further deductions or withholdings applicable to additional amounts payable under this clause 5.1(c), the Indemnified Party is entitled to receive (at the time the payment is due) the amount it would have received if no deductions or withholdings had been required.

 

5.2

Payments by a facility agent to Creditors

If a law requires a facility agent under a syndicated facility to deduct or withhold an amount in respect of Taxes (other than Indirect Taxes) in respect of a payment by the facility agent to a Creditor under a syndicated facility such that the Creditor would not actually receive on the due date the full amount provided for under the syndicated facility, then:

 

(a)

the facility agent must deduct or withhold the amount for such Taxes and any further deduction or withholding applicable to any further payment due under paragraph (c) below;

 

(b)

the facility agent must pay an amount equal to the amount deducted or withheld to the relevant authority in accordance with applicable law and promptly give the original receipts to the relevant Borrower;

 

(c)

unless the Tax is an Excluded Tax, the amount payable is increased so that, after making the deduction or withholding and further deductions or withholdings applicable to additional amounts payable under this clause 5.2(c), the Creditor is entitled to receive (at the time the payment is due) the amount it would have received if no deductions or withholdings had been required; and

 

(d)

unless the Tax is an Excluded Tax, the relevant Borrower must pay to the facility agent an amount equal to any deduction or withholding which the facility agent is required to make under this clause 5.2.

 

5.3

Tax credit

If and to the extent that any Creditor is able in its opinion to apply for or otherwise take advantage of any offsetting tax credit, tax rebate or other similar tax benefit out of or in conjunction with any deduction or withholding which gives rise to an obligation on any Obligor to pay any additional amount pursuant to clause 5.1 (“Payments by Obligor”) or 5.2(d) (“Payments by a facility agent to Creditors”), that Creditor shall:

 

(a)

give notice thereof to the Obligors’ Agent and take steps to obtain that credit, rebate or benefit; and

 

(b)

to the extent that in its opinion it can do so without prejudice to the retention of the credit, rebate or benefit, and upon receipt thereof, reimburse to the Obligor such amount of the credit, rebate or benefit as that Creditor shall, in its opinion (acting reasonably), have determined to be attributable to the deduction or withholding. In complying with this clause 5.3(b), no Creditor need disclose to any Obligor information about their tax affairs or order them in a particular way.

 

5.4

Early repayment or redemption

Without limiting the other provisions of this clause 5, if a Borrower is required to pay any amount to a Creditor or facility agent under a syndicated facility under this clause 5, that Borrower may elect to repay or redeem early all of that Creditor’s outstandings under the applicable Facility which is affected by the event or events referred to in clause 5.1 (“Payments by Obligor”) or 5.2 (“Payments by a facility agent to Creditors”).

 

 

 

6	Increased costs

 

6.1

Compensation

Subject to clause 6.2 (“Excluded matters”), the relevant Borrower agrees to compensate a Creditor on 30 days written notice if the Creditor determines that:

 

(a)

a Directive, or change in Directive, in either case applying for the first time after the date of the relevant Facility Agreement;

 

(b)

a change in a Directive’s interpretation or administration by an authority after the date of the relevant Facility Agreement; or

 

(c)

compliance by the Creditor or any of its Related Entities with any such Directive, changed Directive or changed interpretation or administration,

directly or indirectly:

 

(i)

increases the effective cost to that Creditor of making, funding or maintaining the relevant Facility or its proportion of the Facility; or

 

(ii)

reduces any amount paid or payable to, or received or receivable by, that Creditor or the effective return to that Creditor in connection with the relevant Facility.

In this clause 6.1 a reference to a Directive:

 

(A)

does not include a Directive imposing or changing the basis of a Tax on the overall net income of the Creditor; and

 

(B)

in the case of a Creditor incorporated in the United States, for the avoidance of doubt and notwithstanding anything in a Transaction Document to the contrary, shall be deemed to include the United States Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and all requests, rules, guidelines or directives under it or issued in connection with it, regardless of the date enacted, adopted or issued.

Compensation need not be in the form of a lump sum and may be demanded as a series of payments.

Any demand under this clause 6.1 is to be made to the Obligors’ Agent by the Creditor (except in the case of a Creditor under a syndicated facility, in which case demand must be made by the facility agent).

 

6.2

Excluded matters

A notice under clause 6.1 (“Compensation”) may not claim compensation for an increase or reduction:

 

(a)

suffered more than 180 days before the date of the notice, except to the extent that the event or circumstance giving rise to the increased cost or reduction is that a Directive is applied retrospectively and the notice was given by the Creditor no later than 120 days after it became aware of that event or circumstance and was able to quantify the amount for which it is entitled to be compensated under clause 6.1 (“Compensation”);

 

(b)

attributable to a deduction in respect of Taxes required by law to be made by an Obligor;

 

(c)

compensated for by a payment by an Obligor under a tax indemnity clause in a Transaction Document (or would have been compensated for under such clause) but was not so compensated solely because one of the exclusions in that clause applied);

 

(d)

attributable to the wilful breach by the relevant Creditor of any law; or

 

(e)

which, in the case of a Facility Agreement entered into on or after the date of this amended and restated deed, is specified in that Facility Agreement as an excluded matter for the purposes of this clause 6.2(e).