MULTICURRENCY LOAN FACILITY AGREEMENT FACILITY AGREEMENT dated 18 August 2005 for XSTRATA (SCHWEIZ) AG arranged by Deutsche bank ag, london branch j.p. morgan plc with DEUTSCHE BANK AG, LONDON BRANCH acting as Facility Agent Ref: JCT/JLM

Exhibit 8

Confidential Treatment Requested.
Confidential portions of this
document have been redacted and
have been separately filed with the
Commission.

EXECUTION COPY

MULTICURRENCY LOAN FACILITY AGREEMENT

 

$600,000,000

FACILITY AGREEMENT

dated 18 August 2005

 

for

 

XSTRATA (SCHWEIZ) AG

 

arranged by
Deutsche bank ag, london branch
▇.▇. ▇▇▇▇▇▇ plc

 

with

 

DEUTSCHE BANK AG, LONDON BRANCH
acting as Facility Agent

 

Ref: JCT/JLM

CONTENTS

CLAUSE				PAGE
SECTION 1 INTERPRETATION
1.		DEFINITIONS AND INTERPRETATION			1
SECTION 2 THE FACILITY
2.		THE FACILITY			16
3.		PURPOSE			17
4.		CONDITIONS OF UTILISATION			17
SECTION 3 UTILISATION
5.		UTILISATION			19
6.		OPTIONAL CURRENCIES			20
SECTION 4 REDUCTION, REPAYMENT, PREPAYMENT AND CANCELLATION
7.		REPAYMENT AND REDUCTION OF LOANS			23
8.		PREPAYMENT AND CANCELLATION			23
SECTION 5 COSTS OF UTILISATION
9.		INTEREST			28
10.		INTEREST PERIODS			29
11.		CHANGES TO THE CALCULATION OF INTEREST			30
12.		FEES			32
SECTION 6 ADDITIONAL PAYMENT OBLIGATIONS
13.		TAX GROSS UP AND INDEMNITIES			33
14.		INCREASED COSTS			35
15.		OTHER INDEMNITIES			36
16.		MITIGATION BY THE LENDERS			37
17.		COSTS AND EXPENSES			38
SECTION 7 GUARANTEE
18.		GUARANTEE AND INDEMNITY			39

CLAUSE				PAGE
SECTION 8 REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
19.		REPRESENTATIONS			42
20.		INFORMATION UNDERTAKINGS			45
21.		FINANCIAL COVENANTS			49
22.		GENERAL UNDERTAKINGS			49
23.		EVENTS OF DEFAULT			57
SECTION 9 CHANGES TO PARTIES
24.		CHANGES TO THE LENDERS			61
25.		CHANGES TO THE OBLIGORS			64
SECTION 10 THE FINANCE PARTIES
26.		ROLE OF THE FACILITY AGENT AND THE MANDATED LEAD ARRANGERS			66
27.		CONDUCT OF BUSINESS BY THE FINANCE PARTIES			71
28.		SHARING AMONG THE FINANCE PARTIES			71
SECTION 11 ADMINISTRATION
29.		PAYMENT MECHANICS			74
30.		SET-OFF			76
31.		NOTICES			76
32.		CALCULATIONS AND CERTIFICATES			78
33.		PARTIAL INVALIDITY			78
34.		REMEDIES AND WAIVERS			79
35.		AMENDMENTS AND WAIVERS			79
36.		COUNTERPARTS			79
SECTION 12 GOVERNING LAW AND ENFORCEMENT
37.		GOVERNING LAW			80
38.		ENFORCEMENT			80
39.		EXECUTIVE PROCEEDINGS			80

THE SCHEDULES

SCHEDULE		PAGE
SCHEDULE 1 THE ORIGINAL PARTIES			82
SCHEDULE 2 REQUESTS			88
SCHEDULE 3 MANDATORY COST FORMULAE			90
SCHEDULE 4 FORM OF TRANSFER CERTIFICATE			93
SCHEDULE 5 FORM OF ACCESSION LETTER			95
SCHEDULE 6 FORM OF COMPLIANCE CERTIFICATE			96
SCHEDULE 7 TIMETABLES			98
SCHEDULE 8 FORM OF RESIGNATION LETTER			100

THIS AGREEMENT (the “Agreement”) is dated 18 August 2005 and made between:

(1)		XSTRATA (SCHWEIZ) AG (the “Company”);
(2)		XSTRATA PLC (the “Parent”);
(3)		XSTRATA (SCHWEIZ) AG as original borrower (the “Original Borrower”);
(4)		THE SUBSIDIARIES of the Company listed in Part I of Schedule 1 as original guarantors (together with the Company and the Parent, the “Original Guarantors”);
(5)		DEUTSCHE BANK AG, LONDON BRANCH and ▇.▇. ▇▇▇▇▇▇ PLC (whether acting individually or together the “Mandated Lead Arrangers”);
(6)		THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 as lenders (the “Original Lenders”); and
(7)		DEUTSCHE BANK AG, LONDON BRANCH as agent of the other Finance Parties (the “Facility Agent”).

IT IS AGREED as follows:

SECTION 1
INTERPRETATION

1.		Definitions and interpretation
1.1		Definitions

In this Agreement:

“Acceleration Date” means the date (if any) on which the Facility Agent gives a notice under Clause 23.16 (Acceleration).

“Accession Letter” means a document substantially in the form set out in Schedule 5 (Form of Accession Letter).

“Accounting Half-year” means each period of approximately 26 weeks ending on 30 June and 31 December in any financial year of the Company.

“Additional Borrower” means a company which becomes an Additional Borrower in accordance with Clause 25 (Changes to the Obligors).

“Additional Cost Rate” has the meaning given to it in Schedule 3 (Mandatory Cost Formulae).

“Additional Guarantor” means a company which becomes an Additional Guarantor in accordance with Clause 25 (Changes to the Obligors).

“Additional Obligor” means an Additional Borrower or an Additional Guarantor.

“Affiliate” means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.

“Applicable Accounting Principles” means:

	(a)		in relation to the Original Financial Statements, UK GAAP;
	(b)		in relation to the Parent, UK GAAP; and

(c)

in relation to any other member of the Group, GAAP.

“Authorisation” means:

	(a)		an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration; or
	(b)		in relation to anything which will be fully or partly prohibited or restricted by law if a governmental authority or entity intervenes or acts in any way within a specified period after lodgement, filing, registration or notification, the expiry of that period without intervention or action.

“Availability Period” means the period from and including the date of this Agreement to and including the date which is 30 days after the date of this Agreement.

“Available Commitment” means a Lender’s Commitment minus:

	(a)		the Base Currency Amount of its participation in any outstanding Loans; and
	(b)		in relation to any proposed Loan, the Base Currency Amount of its participation in any Loans that are due to be made under the Facility on or before the proposed Utilisation Date.

“Available Facility” means the aggregate for the time being of each Lender’s Available Commitment.

“Bank” means a person which in accordance with the explanatory Note No. S-02.128(1.2000), in conjunction with Note No. S-02.123 dated 22 September 1986, of the Swiss Federal Tax Administration is in the place at and from which it performs or will perform its obligations and exercises its rights hereunder and in the place of the office in which it books the relevant Loan:

	(a)		qualified as a bank pursuant to the laws of the relevant jurisdiction; and
	(b)		carries on a genuine banking activity.

“Base Currency” or “$” means United States dollars.

“Base Currency Amount” means, in relation to a Loan, the amount specified in the Utilisation Request delivered by a Borrower for that Loan (or, if the amount requested is not denominated in the Base Currency, that amount converted into the Base Currency at the Facility Agent’s Spot Rate of Exchange on the date which is three Business Days before the Utilisation Date or, if later, on the date the Facility Agent receives the Utilisation Request) adjusted to reflect any repayment, prepayment, consolidation or division of the Loan.

“Borrower” means the Original Borrower or an Additional Borrower.

“Break Costs” means the amount (if any) by which:

(a)

the interest which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

     exceeds:

(b)

the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.

“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in London and:

	(a)		(in relation to any date for payment or purchase of a currency other than euro) the principal financial centre of the country of that currency; or
	(b)		(in relation to any date for payment or purchase of euro) any TARGET Day.

“Canadian dollars” or “Can $” means the lawful currency for the time being of Canada.

“Commitment” means:

	(a)		in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading “Commitment” in Part II of Schedule 1 (The Original Lenders) and the amount of any other Commitment transferred to it under this Agreement; and
	(b)		in relation to any other Lender, the amount in the Base Currency of any Commitment transferred to it under this Agreement,

to the extent not cancelled, reduced or transferred by it under this Agreement.

“Compliance Certificate” means a certificate substantially in the form set out in Schedule 6 (Form of Compliance Certificate).

“Confidentiality Undertaking” means a confidentiality undertaking substantially in the current recommended form of the Loan Market Association or in any other form agreed between the Company and the Facility Agent.

“Consolidated Borrowings” means, as at any particular time, the aggregate outstanding principal, capital or nominal amount (and any fixed or minimum premium payable on prepayment or redemption) of the Indebtedness for Borrowed Money of members of the Group (other than in respect of Non Recourse Project Finance Debt).

For this purpose, any amount outstanding or repayable in a currency other than US dollars shall on that day be taken into account in its US dollar equivalent at the rate of exchange used for the purpose of preparing the relevant balance sheet.

“Consolidated Net Worth” means, at any time, the aggregate of the amounts paid up or credited as paid up on the issued share capital of the Parent (other than any redeemable shares) and the aggregate amount of the reserves of the Group including:

	(a)		share capital;
	(b)		capital reserves; and
	(c)		retained earnings,

less (but without double counting) any amount included in the above which is attributable to:

	(i)		goodwill or other intangible assets acquired after the date of the Original Financial Statements;
	(ii)		Non Recourse Project Companies; and
	(iii)		(to the extent included) any amounts arising from an upward revaluation of assets made at any time after the date to which the Original Financial Statements are made up unless such revaluation is performed by independent professional valuers or in accordance with UK GAAP,

but ignoring any variation in the credit or debit balances on the Group consolidated profit and loss account since the date of the then latest audited consolidated balance sheet of the Group except to the extent reflected in any later Group consolidated profit and loss statement delivered to the Facility Agent under Clause 20 (Information Undertakings).

“Default” means an Event of Default or any event or circumstance specified in Clause 23 (Events of Default), which would (with the lapse of time, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.

“EBITDA” means, in relation to any Relevant Period, the total consolidated operating profit of the Group (other than Non Recourse Project Companies) for that Relevant Period:

(a)

before taking into account:

	(i)		goodwill amortisation;
	(ii)		Interest Expense;
	(iii)		Tax;
	(iv)		all extraordinary and exceptional items;

	(b)		after adding back all amounts provided for depreciation and amortisation;
	(c)		before any adjustment for amounts (negative or positive) included in the above which are attributable to minority interests in any member of the Group.

“Environment” means living organisms including the ecological systems of which they form part and the following media:

	(a)		air (including air within natural or man-made structures, whether above or below ground);
	(b)		water (including territorial, coastal and inland waters, water under or within land and water in drains and sewers); and
	(c)		land (including land under water).

“Environmental Law” means all laws and regulations of any relevant jurisdiction which:

	(a)		have as a purpose or effect the protection of, and/or prevention of harm or damage to, the Environment;
	(b)		provide remedies or compensation for harm or damage to the Environment; or

(c)

relate to Hazardous Substances or health and safety matters.

“Environmental Licence” means any Authorisation required at any time under Environmental Law.

“Environmental Policy” means the environmental policy of the Group in the Agreed Form.

“EURIBOR” means, in relation to any Loan in euro:

	(a)		the applicable Screen Rate; or
	(b)		(if no Screen Rate is available for the Interest Period of that Loan) the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent at its request quoted by the Reference Banks to leading banks in the European interbank market,

as of the Specified Time on the Quotation Day for the offering of deposits in euro for a period comparable to the Interest Period of the relevant Loan.

“Event of Default” means any event or circumstance specified as such in Clause 23 (Events of Default).

“Existing Facility Agreement” means the $1,400,000,000 facility and subscription agreement dated 28 May 2004 between the Company, the Parent, the borrowers and guarantors named in it and the facility agent, the mandated lead arrangers and the lenders named in it.

“Facility” means the 364 day term loan facility (with extension option) made available under this Agreement as described in Clause 2.1 (The Facility).

“Facility Agent’s Spot Rate of Exchange” means the Facility Agent’s spot rate of exchange for the purchase of the relevant currency with the Base Currency in the London foreign exchange market at or about 11.00 a.m. on a particular day.

“Facility Office” means the office or offices notified by a Lender to the Facility Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement.

“Fee Letter” means any letters dated prior to or on or about the date of this Agreement between, as the case may be, the Mandated Lead Arrangers, the Facility Agent and the Company setting out any of the fees referred to in Clause 12 (Fees).

“Finance Document” means this Agreement, any Fee Letter, any Accession Letter, any Confidentiality Undertaking and any other document designated as such by the Facility Agent and the Company.

“Finance Party” means the Facility Agent, the Mandated Lead Arrangers or a Lender.

“Financial Indebtedness” means any indebtedness for or in respect of:

	(a)		moneys borrowed;
	(b)		any amount raised by acceptance under any acceptance credit facility or any amount raised under any ▇▇▇▇ facility;

	(c)		any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
	(d)		the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP (in the jurisdiction in which such liability is incurred), be treated as a finance or capital lease;
	(e)		receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
	(f)		any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;
	(g)		any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account);
	(h)		shares which are expressed to be redeemable on or prior to the Termination Date;
	(i)		any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and
	(j)		the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (i) above.

“GAAP” means, in relation to any member of the Group, generally accepted accounting principles, standards and practices in the jurisdiction of incorporation of that member of the Group.

“Government Agency” means any government, or any governmental, semi-governmental or judicial entity or authority, including any self-regulating authority established under any statute.

“Group” means the Parent and its Subsidiaries for the time being.

“Guarantor” means an Original Guarantor or an Additional Guarantor.

“Hazardous Substance” means any waste, pollutant, contaminant or other substance (including any liquid, solid, gas, ion, living organism or noise) that may be harmful to human health or other life or the Environment or a nuisance to any person or that may make the use or ownership of any affected land or property more costly.

“HDSA Person” means an historically disadvantaged person within the meaning of the MPRD Act.

“Holding Company” means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.

“Indebtedness for Borrowed Money” means Financial Indebtedness save for any indebtedness referred to in paragraphs (g) and (i) and (to the extent it relates to indebtedness of a member of the Group referred to in paragraph (g) or (i)) (j) of the definition of “Financial Indebtedness”.

“Interest Expense” means, in relation to any Relevant Period, the aggregate amount of interest and amounts in the nature of interest, or having a similar purpose or effect to interest, which in accordance with UK GAAP would be included in the consolidated profit and loss statement as having been paid or incurred (but excluding amounts incurred in respect of Non Recourse Project Finance Debt), and calculated on a gross basis without taking into account any interest income of any member of the Group and includes, but is not limited to:

	(a)		any dividend payable on any share the obligations in respect of which constitute Financial Indebtedness;
	(b)		any discount on any bills of exchange or bonds, note or other instruments drawn, accepted or endorsed by any member of the Group;
	(c)		any line, facility, commitment, acceptance, discount, guarantee or other fees and amounts incurred on a regular or recurring basis payable in relation to Financial Indebtedness but not including establishment or arrangement fees payable once only; and
	(d)		finance lease charges (but excluding finance lease charges relating to principal and excluding amounts incurred in respect of Non Recourse Project Finance Debt).

“Interest Period” means, in relation to a Loan, each period determined in accordance with Clause 10 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 9.3 (Default interest).

“Joint Venture” means any joint venture entity, whether a company, unincorporated firm, undertaking, joint venture, association, partnership or any other entity, the ownership of or other interest in which does not require the holder to consolidate the results of the Joint Venture with its own as a Subsidiary.

“Lender” means:

	(a)		any Original Lender; and
	(b)		any bank or financial institution which has become a Lender in accordance with Clause 24 (Changes to the Lenders),

which in each case has not ceased to be a Lender in accordance with this Agreement.

“LIBOR” means, in relation to any Loan:

	(a)		the applicable Screen Rate; or
	(b)		(if no Screen Rate is available for the currency or Interest Period of that Loan) the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent at its request quoted by the Reference Banks to leading banks in the London interbank market,

as of the Specified Time on the Quotation Day for the offering of deposits in the currency of that Loan and for a period comparable to the Interest Period for that Loan.

“Loan” means a loan made or to be made under the Facility or the principal amount outstanding for the time being of that loan.

“Majority Lenders” means a Lender or Lenders whose Available Commitments and participations in the Loans then outstanding aggregate more than [***] per cent. of the Available Facility and all the Loans then outstanding.

“Mandatory Cost” means the percentage rate per annum calculated by the Facility Agent in accordance with Schedule 3 (Mandatory Cost Formulae).

“Margin” means 0.40 per cent. per annum.

“Material Adverse Effect” means a material adverse effect on:

	(a)		the consolidated financial condition, prospects or business of the Group;
	(b)		the ability of any Obligor to perform or comply with any of its obligations under any Finance Document; or
	(c)		the validity, legality or enforceability of any Finance Document.

“Material Subsidiary” means at any time a Subsidiary of the Parent whose total assets or total revenue as at the date at which its latest audited financial statements were prepared or, as the case may be, for the financial period to which those financial statements relate, account for [***] per cent. or more of the Total Assets or Total Revenue of the Group (calculated by reference to the then latest audited consolidated financial statements of the Group).

For this purpose:

	(a)		the total assets of a Subsidiary of the Parent will be determined from its latest financial statements;
	(b)		the Total Assets will be determined from the latest audited consolidated accounts of the Parent adjusted (where appropriate) to reflect the total assets of any company or business subsequently acquired or disposed of;
	(c)		if a Material Subsidiary disposes of all or substantially all of its assets to another Subsidiary of the Parent it will immediately cease to be a Material Subsidiary and the other Subsidiary (if it is not already) will immediately become a Material Subsidiary.

If there is a dispute as to whether or not a company is a Material Subsidiary, a certificate of the auditors of the Parent will be, in the absence of manifest error, conclusive.

“Month” means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:

	(a)		if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day; and
	(b)		if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month.

The above rules will only apply to the last Month of any period.

“MPRD Act” means the South African Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002).

“Non-Bank” means a person which is not a Bank.

“Non Recourse Project Company” means a Project Company all of whose Financial Indebtedness is Non Recourse Project Finance Debt.

“Non Recourse Project Finance Debt” means Financial Indebtedness of a Project Company falling within subparagraph (a) of the definition of Project Finance Debt.

“Obligor” means a Borrower or a Guarantor.

“Optional Currency” means a currency (other than the Base Currency) which complies with the conditions set out in Clause 4.3 (Conditions relating to Optional Currencies).

“Original Financial Statements” means the audited consolidated financial statements of the Group for the financial year ended 31 December 2004.

“Original Obligor” means the Original Borrower or an Original Guarantor.

“Participating Member State” means any member state of the European Communities that adopts or has adopted the euro as its lawful currency in accordance with legislation of the European Community relating to Economic and Monetary Union.

“Party” means a party to this Agreement.

“Permitted Indemnities” means counter-indemnities in relation to guarantees, letters of credit and performance bonds in the ordinary course of business up to in aggregate 5 per cent. of Total Assets.

“Private Placements” means:

	(a)		the $64,000,000 6.79% Series B Guaranteed Senior Unsecured Notes due 3 December 2005 issued by Mount ISA Finance N.V. and guaranteed by Xstrata Queensland Limited (formerly M.I.M. Holdings Limited);
	(b)		the $80,000,000 7.33% Senior Unsecured Notes due 3 December 2006 issued by Xstrata Queensland Limited (formerly M.I.M. Holdings Limited);
	(c)		the $150,000,000 8.50% Series A Senior Notes due 25 June 2008 issued by Xstrata Queensland Limited (formerly M.I.M. Holdings Limited);
	(d)		the $50,000,000 8.63% Series B Senior Notes due 25 June 2011 issued by Xstrata Queensland Limited (formerly M.I.M. Holdings Limited); and
	(e)		the $50,000,000 8.72% Series C Senior Notes due 25 June 2011 issued by Xstrata Queensland Limited (formerly M.I.M. Holdings Limited).

“Project Company” means each of the following:

(a)

any member of the Group (which is not an Obligor) designated by the Company in writing to the Facility Agent (specifying whether or not such company is a Non Recourse Project Company) for the purpose of this paragraph (a) (a “designated company”) and

whose sole activity is or will be the ownership and development and/or operation of a project including without limitation:

	(i)		the discovery, mining, extraction, transportation or development (in each case whether directly or indirectly) of metals or minerals; or
	(ii)		the development or operation of processing facilities (in each case whether directly or indirectly) related to natural resources including, without limitation, metals smelting, processing and refining; and

(b)

any member of the Group otherwise accepted by the Majority Lenders as a Project Company,

provided that the Company may give written notice to the Facility Agent at any time that any Project Company is no longer a Project Company whereupon it shall cease to be a Project Company.

“Project Finance Debt” means Financial Indebtedness of Project Companies either:

	(a)		none of which retains the benefit of any guarantee, bond, security (other than third party security over shares in or debts or other obligations of a Project Company solely to secure that Financial Indebtedness), indemnity or other commitment from another member of the Group to assure the repayment of, or indemnify against loss in respect of non-payment of, that Financial Indebtedness; or
	(b)		some or all of which does so benefit but where the relevant commitment is designed to be withdrawn or cease to apply, in accordance with the terms of that Financial Indebtedness, prior to the repayment of that Financial Indebtedness.

“Quotation Day” means, in relation to any period for which an interest rate is to be determined:

	(a)		(if the currency is euro) two TARGET Days before the first day of that period; or
	(b)		(for any other currency) two Business Days before the first day of that period,

unless market practice differs in the Relevant Interbank Market for a currency, in which case the Quotation Day for that currency will be determined by the Facility Agent in accordance with market practice in the Relevant Interbank Market (and if quotations for that currency and period would normally be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days).

“Reference Banks” means, in relation to EURIBOR, LIBOR and Mandatory Cost, the principal offices of Deutsche Bank AG, London Branch and JPMorgan Chase Bank, National Association or such other banks as may be appointed by the Facility Agent in consultation with the Company.

“Relevant Interbank Market” means, in relation to euro, the European interbank market and, in relation to any other currency, the London interbank market.

“Relevant Period” means

	(a)		each financial year of the Company; and
	(b)		each period beginning on the first day of the second half of a financial year of the Company and ending on the last day of the first half of its next financial year.

		“Repeating Representations” means each of the representations set out in Clause 19 (Representations) other than Clause 19.5 (Validity and admissibility in evidence), Clause 19.6 (Governing law and enforcement), Clause 19.7 (No capital duty, filing or stamp taxes), Clause 19.8 (No default), Clause 19.9 (Information Memorandum), Clause 19.12 (No proceedings pending or threatened), Clause 19.14 (Environmental Laws and Licences) and Clause 19.15 (Environmental releases).
		“Reservations” means the principle that equitable remedies are remedies which may be granted or refused at the discretion of the court and that certain rights may be subject to equitable defences or relief or the general supervisory powers and discretions of the court, the limitation of enforcement by laws relating to bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration and other laws generally affecting the rights of creditors, or by the requirement for any third party consent, authorisation or approval, the time barring of claims, the possibility that an undertaking to assume liability for or to indemnify against non-payment of certain stamp, registration or other Taxes or liability for an award or order for costs or the cost of unsuccessful litigation may be void or unenforceable, defences of set-off or counterclaim and similar principles, rights and defences under the laws of any foreign jurisdictions in which relevant obligations may have to be performed and the possibility that in certain jurisdictions a contractual provision held to contravene public policy in those jurisdictions may be unenforceable in those jurisdictions.
		“Resignation Letter” means the letter substantially in the form set out in Schedule 8 (Form of Resignation Letter).
		“Screen Rate” means:

	(a)		in relation to LIBOR, the British Bankers’ Association Interest Settlement Rate for the relevant currency and period; and
	(b)		in relation to EURIBOR, the percentage rate per annum determined by the Banking Federation of the European Union for the relevant period,

		displayed on the appropriate page of the Telerate screen. If the agreed page is replaced or service ceases to be available, the Facility Agent may specify another page or service displaying the appropriate rate after consultation with the Company and the Lenders.
		“Security” means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
		“Selection Notice” means a notice substantially in the form set out in Part II of Schedule 2 (Requests) given in accordance with Clause 10 (Interest Periods).
		“Shares” means the issued ordinary shares in the capital of Falconbridge Limited.
		“Spanish Guarantor” means a Guarantor incorporated in Spain.
		“Spanish Public Document” means escritura pública or a póliza or efecto intervenido por fedatario público.
		“Specified Time” means a time determined in accordance with Schedule 7 (Timetables).

		“Stock” means all shares, stocks, debentures, bonds, warrants, coupons or other securities and investments now or in the future owned by any member of the Group.
		“Subsidiary” means in relation to any company or corporation (a “holding company”), a company or corporation:

	(a)		which is controlled, directly or indirectly, by the holding company;
	(b)		more than half the issued share capital of which is beneficially owned, directly or indirectly, by the holding company; or
	(c)		which is a Subsidiary of another Subsidiary of the holding company,

		and, for this purpose, a company or corporation shall be treated as being controlled by another if that other company or corporation is able to determine the composition of the majority of its board of directors or equivalent body.
		“Swiss Anticipatory Tax” means any withholding tax on the payment of interest and dividends (including constructive dividends) in accordance with the Swiss Federal Statute on Anticipatory Tax of 13 October 1965 (as amended from time to time).
		“Swiss Borrower” means a Borrower incorporated, or for tax purposes resident, in Switzerland.
		“Swiss Guarantor” means a Guarantor incorporated, or for tax purposes resident, in Switzerland.
		“Swiss Obligor” means a Swiss Borrower or a Swiss Guarantor.
		“TARGET” means Trans-European Automated Real-time Gross Settlement Express Transfer payment system.
		“TARGET Day” means any day on which TARGET is open for the settlement of payments in euro.
		“Tax” means any tax, levy, impost, duty (including but not limited to, stamp duty) or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
		“Taxes Act” means the Income and Corporation Taxes ▇▇▇ ▇▇▇▇.
		“Termination Date” means subject to Clause 7.2 (Extension Option), the date which is 364 days from the date of this Agreement (except that, if the Termination Date would otherwise fall on a day which is not a Business Day, it will instead be the immediately preceding Business Day).
		“Total Assets” means, at any time, consolidated total assets of the Group.
		“Total Capitalisation” means at any time, the aggregate of Consolidated Borrowings and Consolidated Net Worth.
		“Total Commitments” means the aggregate of the Commitments being $600,000,000 at the date of this Agreement.
		“Total Revenue” means, for any period, consolidated total revenue of the Group as disclosed in the financial statements of the Group for that period.

		“Transfer Certificate” means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Facility Agent and the Company.
		“Transfer Date” means, in relation to a transfer, the later of:

	(a)		the proposed Transfer Date specified in the Transfer Certificate; and
	(b)		the date on which the Facility Agent executes the Transfer Certificate.

		“Unpaid Sum” means any sum due and payable but unpaid by an Obligor under the Finance Documents.
		“Utilisation” means a Loan.
		“Utilisation Date” means the date on which a Utilisation is, or is to be, made.
		“Utilisation Request” means a notice substantially in the form set out in Part I of Schedule 2 (Requests).
		“VAT” means value added tax as provided for in the Value Added Tax ▇▇▇ ▇▇▇▇ and any other tax of a similar nature (including, but not limited to, goods and service tax).
		“Xstrata South Africa Group” means Xstrata South Africa (Proprietary) Limited and its Subsidiaries incorporated in South Africa for the time being.
1.2		Construction
(a)		Unless a contrary indication appears, any reference in this Agreement to:

	(i)		the “Facility Agent”, any “Mandated Lead Arranger”, any “Finance Party”, any “Lender”, any “Obligor”, or any “Party” shall be construed so as to include its successors in title, permitted assigns and permitted transferees;
	(ii)		“assets” includes present and future properties, revenues and rights of every description;
	(iii)		the “equivalent” in any currency (the “first currency”) of any amount in another currency (the “second currency”) shall be construed as a reference to the amount in the first currency which could be purchased with that amount in the second currency at the Facility Agent’s spot rate of exchange for the purchase of the first currency with the second currency in the London foreign exchange market at or about 11.00 a.m. on a particular day (or at or about such time and on such date as the Facility Agent may from time to time reasonably determine to be appropriate in the circumstances);
	(iv)		the “European interbank market” means the interbank market for euro operating in Participating Member States;
	(v)		a “Finance Document” or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended or novated;
	(vi)		“indebtedness” includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

	(vii)		a “person” includes any person, firm, company, corporation, government, state or agency of a state or any association, trust or partnership (whether or not having separate legal personality) or two or more of the foregoing;
	(viii)		a “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;
	(ix)		a provision of law is a reference to that provision as amended or re-enacted;
	(x)		a time of day is a reference to London time;
	(xi)		a “share” includes, in respect of an Obligor incorporated in Spain, both shares (“acciones”) and, if applicable, participations (“participaciones”).

(b)

A document is in the “Agreed Form”:

	(i)		if it is in a form initialled by or on behalf of the Company and the Mandated Lead Arrangers on or before the signing of this Agreement for the purposes of identification; or
	(ii)		if not falling within sub-paragraph (i) above, if it is in form and substance satisfactory to the Facility Agent and initialled by or on behalf of the Facility Agent for the purposes of identification.

(c)		Section, Clause and Schedule headings are for ease of reference only.
(d)		Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
(e)		A Default or an Event of Default is “continuing” if it has not been remedied or waived.
1.3		Third Party Rights
		A person who is not a Party has no right under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce or to enjoy the benefit of any term of this Agreement.
1.4		Calculations
(a)		EBITDA, Interest Expense, Consolidated Borrowings, Consolidated Net Worth, Total Assets, Total Revenue and Total Capitalisation shall be calculated and interpreted on a consolidated basis in accordance with UK GAAP and shall be expressed in US dollars.
(b)		EBITDA, Interest Expense, Consolidated Borrowings, Consolidated Net Worth, Total Assets, Total Revenue and Total Capitalisation shall be determined (except as needed to reflect the terms of this Agreement) from the financial statements of the Group and Compliance Certificates delivered under Clause 20.1 (Annual financial statements), Clause 20.2 (Half-yearly financial statements) and Clause 20.4 (Compliance Certificate). For the purposes of calculating the financial covenant in Clause 21(b), where any acquisition or disposal occurs during a Relevant Period, EBITDA shall be determined on a pro forma basis as if the acquisition or disposal occurred at the beginning of that Relevant Period

(c)

For the purpose of this Clause 1.4 and the defined terms referred to in it, no item shall be included or excluded more than once in any calculation.

SECTION 2

THE FACILITY

2.		The Facility
2.1		The Facility
		Subject to the terms of this Agreement, the Lenders make available to the Borrowers a multicurrency 364 day term loan facility with an extension option in an aggregate amount equal to the Total Commitments.
2.2		Finance Parties’ rights and obligations
(a)		The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
(b)		The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt.
(c)		A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.
2.3		Company as Obligors’ agent
		Each Obligor (other than the Company):

(a)

irrevocably authorises the Company to act on its behalf as its agent in relation to the Finance Documents, including:

	(i)		to give and receive as agent on its behalf all notices and instructions (including Utilisation Requests);
	(ii)		to sign on its behalf all documents in connection with the Finance Documents (including amendments and variations of any Finance Documents, the granting of Spanish Public Documents (including its ratification and incorporation of this Agreement into a Spanish Public Document), and to execute any new Finance Documents); and
	(iii)		to take such other action as may be necessary or desirable under or in connection with the Finance Documents; and

(b)

confirms that it will be bound by any action taken by the Company under or in connection with the Finance Documents.

2.4		Acts of Company
(a)		The respective liabilities of each of the Obligors under the Finance Documents shall not be in any way affected by:

	(i)		any actual or purported irregularity in any act done or failure to act by the Company;
	(ii)		the Company acting (or purporting to act) in any respect outside any authority conferred upon it by any Obligor; or
	(iii)		any actual or purported failure by or inability of the Company to inform any Obligor of receipt by it of any notification under the Finance Documents.

(b)		In the event of any conflict between any notices or other communications of the Company and any other Obligor, those of the Company shall prevail.
3.		Purpose
3.1		Purpose
(a)		Each Borrower shall apply all amounts borrowed by it under the Facility towards financing or refinancing the consideration payable by a member of the Group for the acquisition by it of Shares from Brascan Corporation or a Subsidiary of Brascan Corporation.
(b)		No amount borrowed under the Facility shall be applied in any manner that may be illegal or contravene any applicable local laws or regulations in any relevant jurisdiction concerning financial assistance by a company for the acquisition of or subscription for its own shares or concerning the protection of shareholders’ capital.
3.2		Monitoring
		No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.
4.		Conditions of Utilisation
4.1		Initial conditions precedent
		No Borrower may deliver a Utilisation Request unless the Facility Agent has received all of the documents and other evidence listed in Part III of Schedule I (Conditions precedent to initial Utilisation Request) in form and substance satisfactory to the Facility Agent. The Facility Agent shall notify the Company and the Lenders promptly upon being so satisfied.
4.2		Further conditions precedent
		The Lenders will only be obliged to comply with Clause 5.4 (Lenders’ participation) if on the date of the Utilisation Request and on the proposed Utilisation Date:

	(i)		no Default is continuing or would result from the proposed Loan; and
	(ii)		the Repeating Representations to be made by each Obligor are true.

4.3		Conditions relating to Optional Currencies
(a)		A currency will constitute an Optional Currency in relation to a Loan if:

(i)

it is readily available in the amount required and freely convertible into the Base Currency in the Relevant Interbank Market on the Quotation Day and the Utilisation Date for that Utilisation; and

(ii)

it is euro or Canadian dollars or has been approved by the Facility Agent (acting on the instructions of all the Lenders) on or prior to receipt by the Facility Agent of the relevant Utilisation Request for that Utilisation.

(b)

If by the Specified Time the Facility Agent has received a written request from the Company for a currency to be approved under paragraph (a)(ii) above, the Facility Agent will confirm to the Company by the Specified Time:

	(i)		whether or not the Lenders have granted their approval; and
	(ii)		if approval has been granted, the minimum amount (and, if required, integral multiples) for any subsequent Utilisation in that currency.

4.4		Maximum number of Utilisations
(a)		A Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation more than five Loans would be outstanding.
(b)		A Borrower may not deliver more than one Utilisation Request under the Facility on any one day.
(c)		A Borrower may not request that a Loan be divided if, as a result of the proposed division, more than five Loans would be outstanding.
(d)		Any Loan made by a single Lender under Clause 7.2 (Unavailability of a currency) shall not be taken into account in this Clause 4.4.

SECTION 3

UTILISATION

5.		Utilisation
5.1		Delivery of a Utilisation Request
		A Borrower may utilise a Facility by delivery to the Facility Agent of a duly completed Utilisation Request in the form of Part I of Schedule 2 (Requests) not later than the Specified Time.
5.2		Completion of a Utilisation Request
(a)		Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:

	(i)		the proposed Utilisation Date is a Business Day within the Availability Period;
	(ii)		the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount);
	(iii)		the proposed Interest Period complies with Clause 10 (Interest Periods); and
	(iv)		it specifies the account and bank (which must be in the principal financial centre of the country of the currency of the Utilisation or, in the case of euro, the principal financial centre of a Participating Member State in which banks are open for general business on that day or London) to which the proceeds of the Utilisation are to be credited.

(b)		Only one Loan may be requested in each Utilisation Request.
5.3		Currency and amount
(a)		The currency specified in a Utilisation Request must be the Base Currency or an Optional Currency.
(b)		The amount of the proposed Loan must be:

	(i)		if the currency selected is the Base Currency, a minimum of $25,000,000 and an integral multiple of $5,000,000 or, if less, the Available Facility; or
	(ii)		if the currency selected is euro, a minimum of €25,000,000 and an integral multiple of €5,000,000 or, if less, the Available Facility; or
	(iii)		if the currency selected is Canadian dollars, a minimum of Can$50,000,000 and an integral multiple of Can$10,000,000 or, if less, the Available Facility; or
	(iv)		if the currency selected is an Optional Currency other than euro or Canadian dollars, the minimum amount (and, if required, integral multiple) specified by the Facility Agent pursuant to paragraph (b)(ii) of Clause 4.3 (Conditions relating to Optional Currencies) or, if less, the Available Facility; and
	(v)		in any event such that its Base Currency Amount is less than or equal to the Available Facility.

5.4		Lenders’ participation
(a)		If the conditions set out in this Agreement have been met, each Lender participating in the Facility shall make its participation in each Loan available by the Utilisation Date through its Facility Office.
(b)		The amount of each Lender’s participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.
(c)		The Facility Agent shall determine the Base Currency Amount of each Loan which is to be made in an Optional Currency and shall by the Specified Time notify each Lender of the amount, currency and the Base Currency Amount of each Loan and the amount of its participation in that Loan.
6.		Optional Currencies
6.1		Selection of currency
(a)		A Borrower (or the Company on behalf of a Borrower) shall select the currency of the Loan:

	(i)		(in the case of an initial Utilisation) in a Utilisation Request; and
	(ii)		(afterwards) in a Selection Notice.

(b)		If a Borrower (or the Company on behalf of a Borrower) fails to issue a Selection Notice in relation to a Loan, it shall be deemed to have requested that the Loan will remain denominated for its next Interest Period in the same currency in which it is then outstanding.
(c)		If a Borrower (or the Company on behalf of a Borrower) issues a Selection Notice requesting a change of currency and the first day of the requested Interest Period is not a Business Day for the new currency, the Facility Agent shall promptly notify the Borrower and the Lenders and the Loan will remain in the existing currency (with Interest Periods running from one Business Day until the next Business Day) until the next day which is a Business Day for both currencies, on which day the requested Interest Period will begin.
6.2		Unavailability of a currency
		If before the Specified Time on any Quotation Day:
(a)		a Lender notifies the Facility Agent that the Optional Currency requested is not readily available to it in the amount required; or
(b)		a Lender notifies the Facility Agent that compliance with its obligation to participate in a Loan in the proposed Optional Currency would contravene a law or regulation applicable to it,
		the Facility Agent will give notice to the relevant Borrower to that effect by the Specified Time on that day. In this event, any Lender that gives notice pursuant to this Clause 6.2 will be required to participate in the Loan in the Base Currency (in an amount equal to that Lender’s proportion of the Base Currency Amount) and its participation will be treated as a separate Loan denominated in the Base Currency during that Interest Period.

6.3		Facility Agent’s calculations
(a)		All calculations made by the Agent pursuant to this Clause 6 will take into account any repayment, prepayment, consolidations or divisions of Loans to be made on the last day of the first Interest Period.
(b)		Each Lender’s participation in a Loan will, subject to paragraph (a) above, be determined in accordance with paragraph (b) of Clause 5.4 (Lenders’ participation).
6.4		Change of currency
(a)		If a Loan is to be denominated in different currencies during two successive Interest Periods:

	(i)		if the currency for the second Interest Period is an Optional Currency, the amount of the Loan in that Optional Currency will be calculated by the Facility Agent as the amount of that Optional Currency equal to the Base Currency Amount of the Loan at the Facility Agent’s Spot Rate of Exchange at the Specified Time;
	(ii)		if the currency for the second Interest Period is the Base Currency, the amount of the Loan will be equal to the Base Currency Amount;
	(iii)		(unless the Facility Agent and the Borrower agree otherwise in accordance with paragraph (b) below) the Borrower that has borrowed the Loan shall repay it on the last day of the first Interest Period in the currency in which it was denominated for that Interest Period; and
	(iv)		(subject to Clause 4.2 (Further conditions precedent)) the Lenders shall re-advance the Loan in the new currency in accordance with Clause 6.3 (Facility Agent’s calculations).

(b)

If the Facility Agent and the Borrower that has borrowed the Loan agree, the Facility Agent shall:

	(i)		apply the amount paid to it by the Lenders pursuant to paragraph (a)(iv) above (or so much of that amount as is necessary) in or towards purchase of an amount in the currency in which the Loan is outstanding for the first Interest Period; and
	(ii)		use the amount it purchases in or towards satisfaction of the relevant Borrower’s obligations under paragraph (a)(iii) above.

(c)		If the amount purchased by the Facility Agent pursuant to paragraph (b)(i) above is less than the amount required to be repaid by the relevant Borrower, the Facility Agent shall promptly notify that Borrower and that Borrower shall, on the last day of the first Interest Period, pay an amount to the Facility Agent (in the currency of the outstanding Loan for the first Interest Period) equal to the difference.
(d)		If any part of the amount paid to the Facility Agent by the Lenders pursuant to paragraph (a)(iv) above is not needed to purchase the amount required to be repaid by the relevant Borrower, the Facility Agent shall promptly notify that Borrower and pay that Borrower, on the last day of the first Interest Period that part of that amount (in the new currency).
6.5		Same Optional Currency during successive Interest Periods
(a)		If a Loan is to be denominated in the same Optional Currency during two successive Interest Periods, the Facility Agent shall calculate the amount of the Loan in the Optional Currency for

the second of those Interest Periods (by calculating the amount of Optional Currency equal to the Base Currency Amount of that Loan at the Facility Agent’s Spot Rate of Exchange at the Specified Time) and (subject to paragraph (b) below):

	(i)		if the amount calculated is less than the existing amount of that Loan in the Optional Currency during the first Interest Period, promptly notify the Borrower that has borrowed that Loan and that Borrower shall pay, on the last day of the first Interest Period, an amount equal to the difference; or
	(ii)		if the amount calculated is more than the existing amount of that Loan in the Optional Currency during the first Interest Period, promptly notify each Lender and, if no Default is continuing, each Lender shall, on the last day of the first Interest Period, pay its participation in an amount equal to the difference.

(b)

If the calculation made by the Facility Agent pursuant to paragraph (a) above shows that the amount of the Loan in the Optional Currency for the second of those Interest Periods converted into the Base Currency at the Facility Agent’s Spot Rate of Exchange used in calculating the Base Currency Amount of that Loan has increased or decreased by less than 5 per cent. compared to its Base Currency Amount (taking into account any payments made pursuant to paragraph (a) above), no notification shall be made by the Facility Agent and no payment shall be required under paragraph (a) above.

SECTION 4

REDUCTION, REPAYMENT, PREPAYMENT AND CANCELLATION

7.		Repayment and reduction of Loans
7.1		Repayment of Loans
(a)		Subject to clause 7.2, each Borrower which has drawn a Loan shall repay that Loan on the last day of its Interest Period.
(b)		Any Loan remaining outstanding on the Termination Date shall be repaid on that date.
7.2		Extension Option
(a)		The Termination Date of the Facility shall be extended by 180 days if the Company gives notice to the Facility Agent not less than 30 days before the then Termination Date of the Facility, and no Event of Default is continuing on the date of such notice nor on the original Termination Date of the Facility. Such notice is irrevocable.
(b)		There may be only one extension of the Termination Date of the Facility.
(c)		If any extension is so requested, the Company shall pay to the Facility Agent (for the account of each Lender) a fee of [***] per cent. flat on that Lender’s Commitment. That fee shall be payable on the date the Company gives notice extending the Termination Date of the Facility in accordance with paragraph (a) above.
8.		Prepayment and cancellation
8.1		Illegality
		If it becomes unlawful in any jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund its participation in any Loan:

	(a)		that Lender shall promptly notify the Facility Agent upon becoming aware of that event;
	(b)		upon the Facility Agent notifying the Company, the Commitment of that Lender will be immediately cancelled; and
	(c)		each Borrower shall repay that Lender’s participation in the Loans made to that Borrower on the last day of the Interest Period for each Loan occurring after the Facility Agent has notified the Company or, if earlier, the date specified by the Lender in the notice delivered to the Facility Agent (being no earlier than the last day of any applicable grace period permitted by law).

8.2		Change of Control
(a)		If any person or group of persons acting in concert acquire control of the Parent:

(i)

the Company shall promptly notify the Facility Agent upon becoming aware of that event;

	(ii)		the Facility Agent shall promptly notify the Lenders of receipt of such notice from the Company;
	(iii)		no Borrower may make a Utilisation unless otherwise agreed by the Majority Lenders; and
	(iv)

	(A)		if the Majority Lenders so require and the Facility Agent has given notice of such requirement to the Company within 30 days of receipt of the Company’s notice, the Facility shall immediately be cancelled and all outstanding Loans, together with accrued interest, and all other amounts accrued under the Finance Documents shall become immediately due and payable; or
	(B)		if the Majority Lenders do not so require, any Lender who voted to require cancellation of the Facility may notify the Company and the Facility Agent within 45 days of receipt of the Company’s notice if it objects to the event notified by the Company on the basis of a generally applicable internal policy (provided that notification by that Lender will amount to conclusive evidence of a violation of such policy and nothing in this Clause will oblige that Lender to disclose any information relating to such objection or internal policy) and, on receipt by the Company of notice to that effect, that Lender’s Commitment shall then be immediately cancelled and that Lender’s participation in all outstanding Loans, accrued interest and all other amounts accrued under the Finance Documents shall become immediately due and payable.

(b)		For the purpose of paragraph (a) above “control” has the meaning given to it in section 416(2) of the Taxes Act and “acting in concert” has the meaning given to it in the City Code on Takeovers and Mergers.
8.3		Voluntary cancellation
		The Company may, if it gives the Facility Agent not less than 10 days’ (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of $25,000,000 (or its equivalent in any other currency or currencies) or the outstanding balance under the relevant Facility, if less) of an Available Facility at any time during the Availability Period in respect of the relevant Facility.
8.4		Mandatory prepayment from Net Sale Proceeds
(a)		In this Clause 8.4:
		“Net Sale Proceeds” means the cash or cash equivalent proceeds (including, when received, the cash or cash equivalent proceeds of any deferred consideration, whether by way of adjustment to the purchase price or otherwise) received by a member of the Group after the date of this Agreement in connection with the sale, transfer or other disposal by any member of the Group of any Shares after deducting:

(i)

fees and transaction costs properly incurred in connection with that sale, transfer or disposal; and

(ii)

Taxes paid or reasonably estimated by the Company to be payable (as certified by the Company to the Facility Agent) as a result of that sale, transfer or disposal.

(b)		The Company shall, within two Business Days after the date on which Net Sale Proceeds have been received by any member of the Group (or have become Net Sale Proceeds) (the “Receipt Date”), notify the Facility Agent of the Receipt Date and the amount in US Dollars (the “US Dollar Proceeds Amount”) equal or equivalent to those Net Sale Proceeds.
(c)		Subject to paragraph (e) below, the Borrowers shall prepay the Loans on the earlier of ten Business Days after the Receipt Date and the expiry of their Interest Periods current when the Facility Agent receives the relevant notice pursuant to paragraph (b) above) until the Loans equal to or greater than the US Dollar Proceeds Amount have been prepaid.
(d)		The Commitments of the Lenders shall be reduced rateably.
(e)		In the event that members of the Group cease to own directly any Shares, the Borrowers shall prepay the Loans in full on the date that such member of the Group makes the relevant sale, transfer or disposal of the Shares.
8.5		Mandatory prepayment from acquisition fundraising
(a)		The Parent and the Company shall ensure that, on the date upon which any member of the Group receives cash or cash equivalent proceeds in connection with any member of the Group incurring Indebtedness for Borrowed Money:

	(i)		to acquire Shares; or
	(ii)		in an aggregate principal amount exceeding $500,000,000,

(a “Fundraising”), the Borrowers shall prepay the Loans in full.

(b)

Paragraph (a) above does not apply to:

	(i)		any Fundraising which is Financial Indebtedness permitted by paragraphs (b)(i), (ii), (iii), (v) or (vi) of Clause 22.6 (Restrictions on Financial Indebtedness); and
	(ii)		any Fundraising which is solely for the purpose of financing or refinancing the working capital requirements of the Group or which arises pursuant to a finance lease transaction.

8.6		Voluntary prepayment
		The Borrower to which a Loan has been made may, if it gives the Facility Agent not less than 10 days (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of any Loan (being a minimum of $25,000,000 (or its equivalent in any other currency or currencies) or the outstanding amount under that Facility, if less).
8.7		Right of replacement of a single Lender
		If:

(a)

any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 13.2 (Tax gross-up); or

(b)	any Lender claims indemnification from the Company under Clause 13.3 (Tax indemnity) or Clause 14 (Increased costs), the Company may:

	(i)		(whilst the circumstance giving rise to the requirement or indemnification continues) arrange for the transfer of the whole (but not part only) of that Lender’s Commitment and participations in the Loans to a new or existing Lender willing to accept that transfer and acceptable to the Company and the remaining Lenders; or
	(ii)		give the Facility Agent notice of cancellation of the Commitment of that Lender and its intention to procure the repayment of that Lender’s participation in the Utilisations, whereupon the Commitment of that Lender shall immediately be reduced to zero. On the last day of each Interest Period which ends after the Company has given notice under this paragraph (ii) (or, if earlier, the date specified by the Company in that notice), each Borrower to which a Loan is outstanding shall repay that Lender’s participation in that Loan.

8.8		Replacement of a Non-Consenting or Non-Funding Lender
(a)		In this Clause 8.8:

(i)

“Non-Consenting Lender” means a Lender which does not agree to a waiver or amendment if:

	(A)		the Company or the Facility Agent has requested the Lenders to consent to a waiver or amendment of any provision of any Finance Document;
	(B)		the relevant waiver or amendment requires the consent of all the Lenders; and
	(C)		the Majority Lenders have consented to that waiver or amendment.

(ii)

“Non-Funding Lender” means:

	(A)		any Lender which has failed to make or participate in any Loan as required by this Agreement; or
	(B)		any Lender which has given notice to a Borrower or the Facility Agent that it does not intend to make or participate in any Loan in accordance with the requirements of this Agreement or has repudiated its obligations to do so.

(b)

If:

	(i)		any Lender becomes a Non-Consenting Lender; or
	(ii)		any Lender becomes a Non-Funding Lender,

the Company may, if it gives the Facility Agent and that Lender not less than 10 Business Days’ prior notice, arrange for the transfer of the whole (but not part only) of that Lender’s Commitment and participations in the Loans to a new or existing Lender willing to accept that transfer and acceptable to the Company and the remaining Lenders of the relevant Facility.

(c)

The replacement of a Lender pursuant to this Clause 8.8 shall be subject to the following conditions:

	(i)		the Company shall have no right to replace the Facility Agent;
	(ii)		neither the Facility Agent nor any Lender shall have any obligation to the Company to find a replacement Lender;
	(iii)		in the event of a replacement of a Non-Consenting Lender such replacement must take place no later than 180 days after the date the Non-Consenting Lender notified the Company and the Facility Agent of its failure to agree to any requested consent, waiver or amendment to the Finance Documents;
	(iv)		any Lender replaced pursuant to this Clause 8.8 shall not be required to pay or surrender to any other Lender any of the fees received by that Lender pursuant to this Agreement; and
	(v)		payment of any applicable Break Costs; and
	(vi)		any fees due under Clause 25.4 (Assignment of transfer fee).

8.9		Restrictions
(a)		Any notice of cancellation or prepayment given by any Party under this Clause 8 shall be irrevocable and, unless a contrary indication appears in this Agreement, specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.
(b)		Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.
(c)		The Borrowers shall not repay or prepay all or any part of the Utilisations or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
(d)		No Borrower may reborrow any part of a Loan which is prepaid.
(e)		Unless a contrary indication appears in this Agreement, no amount of the Total Commitments cancelled or reduced under this Agreement may be subsequently reinstated.
(f)		If the Facility Agent receives a notice under this Clause 8 it shall promptly forward a copy of that notice to either the Company or the affected Lender, as appropriate.

SECTION 5

COSTS OF UTILISATION

9.		Interest
9.1		Calculation of interest
		The rate of interest on each Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:

	(a)		the Margin;
	(b)		LIBOR or, in relation to any Loan in euro, EURIBOR; and
	(c)		Mandatory Cost, if any.

9.2		Payment of interest
		The Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day of each Interest Period (and, if the Interest Period is longer than six Months, on the dates falling at six monthly intervals after the first day of the Interest Period).
9.3		Default interest
		(a)		If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is the sum of 1 per cent. and the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Facility Agent (acting reasonably). Any interest accruing under this Clause 9.3 shall be immediately payable by the Obligor on demand by the Facility Agent.
		(b)		If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:

	(i)		the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and
	(ii)		the rate of interest applying to the overdue amount during that first Interest Period shall be the sum of [***] per cent. and the rate which would have applied if the overdue amount had not become due.

		(c)		Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.

9.4		Notification of rates of interest
		The Facility Agent shall promptly notify the relevant Lenders and the relevant Borrower of the determination of a rate of interest under this Agreement.
9.5		Minimum Interest
		By entering into this Agreement, the Parties have assumed that the interest payable at the rates set out in Clause 9 (Interest) is not and will not become subject to Swiss Anticipatory Tax. Therefore, each Borrower acknowledges and agrees that the interest rates set out in and which are calculated in accordance with Clause 9 (Interest) shall constitute minimum interest rates, which, if Swiss Anticipatory Tax should apply, shall be adjusted as follows:

	(a)		Any payment of interest due by a Swiss Borrower shall be increased to an amount which (after making any deduction of the Non-refundable Portion (as defined below) of Swiss Anticipatory Tax) results in a payment to each Lender entitled to such payment of an amount equal to the payment which would have been due had no deduction of Swiss Anticipatory Tax been required. For this purpose, the Swiss Anticipatory Tax shall be calculated on the full grossed-up interest amount and “Non-refundable Portion” shall mean Swiss Anticipatory Tax at the standard rate from time to time (35 per cent. at the date of this Agreement) unless a tax ruling by the Swiss Federal Tax Administration confirms that the Non-refundable Portion is, pursuant to any double taxation treaties, a specified lower rate in relation to specified Finance Parties in which case such lower rate shall be applied in relation to such Finance Parties.
	(b)		Each Swiss Borrower shall provide to the Facility Agent the documents required by law and applicable double taxation treaties for the Lenders to prepare claims for the refund of any Swiss Anticipatory Tax so deducted.
	(c)		If any amount has been paid to a Lender in respect of which Swiss Anticipatory Tax has been paid by a Swiss Borrower and such Lender determines that such amount has been refunded to it by the Swiss tax authorities, it shall promptly reimburse that Swiss Borrower such amount as will leave the Lender in the same position as if there had been no Swiss Anticipatory Tax.
	(d)		A Swiss Borrower shall not be required to make an increased payment to a Lender pursuant to this Clause 9.5 if the requirement to make a deduction of Swiss Anticipatory Tax arises as a result of a breach of Clause 26.18 (Bank representation by Original Lenders) or Clause 24.2 (Conditions of assignment or transfer) by that Lender or by the Existing Lender (as defined in Clause 24.1 (Assignments and transfers by the Lenders)) which assigned or transferred any of its rights and obligations under the Finance Documents to such Lender.

10.		Interest Periods
10.1		Selection of Interest Periods
(a)		The Company on behalf of a Borrower may select an Interest Period for a Loan in the Utilisation Request for that Loan or (if the Loan has already been borrowed) in a Selection Notice.

(b)		Subject to this Clause 10, a Borrower may select an Interest Period of one, two, three or six Months or any other period agreed between the Company and the Facility Agent (acting on the instructions of all the Lenders participating in the relevant Loan).
(c)		Each Selection Notice for a Loan is irrevocable and must be delivered to the Facility Agent by the Borrower (or the Company on behalf of a Borrower) to which that Loan was made not later than the Specified Time.
(d)		If the Company fails to deliver a Selection Notice to the Agent in accordance with paragraph (c) above the relevant Interest Period will be one Month.
(e)		Each Interest Period for a Loan shall start on the Utilisation day of its preceding Interest Period.
(f)		An Interest Period for a Loan shall not extend beyond the Termination Date.
10.2		Non-Business Days
		If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).
10.3		Consolidation and division of Loans
(a)		Subject to paragraph (b) below, if two or more Interest Periods:

	(i)		relate to Loans to the same Borrower;
	(ii)		end on the same date; and
	(iii)		relate to Loans in the same currency,

		those Loans will, unless the Company on behalf of a Borrower specifies to the contrary in the Selection Notice for the next Interest Period, be consolidated into, and treated as, a single Loan on the last day of the Interest Period.
(b)		Subject to Clause 4.4 (Maximum number of Utilisations) and Clause 5.3 (Currency and amount), if the Company on behalf of a Borrower requests in a Selection Notice that a Loan be divided into two or more Loans, that Loan will, on the last day of its Interest Period, be so divided with Base Currency Amounts specified in that Selection Notice, being an aggregate Base Currency Amount equal to the Base Currency Amount of the Loan immediately before its division.
11.		Changes to the calculation of interest
11.1		Absence of quotations
		Subject to Clause 11.2 (Market disruption), if LIBOR or, if applicable, EURIBOR is to be determined by reference to the Reference Banks but a Reference Bank does not supply a quotation by the Specified Time on the Quotation Day, the applicable LIBOR or EURIBOR shall be determined on the basis of the quotations of the remaining Reference Banks.

11.2		Market disruption
(a)		If a Market Disruption Event occurs in relation to a Loan for any Interest Period, then the rate of interest on each Lender’s share of that Loan for the Interest Period shall be the rate per annum which is the sum of:

	(i)		the Margin;
	(ii)		the rate notified to the Facility Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in that Loan from whatever source it may reasonably select; and
	(iii)		the Mandatory Cost, if any, applicable to that Lender’s participation in the Loan.

(b)

In this Agreement “Market Disruption Event” means:

	(i)		at or about noon on the Quotation Day for the relevant Interest Period the Screen Rate is not available and none or only one of the Reference Banks supplies a rate to the Facility Agent to determine LIBOR or, if applicable, EURIBOR for the relevant currency and Interest Period; or
	(i)		before close of business in London on the Quotation Day for the relevant Interest Period, the Facility Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 35 per cent. of that Loan) that the cost to it of obtaining matching deposits in the Relevant Interbank Market would be in excess of LIBOR or, if applicable, EURIBOR.

11.3		Alternative basis of interest or funding
(a)		If a Market Disruption Event occurs and the Facility Agent or the Company so requires, the Facility Agent and the Company shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.
(b)		Any alternative basis agreed pursuant to paragraph (a) above shall, with the prior consent of all the Lenders and the Company, be binding on all Parties.
11.4		Break Costs
(a)		Each Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.
(b)		Each Lender shall, as soon as reasonably practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.

12.		Fees
12.1		Commitment fee
(a)		The Company shall pay to the Facility Agent (for the account of each Lender) a fee in the Base Currency computed at a percentage rate per annum on a day to day basis equal to [***] per cent. per annum on that Lender’s Available Commitment for the Availability Period.
(b)		The accrued commitment fee is payable on the last day of each successive period of three Months which ends during the relevant Availability Period, on the last day of the relevant Availability Period and, if cancelled in full, on the cancelled amount of the relevant Lender’s Commitment at the time the cancellation is effective.
12.2		Arrangement fees
		The Company shall pay to the Mandated Lead Arrangers an arrangement fee in the amounts and at the times agreed in a Fee Letter.
12.3		Agency fee
		The Company shall pay to the Facility Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.

SECTION 6

ADDITIONAL PAYMENT OBLIGATIONS

13.		Tax gross up and indemnities
13.1		Definitions
		In this Agreement:
		“Protected Party” means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.
		“Tax Credit” means a credit against, relief or remission for, or repayment of any Tax.
		“Tax Deduction” means a deduction or withholding for or on account of Tax from a payment under a Finance Document.
		“Tax Payment” means an increased payment made by an Obligor to a Finance Party under Clause 13.2 (Tax gross-up) or a payment under Clause 13.3 (Tax indemnity).
		Unless a contrary indication appears, in this Clause 13 a reference to “determines” or “determined” means a determination made in the absolute discretion of the person making the determination.
13.2		Tax gross-up
(a)		Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
(b)		The Company shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Facility Agent accordingly. Similarly, a Lender shall notify the Facility Agent on becoming so aware in respect of a payment payable to that Lender. If the Facility Agent receives such notification from a Lender, it shall notify the Company and that Obligor.
(c)		Subject to paragraph (d) and (g) below, if a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
(d)		A Swiss Obligor is not required to make an increased payment to a Lender under paragraph (c) above for a Tax Deduction in respect of Swiss Anticipatory Tax if and to the extent it is prohibited from doing so by Swiss law.
(e)		If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
(f)		Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Facility Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party

		that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
(g)		A Swiss Borrower shall not be required to make an increased payment to a Lender under paragraph (c) above if the requirement to make a Tax Deduction in respect of Swiss Anticipatory Tax arises as a result of a breach of Clause 26.18 (Bank representation by Original Lenders) or Clause 24.2 (Conditions of assignment or transfer) by that Lender or by the Existing Lender (as defined in Clause 24.1 (Assignments and transfers by Lenders)) which assigned or transferred any of its rights and obligations under the Finance Documents to such Lender.
13.3		Tax indemnity
(a)		Each Obligor shall (within three Business Days of demand by the Facility Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
(b)		Paragraph (a) above shall not apply:

(i)

with respect to any Tax assessed on a Finance Party:

	(A)		under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or
	(B)		under the law of the jurisdiction in which that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction,

if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or

(ii)

to the extent a loss, liability or cost:

	(A)		is compensated for by an increased payment under Clause 13.2 (Tax gross-up); or
	(B)		would have been compensated for by an increased payment under Clause 13.2 (Tax gross-up) but was not so compensated solely because one of the exclusions in paragraph (d) or (g) of Clause 13.2 (Tax gross-up) applied; or
	(C)		arises as a result of a breach of Clause 26.18 (Bank representation by Original Lenders) or of Clause 24.2 (Conditions of assignment or transfer) by a Lender or by the Existing Lender (as defined in Clause 24.1 (Assignments and transfers by the Lenders)) which assigned or transferred any of its rights and obligations under the Finance Documents; or

(iii)

to a Swiss Obligor in respect of Swiss Anticipatory Tax if it is prohibited from doing so by Swiss law.

(c)		A Protected Party making, or intending to make, a claim under paragraph (a) above shall promptly notify the Facility Agent of the event which will give, or has given, rise to the claim, following which the Facility Agent shall notify the Company.
(d)		A Protected Party shall, on receiving a payment from an Obligor under this Clause 13.3, notify the Facility Agent.
13.4		Tax Credit
		If an Obligor makes a Tax Payment and the relevant Finance Party determines that:

	(a)		a Tax Credit is attributable to that Tax Payment; and
	(b)		that Finance Party has obtained, utilised and retained that Tax Credit,

		the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been made by the Obligor.
13.5		Stamp taxes
		The Company shall pay and, within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to all stamp duty, registration, capital duty and other similar Taxes payable in respect of any Finance Document.
13.6		Value added tax
(a)		All consideration expressed to be payable under a Finance Document by any Party to a Finance Party shall be deemed to be exclusive of any VAT. If VAT is chargeable on any supply made by any Finance Party to any Party in connection with a Finance Document, that Party shall pay to the Finance Party (in addition to and at the same time as paying the consideration) an amount equal to the amount of the VAT.
(b)		Where a Finance Document requires any Party to reimburse a Finance Party for any costs or expenses, that Party shall also at the same time pay and indemnify the Finance Party against all VAT incurred by the Finance Party in respect of the costs or expenses.
14.		Increased costs
14.1		Increased costs
(a)		Subject to Clause 14.3 (Exceptions) the Company shall, within three Business Days of a demand by the Facility Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or (ii) compliance with any law or regulation made after the date of this Agreement.
(b)		In this Agreement “Increased Costs” means:

	(i)		a reduction in the rate of return from a Facility or on a Finance Party’s (or its Affiliate’s) overall capital;
	(ii)		an additional or increased cost; or

(iii)

a reduction of any amount due and payable under any Finance Document,

		which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its Commitment or funding or performing its obligations under any Finance Document.
14.2		Increased cost claims
(a)		A Finance Party intending to make a claim pursuant to Clause 14.1 (Increased costs) shall notify the Facility Agent of the event giving rise to the claim, following which the Facility Agent shall promptly notify the Company.
(b)		Each Finance Party shall, as soon as practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Increased Costs.
14.3		Exceptions
(a)		Clause 14.1 (Increased costs) does not apply to the extent any Increased Cost is:

	(i)		attributable to a Tax Deduction required by law to be made by an Obligor;
	(ii)		compensated for by Clause 13.3 (Tax indemnity) (or would have been compensated for under Clause 13.3 (Tax indemnity) but was not so compensated solely because one of the exclusions in paragraph (b) of Clause 13.3 (Tax indemnity) applied);
	(iii)		compensated for by the payment of the Mandatory Cost; or
	(iv)		attributable to the failure by the relevant Finance Party or its Affiliates to comply with any law or regulation.

(b)		In this Clause 14.3, a reference to a “Tax Deduction” has the same meaning given to the term in Clause 13.1 (Definitions).
15.		Other indemnities
15.1		Currency indemnity
(a)		If any sum due from an Obligor under the Finance Documents (a “Sum”), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the “First Currency”) in which that Sum is payable into another currency (the “Second Currency”) for the purpose of:

	(i)		making or filing a claim or proof against that Obligor; or
	(ii)		obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,

that Obligor shall as an independent obligation, within three Business Days of demand, indemnify each Finance Party to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.

(b)		Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
15.2		Other indemnities
		The Company shall (or shall procure that an Obligor will), within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability incurred by that Finance Party as a result of:

	(a)		the occurrence of any Event of Default;
	(b)		a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 28 (Sharing among the Finance Parties);
	(c)		funding, or making arrangements to fund, its participation in a Utilisation requested by a Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or
	(d)		a Utilisation (or part of a Utilisation) not being prepaid in accordance with a notice of prepayment given by a Borrower or the Company or as required by this Agreement.

15.3		Indemnity to the Facility Agent
		The Company shall promptly indemnify the Facility Agent against any cost, loss or liability incurred by the Facility Agent (acting reasonably) as a result of:

	(a)		investigating any event which it reasonably believes is a Default; or
	(b)		acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised.

15.4		Environmental indemnity
		Each Obligor shall, within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability:

	(a)		incurred by that Finance Party as a result of any actual or alleged breach of any Environmental Law by any member of the Group;
	(b)		which would not have arisen if a Finance Document had not been entered into by that Finance Party; and
	(c)		which is not caused by that Finance Party’s negligence or wilful misconduct.

16.		Mitigation by the lenders
16.1		Mitigation
(a)		Each Finance Party shall, in consultation with the Company, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 8.1 (Illegality), Clause 13 (Tax gross-up

		and indemnities) or Clause 14 (Increased costs), including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.
(b)		Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.
16.2		Limitation of liability
(a)		The Company shall indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 16.1 (Mitigation).
(b)		A Finance Party is not obliged to take any steps under Clause 16.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
17.		Costs and expenses
17.1		Transaction expenses
		The Company shall promptly on demand pay the Facility Agent and the Mandated Lead Arrangers the amount of all costs and expenses (including legal fees) incurred by any of them in connection with the negotiation, preparation, printing, execution, notarisation and syndication of:

	(a)		this Agreement and any other documents referred to in this Agreement; and
	(b)		any other Finance Documents executed after the date of this Agreement.

17.2		Amendment costs
		If (a) an Obligor requests an amendment, waiver or consent or (b) an amendment is required pursuant to Clause 29.9 (Change of currency), the Company shall, within three Business Days of demand, reimburse the Facility Agent for the amount of all reasonable costs and expenses (including legal fees) incurred by the Facility Agent in responding to, evaluating, negotiating or complying with that request or in connection with that required amendment.
17.3		Enforcement costs
		The Company shall, within three Business Days of demand, pay to each Finance Party the amount of all costs and expenses (including legal fees) incurred by that Finance Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document.

SECTION 7

GUARANTEE

18.		Guarantee and Indemnity
18.1		Guarantee and indemnity
		Subject to Clauses 18.9 (Swiss Limitations), each Guarantor irrevocably and unconditionally jointly and severally:

	(a)		guarantees to each Finance Party punctual performance by each other Obligor of all that Obligor’s obligations under the Finance Documents;
	(b)		undertakes with each Finance Party that, whenever an Obligor does not pay any amount when due under or in connection with any Finance Document, that Guarantor shall immediately on demand pay that amount as if it was the principal Obligor; and
	(c)		indemnifies each Finance Party immediately on demand against any cost, loss or liability suffered by that Finance Party if any obligation guaranteed by it (or which would have been an obligation guaranteed by it if it had not been unenforceable, invalid or illegal) is or becomes unenforceable, invalid or illegal. The amount of the cost, loss or liability shall be equal to the amount which that Finance Party would otherwise have been entitled to recover.

18.2		Continuing guarantee
		This guarantee and indemnity is a continuing guarantee and indemnity and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.
18.3		Reinstatement
		If any payment by an Obligor or any discharge given by a Finance Party (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is avoided or reduced as a result of insolvency or any similar event:

	(a)		the liability of each Obligor shall continue as if the payment, discharge, avoidance or reduction had not occurred; and
	(b)		each Finance Party shall be entitled to recover the value or amount of that security or payment from each Obligor, as if the payment, discharge, avoidance or reduction had not occurred.

18.4		Waiver of defences
		The obligations of each Guarantor under this Clause 18 will not be affected by an act, omission, matter or thing which, but for this Clause 18, would reduce, release or prejudice any of its obligations under this Clause 18 (without limitation and whether or not known to it or any Finance Party) including:

(a)

any time, waiver or consent granted to, or composition with, any Obligor or other person;

	(b)		the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;
	(c)		the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
	(d)		any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;
	(e)		any amendment (however fundamental) or replacement of a Finance Document or any other document or security;
	(f)		any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
	(g)		any insolvency or similar proceedings.

18.5		Immediate recourse
		Each Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Guarantor under this Clause 18. This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.
18.6		Appropriations
		Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may:

	(a)		refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and
	(b)		hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor’s liability under this Clause 18.

18.7		Deferral of Guarantors’ rights
		Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full and unless the Facility Agent otherwise directs, no Guarantor will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents:

	(a)		to be indemnified by an Obligor;
	(b)		to claim any contribution from any other guarantor of any Obligor’s obligations under the Finance Documents; and/or

(c)

to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party.

18.8		Additional security
		This guarantee and indemnity is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Finance Party.
18.9		Swiss Limitations

	(a)		If and to the extent that a Swiss Guarantor is liable pursuant to this Clause 18 for obligations other than the obligations of its Subsidiaries (a “Non-group Liability”) such Swiss Guarantor shall (to the extent that such is a requirement of the applicable law in force at the relevant time) only be liable to the Finance Parties for a sum equal to the maximum amount of its profits available for distribution as dividend at any given time (being the balance sheet profits and any reserves made for this purpose, in each case in accordance with art. 675 (2) and art. 671 (1) and (2) no. 3, of the Swiss Code of Obligations).
	(b)		Subject to the extent required by applicable law in force at the relevant time and any applicable double taxation treaty, any Swiss Guarantor which has a Non-group Liability:

	(i)		may deduct Swiss Anticipatory Tax at the rate of 35 percent, or such rate as is in force from time to time from any payment in respect of a Non-group Liability;
	(ii)		may pay any such deduction mentioned in paragraph (i) above, to the Swiss Federal Tax Administration; and
	(iii)		shall notify (or procure that the Company notifies) the Facility Agent that such a deduction has been made and provide, in accordance with Clause 13.2 (g) (Tax gross-up) the Facility Agent with evidence that such deduction has been paid to the Swiss Federal Tax Administration; and

to the extent such a deduction is made (in accordance with paragraph (b)(i) of this Clause), shall not be obliged to either gross-up in accordance with Clause 13.2 (Tax gross-up) or indemnify (or otherwise hold harmless) the Finance Parties in relation to any such deduction and payment to the Swiss Federal Tax Administration.

SECTION 8

REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT

19.		Representations
		Each Obligor makes the representations and warranties set out in this Clause 19 to each Finance Party on the date of this Agreement (in each case in relation to itself and, to the extent expressed to be applicable to them, its Subsidiaries (if any)).
19.1		Status

	(a)		It is a limited liability company or corporation, or if the Obligor is organised in Aruba, it is an Aruba exempt company (Aruba Vrijgestelde Vennootschap) duly incorporated and validly existing under the law of its jurisdiction of incorporation.
	(b)		It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being, and is proposed to be, conducted.

19.2		Binding obligations
		The obligations expressed to be assumed by it in each Finance Document to which it is or will be a party are legal, valid, binding and enforceable, subject to any general principles of law limiting its obligations which are specifically referred to in any legal opinion delivered pursuant to Clause 4 (Conditions of Utilisation) or Clause 25 (Changes to the Obligors).
19.3		Non-conflict with other obligations
		The entry into and performance by it of, and the transactions contemplated by, the Finance Documents do not and will not:

(a)

conflict with:

	(i)		any law or regulation applicable to it or any of its Subsidiaries;
	(ii)		its and each of its Subsidiaries’ constitutional documents; or
	(iii)		any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries’ assets; or

(b)

result in the existence of, or oblige it or any of its Subsidiaries to create, any Security over any of its or any of its Subsidiaries’ assets.

19.4		Power and authority
		It has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents to which it is a party and the transactions contemplated by those Finance Documents.
19.5		Validity and admissibility in evidence
		All Authorisations required or desirable:

(a)

to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party and the transactions contemplated by those Finance Documents; and

(b)

to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation, have been obtained or effected and are in full force and effect.

19.6		Governing law and enforcement
(a)		The choice of law specified in each Finance Document to which it is a party as the governing law of that Finance Document will be recognised and enforced in its jurisdiction of incorporation.
(b)		Subject to the Reservations, any judgment obtained in relation to a Finance Document to which it is a party in the jurisdiction of the governing law of that Finance Document will be recognised and enforced in that Obligor’s jurisdiction of incorporation.
19.7		No capital duty, filing or stamp taxes
		Under the law of its jurisdiction of incorporation or residence for tax purposes it is not necessary that the Finance Documents to which it is a party be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any capital duty, stamp, registration or similar tax be paid on or in relation to the Finance Documents to which it is a party or the transactions contemplated by the Finance Documents to which it is a party (save in each case for the payment of Swiss stamp duty or Swiss Anticipatory Tax that may arise out of a breach of Clause 26.18 (Bank representation by Original Lenders) or Clause 24.2 (Conditions of assignment or transfer)).
19.8		No default
(a)		No Event of Default is continuing or can reasonably be expected to result from the making of any Utilisation.
(b)		No other event or circumstance is outstanding which constitutes (or which would, with the expiry of a grace period, the giving of notice or the making of any determination under the relevant document or any combination of the foregoing, constitute) a default under any other agreement or instrument which is binding on it or any of its Subsidiaries or to which its (or its Subsidiaries’) assets are subject which could reasonably be expected to have a Material Adverse Effect.
19.9		Financial statements
(a)		Its Original Financial Statements were prepared in accordance with the Applicable Accounting Principles consistently applied.
(b)		Its Original Financial Statements fairly represent its financial condition and operations as at the end of and for the relevant financial year.
(c)		There has been no material adverse change in its business or financial condition since the date to which the Original Financial Statements were drawn up.
19.10		Pari passu ranking
		Its payment obligations under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors (except for obligations mandatorily preferred by law applying to companies generally).

19.11		No proceedings pending or threatened
(a)		No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency (including any arising from or relating to Environmental Law or any Environmental Licence) which are reasonably likely to be adversely determined and which, if adversely determined, can reasonably be expected to have a Material Adverse Effect have been started or (to the best of its knowledge) threatened against it or any of its Subsidiaries, nor are there any circumstances likely to give rise to any such litigation, arbitration or administrative proceedings.
(b)		No labour disputes which can reasonably be expected to have a Material Adverse Effect are current or (to the best of its knowledge) threatened, nor are there any circumstances likely to give rise to any such disputes.
19.12		Assets
		It and each of its Subsidiaries has good title to, or valid leases or licences of or is otherwise entitled to use, all material assets required by it to carry on its business as it is being, or is proposed to be, conducted.
19.13		Environmental Laws and Licences
		It and each of its Subsidiaries has:

	(a)		complied with all Environmental Laws to which it is subject;
	(b)		all Environmental Licences required in connection with its business;
	(c)		complied with the terms of those Environmental Licences; and
	(d)		complied with the terms of the Environmental Policy, in each case where failure to do so would be reasonably likely to have a Material Adverse Effect.

19.14		Environmental releases
		No:

	(a)		property currently or previously owned, leased, occupied or controlled by it or any of its Subsidiaries (including any offsite waste management or disposal location utilised by it or any of its Subsidiaries) is contaminated with any Hazardous Substance; and
	(b)		discharge, release, leaching, migration or escape of any Hazardous Substance into the Environment has occurred or is occurring on, under or from that property,

		in each case in circumstances where this would be reasonably likely to have a Material Adverse Effect.
19.15		No Financial Indebtedness or Security
(a)		Neither it nor any of its Subsidiaries has any Financial Indebtedness other than as permitted by Clause 22.6 (Restrictions on Financial Indebtedness).
(b)		No Security exists over all or any of its (or any of its Subsidiaries’) assets other than as permitted by paragraph (d) of Clause 22.4 (Negative pledge).

19.16		Solvency
(a)		No Obligor is insolvent or unable to pay its debts (including subordinated and contingent debts), nor could it be deemed to be unable to pay its debts within the meaning of:

	(i)		(in the case of a company incorporated in England or Wales) Section 123(1)(e) or 123(2) of the Insolvency ▇▇▇ ▇▇▇▇; or
	(ii)		(in the case of any other company) the laws of the jurisdiction in which it is incorporated,

		nor, in any such case, will it become so in consequence of entering into any Finance Document and/or performing any transaction contemplated by any Finance Document.
(b)		No Obligor has taken any corporate action nor have any other steps been taken or legal proceedings been started or threatened for its winding-up, dissolution, liquidation, administration, bankruptcy, suspension of payments or for the appointment of a receiver, administrator, administrative receiver, trustee or similar officer of it or of any or all of its assets or revenues.
19.17		Taxes
(a)		Each member of the Group has paid all Taxes required to be paid by it when due (or, if later, before any interest, fines or penalties are imposed or any Security could be imposed ranking in priority to the claims of any Finance Party).
(b)		Paragraph (a) above does not apply to any Taxes:

	(i)		being contested by it in good faith and in accordance with the relevant procedures;
	(ii)		for which adequate reserves are being maintained in accordance with Applicable Accounting Principles; and
	(iii)		where payment can be lawfully withheld and will not result in the imposition of any interest, fines or penalty or any Security, as described in paragraph (a) above.

19.18		Repetition
		The Repeating Representations (and, in the case of sub-paragraph (ii) below, the representations and warranties set out in Clause 19.5 (Validity and admissibility in evidence) and Clause 19.7 (No capital duty, filing or stamp taxes)) are deemed to be made by each Obligor (in relation to itself and, to the extent expressed to be applicable to them, its Subsidiaries (if any)) by reference to the facts and circumstances then existing on

	(a)		the date of the Utilisation Request, the first day of each Interest Period; and
	(b)		in the case of an Additional Obligor, the day on which the company becomes (or it is proposed that the company becomes) an Additional Obligor.

20.		Information Undertakings
		The undertakings in this Clause 20 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

20.1		Annual financial statements
		The Company shall supply to the Facility Agent in sufficient copies for all the Lenders as soon as the same become available, but in any event within 120 days after the end of each of its financial years:

	(a)		the Parent’s audited consolidated financial statements for that financial year; and
	(b)		the audited (and, in the case of Xstrata Coal Investments Australia Pty Limited, consolidated) financial statements of each Obligor (other than Xstrata Coal Australia Pty Limited or any Obligor incorporated in Australia, for so long as it is excluded from providing financial statements in Australia through compliance with Section 341 of the Corporations ▇▇▇ ▇▇▇▇ of Australia) for that financial year.

20.2		Half-yearly financial statements
		The Company shall supply to the Facility Agent in sufficient copies for all the Lenders as soon as the same become available, but in any event within 90 days after the end of each Accounting Half-year ending on 30 June of the financial year of the Company, the Parent’s consolidated financial statements for that Accounting Half-year.
20.3		Content of half-yearly financial statements
		Each set of half-yearly financial statements delivered pursuant to Clause 20.2 (Half-yearly financial statements) above shall include:

	(i)		a consolidated cash flow statement and profit and loss account for the relevant Accounting Half-year and for the financial year to date; and
	(ii)		a consolidated balance sheet as at the end of the relevant Accounting Half-year.

20.4		Compliance Certificate
(a)		The Company shall supply to the Facility Agent, with each set of financial statements delivered pursuant to paragraph (a) of Clause 20.1 (Annual financial statements) or Clause 20.2 (Half-yearly financial statements), a Compliance Certificate which shall:

	(i)		set out (in reasonable detail) computations as to compliance with Clause 21 (Financial covenants) as at the date at which or, as the case may be, in respect of the period for which those financial statements were drawn up;
	(ii)		confirm that no Default is continuing (or if a Default is continuing, specify the Default and the steps being taken to remedy it); and
	(iii)		in the case of a Compliance Certificate provided with financial statements delivered pursuant to paragraph (a) of Clause 20.1 (Annual financial statements) only, set out the Material Subsidiaries of the Group.

(b)

Each Compliance Certificate shall be signed on behalf of the Company by two officers of the Company.

20.5		Requirements as to financial statements
(a)		Each set of financial statements delivered by the Company pursuant to Clause 20.1 (Annual financial statements) or Clause 20.2 (Half-yearly financial statements) shall be certified by an officer of the relevant company as fairly representing its (or, as the case may be, its consolidated) financial condition and operations as at the end of and for the period in relation to which those financial statements were drawn up.
(b)		The Company shall procure that each set of financial statements of the Parent delivered pursuant to Clause 20.1 (Annual financial statements) or Clause 20.2 (Half-yearly financial statements) is prepared using GAAP, accounting practices and financial reference periods in each case consistent with the Applicable Accounting Principles unless, in relation to any set of financial statements, it notifies the Facility Agent that there has been a change in GAAP, the accounting practices or reference periods and the auditors of the Parent deliver to the Facility Agent:

	(i)		a description of any change necessary for the relevant financial statements to reflect the Applicable Accounting Principles; and
	(ii)		sufficient information, in form and substance as may be reasonably required by the Facility Agent, to enable the Lenders to determine whether Clause 21 (Financial covenants) has been complied with, to determine any other relevant matter and/or to make an accurate comparison between the financial position indicated in those financial statements and the Original Financial Statements.

		Any reference in this Agreement to those financial statements shall be construed as a reference to those financial statements as adjusted to reflect the Applicable Accounting Principles.
(c)		The Parent and the Facility Agent must, each upon the request of the other, enter into discussions for a period of not more than 90 days with a view to agreeing any amendments required to be made to this Agreement to place the Lenders in the same position as they would have been in if the change notified under paragraph (b) above had not happened. Any agreement between the Parent and the Facility Agent, with the prior consent of the Majority Lenders, will be binding on all the Parties.
20.6		Information: miscellaneous
		The Company shall supply to the Facility Agent (in sufficient copies for all the Lenders, if the Facility Agent so requests):

	(a)		all documents dispatched by the Parent to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched;
	(b)		promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against any member of the Group, and which are reasonably likely to be adversely determined and can reasonably be expected, if adversely determined, to have a Material Adverse Effect;
	(c)		promptly upon becoming aware of them, the details of any claim, notice or other communication received by it in respect of any actual or alleged breach of or liability

under Environmental Law which, if substantiated, would be reasonably likely to have a Material Adverse Effect;

(d)

promptly, notice if:

	(i)		the Parent is not or ceases to be tax resident in Switzerland;
	(ii)		Xstrata Coal AG is not or ceases to be tax resident in Australia; or
	(iii)		any other Obligor is not or ceases to be tax resident in the jurisdiction in which it is incorporated; and

(e)

promptly, such further information regarding the financial condition, business and operations of any member of the Group as any Finance Party (through the Facility Agent) may reasonably request.

20.7		Notification of default
(a)		Each Obligor shall notify the Facility Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided to the Facility Agent by another Obligor).
(b)		Promptly upon a request by the Facility Agent, the Company shall supply to the Facility Agent a certificate signed by two of its directors or senior officers on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).
20.8		“Know your customer” checks
(a)		If:

	(i)		the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;
	(ii)		any change in the status of an Obligor after the date of this Agreement; or
	(iii)		a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,

		obliges the Facility Agent or any Lender (or, in the case of paragraph (iii) above, any prospective new Lender) to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, each Obligor shall promptly upon the request of the Facility Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the event described in paragraph (iii) above, on behalf of any prospective new Lender) in order for the Facility Agent, such Lender or, in the case of the event described in paragraph (iii) above, any prospective new Lender to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
(b)		Each Lender shall promptly upon the request of the Facility Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for

itself) in order for the Facility Agent to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

(c)		The Company shall, by not less than 10 Business Days’ prior written notice to the Facility Agent, notify the Facility Agent (which shall promptly notify the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional Guarantor pursuant to Clause 25 (Changes to the Obligors).
(d)		Following the giving of any notice pursuant to paragraph (c) above, if the accession of such Additional Guarantor obliges the Facility Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall promptly upon the request of the Facility Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective new Lender) in order for the Facility Agent or such Lender or any prospective new Lender to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the accession of such Subsidiary to this Agreement as an Additional Guarantor.
21.		Financial Covenants
		The Parent shall ensure that:

	(a)		Consolidated Borrowings will not at any time exceed [***] per cent. of Total Capitalisation;
	(b)		the ratio of Consolidated Borrowings to EBITDA for any Relevant Period will not exceed [***]; and
	(c)		the ratio of EBITDA to Interest Expense in respect of any Relevant Period will not be less than [***].

22.		General Undertakings
		The undertakings in this Clause 22 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.
22.1		Authorisations
		Each Obligor shall (and the Company shall ensure that each other member of the Group will) promptly obtain, comply with and do all that is necessary to maintain in full force and effect (and supply certified copies to the Facility Agent of) any Authorisation required under any applicable law or regulation:

(a)

to enable it to perform its obligations under the Finance Documents to which it is a party;

	(b)		to ensure the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of any Finance Document to which it is a party; and
	(c)		to enable it to carry on its business as it is being conducted from time to time if failure to obtain, comply with or maintain any such Authorisation could reasonably be expected to have a Material Adverse Effect.

22.2		Compliance with laws
		Each Obligor shall (and the Company shall ensure that each other member of the Group will) comply in all respects with all laws to which it is subject, if failure so to comply would be reasonably likely to have a Material Adverse Effect.
22.3		Pari passu
(a)		Each Obligor shall ensure that its obligations, (whether actual or contingent), under the Finance Documents rank at all times at least pari passu in right of priority and payment with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by laws applying to companies generally.
(b)		The Company and each Obligor incorporated in Spain shall ensure that no other obligation of an Obligor shall be raised to or retained with the status of a Spanish Public Document other than the Existing Facility Agreement.
22.4		Negative pledge
(a)		No Obligor shall (and the Company shall ensure that no other member of the Group will) create or permit to subsist any Security over any of its assets.
(b)		No Obligor shall (and the Company shall ensure that no other member of the Group will):

	(i)		sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Group;
	(ii)		enter into or allow to subsist any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
	(iii)		enter into any other preferential arrangement having a similar effect,

		in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.
(c)		No Obligor shall (and the Company shall ensure that no other member of the Group will) sell, transfer or otherwise dispose of any of its receivables on recourse terms.
(d)		Paragraphs (a) and (b) above do not apply to:

(i)

any Security comprising a netting or set-off arrangement entered into by any member of the Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances;

	(ii)		any Security over goods and documents of title arising in the ordinary course of trading or retention of title arrangements and rights of set-off arising in the ordinary course of trading with suppliers of goods to any member of the Group;
	(iii)		any Security existing and disclosed in writing to the Facility Agent prior to the date of this Agreement provided that the amount thereby secured, as so disclosed, is not thereafter increased or its maturity extended;
	(iv)		any Security over or affecting any asset acquired by a member of the Group after the date of this Agreement, provided that:

	(A)		the Security was not created in contemplation of that acquisition;
	(B)		the amount thereby secured has not been increased in contemplation of, or since the date of, that acquisition; and
	(C)		unless the Security is in favour of a government or utility supplier and was required to be given as a condition of the person who created the Security being permitted to carry on business or being provided with utility supplies, it is removed or discharged within six months of the date of acquisition;

(v)

any Security over or affecting any asset of any company which becomes a member of the Group after the date of this Agreement, where the Security is created prior to the date on which that company becomes a member of the Group, provided that:

	(A)		the Security was not created in contemplation of the acquisition of that company;
	(B)		the amount thereby secured has not been increased in contemplation of, or since the date of, that acquisition; and
	(C)		unless the Security is in favour of a government or utility supplier and was required to be given as a condition of the person who created the Security being permitted to carry on business or being provided with utility supplies, it is removed or discharged within six months of that company becoming a member of the Group;

	(vi)		any Security created over any assets of, shares in, or debts or other obligations of a Project Company securing Project Finance Debt of that Project Company;
	(vii)		any Security in the form of cross charges over joint venture related assets granted to other joint venturers and/or the manager of the joint venture to secure obligations owed to any one or more of the other joint venturers and/or the manager under the joint venture or related agreement;
	(viii)		any Security securing indebtedness the principal amount of which (when aggregated with (A) the principal amount of any other indebtedness which has the benefit of Security given by any member of the Group, other than any permitted under paragraphs (i) to (vii) above and (B) any other Financial Indebtedness permitted under Clause 22.6(b)(vii)),

			does not exceed [***] per cent. of Total Assets at that time (or its equivalent in any other currency or currencies); or
	(ix)		any Security approved by the Majority Lenders.

22.5		Disposals
(a)		No Obligor shall (and the Company shall ensure that no other member of the Group will) enter into a single transaction or a series of transactions (whether related or not and whether voluntary or involuntary) to sell, lease, transfer or otherwise dispose of (each a “disposal”) any asset.
(b)		Paragraph (a) above does not apply to any disposal:

	(i)		of stock made in the ordinary course of trading of the disposing entity;
	(ii)		of cash:

	(A)		for the acquisition on arm’s length terms of assets permitted or required under this Agreement; or
	(B)		for any other purpose not prohibited under this Agreement;

	(iii)		constituting the creation of any Security permitted under paragraph (d) of Clause 22.4 (Negative pledge);
	(iv)		of an obsolete or redundant asset which is no longer required for the purposes of the business;
	(v)		of assets in exchange for other assets comparable or superior as to type, value and quality and location;
	(vi)		by a member of the Group to another member of the Group which is a wholly owned Subsidiary of the Parent;
	(vii)		(where the interest of the Company in the transferee is no less than its interest in the transferor) by a member of the Group to a member of the Group which is not a wholly owned Subsidiary of the Parent;
	(viii)		where the market value (when aggregated with the market value of any other sale, lease, transfer or other disposal, other than any permitted under paragraphs (i) to (vii) above) does not exceed [***] per cent. of Total Assets in any financial year of the Company; or
	(ix)		approved by the Majority Lenders,
	(x)		in respect of a Subsidiary which becomes a member of the Group after the date of this Agreement, of assets owned by that Subsidiary at the time of its acquisition during the 12 Month period following the acquisition of that Subsidiary,

provided that each disposal is (except in any case referred to in paragraph (vi)) made on arm’s length terms for full market value and would not (in each case) have a Material Adverse Effect.

(c)		Nothing in paragraphs (b)(i) to (v), (vii), (viii) or (ix) permits the disposal by any member of the Group of any shares in a Guarantor.
(d)		For the purposes of Clause 22.5(b)(vi), Asturiana de Zinc, S.A. will be considered a wholly owned Subsidiary of the Parent provided the Parent directly or indirectly owns not less than 99.98 per cent. of the shares of Asturiana de Zinc, S.A.
22.6		Restrictions on Financial Indebtedness
(a)		The Company shall ensure that no other member of the Group (other than an Obligor) will incur (or agree to incur) or have outstanding any Financial Indebtedness.
(b)		Paragraph (a) above does not apply to:

	(i)		Financial Indebtedness permitted by Clause 22.7(b);
	(ii)		Non Recourse Project Finance Debt;
	(iii)		Project Finance Debt (other than Non Recourse Project Finance Debt) the aggregate outstanding principal amount of which does not exceed $[***] (or its equivalent in any other currency or currencies);
	(iv)		Financial Indebtedness in respect of bonds issued by any financing vehicle which is a direct Subsidiary of the Parent or the Company but not a Subsidiary of any other member of the Group provided such financing vehicle does not have any Subsidiaries;
	(v)		Financial Indebtedness under the Private Placements;
	(vi)		Financial Indebtedness under Permitted Indemnities;
	(vii)		in respect of a Subsidiary becomes a member of the Group after the date of this Agreement, Financial Indebtedness of that Subsidiary at the time of its acquisition for a period of [***] following its acquisition other than any such Financial Indebtedness which the Company does not (in good faith) intend to repay within such [***]; or
	(viii)		Financial Indebtedness not falling within sub-paragraphs (i) to (vii) above, the aggregate outstanding principal amount of which (when taken together with any other Financial Indebtedness secured under Clause 22.4(d)(viii)) does not exceed [***] per cent. of Total Assets (or its equivalent in any other currency or currencies),

(c)

The Company and each Swiss Obligor shall ensure that no Swiss Borrower has interest bearing Indebtedness for Borrowed Money payable to:

	(i)		more than 10 Non-Banks in respect of this Facility Agreement; or
	(ii)		more than 20 Non-Banks (including, for the avoidance of doubt, any lenders which are members of the Group) in aggregate for each Swiss Borrower.

22.7		Loans and Guarantees
(a)		No Obligor (except for the Parent) shall (and the Company shall ensure that no other member of the Group will):

	(i)		make or allow to remain outstanding any loan, or provide any form of credit or financial accommodation, to any other person; or
	(ii)		give or issue or allow to remain outstanding any guarantee, indemnity, bond or letter of credit to or for the benefit of or in respect of the liabilities or obligations of, any other person or voluntarily assume or retain any liability (whether actual or contingent) of any other person.

(b)

Paragraph (a) above does not apply to:

	(i)		Permitted Indemnities;
	(ii)		loans or other forms of credit or financial accommodation by:

	(A)		any member of the Group to another member of a Group which is a wholly-owned Subsidiary of the Parent or (on arm’s length terms) to any other member of the Group; or
	(B)		a member of the Group to any other person on arm’s length terms in the ordinary course of business, the aggregate principal amount of which (when taken together with the amount of any liability in respect of any guarantee or indemnity permitted under subparagraph (b)(iii)(B)) does not exceed $5,000,000 (or its equivalent in any other currency or currencies);

(iii)

guarantees, indemnities, bonds or letters of credit given or issued in respect of:

(A)

the liabilities or obligations of a member of the Group which is a wholly owned Subsidiary of the Parent or (on arm’s length terms) the liabilities or obligations of a member of the Group which is not a wholly owned Subsidiary of the Parent provided that:

(1)

a member of the Group which is not an Obligor may not give or issue or allow to remain outstanding any guarantee, indemnity, bond or letter of credit to or for the benefit of or in respect of the Financial Indebtedness of a member of the Group which is an Obligor other than:

	(a)		Financial Indebtedness incurred in accordance with clause 22.6(b)(vii); or
	(b)		to the extent required to take advantage of any class order for wholly owned entities made by the Australian Security and Investments Commission under Section 341 of the Corporations ▇▇▇ ▇▇▇▇ of Australia, guarantees of Xstrata Coal Investments Australia Pty Limited, Xstrata Coal Australia Pty

Limited and of any of their wholly owned Subsidiaries, each of which is expressed to be in favour of each other; and

(2)

a member of the Group which is not an Obligor may not give or issue or allow to remain outstanding any guarantee, indemnity, bond or letter of credit to or for the benefit of or in respect of Financial Indebtedness permitted under Clause 22.6(b)(iv);

	(B)		any other liabilities or obligations, the aggregate principal amount of which (when taken together with the principal amount of any loans permitted under subparagraph (b)(ii)(B)) does not exceed $5,000,000 (or its equivalent in any other currency or currencies); and
	(C)		Project Finance Debt permitted by Clause 22.6(b)(iii);

(iv)

loans (or other forms of credit or financial accommodation) to or guarantees, indemnities, bonds or letters of credit given (“JV Loans/Guarantees”) on arm’s length terms in respect of the liabilities or obligations of a Joint Venture provided that:

	(A)		the proportion that the relevant JV Loan/Guarantee bears to the total loan (or other form of credit or financial accommodation) to or guarantee, indemnity, bond or letter of credit given in respect of the relevant Joint Venture by all the joint venture partners, will not exceed the proportion of the relevant member of the Group’s investment in that Joint Venture to the total investment of all the joint venture partners in that Joint Venture; and
	(B)		the Joint Venture is in the mining and minerals business;

	(v)		loans (for other forms of credit or financial accommodation) to, or guarantees, indemnities, bonds or letters of credit given in respect of the liabilities or obligations of, an HDSA Person by any member of the Xstrata South Africa Group for the purpose of enabling any member of the Xstrata South Africa Group to comply with the requirements of the MPRD Act and the regulations and practice notes issued pursuant to the MPRD Act from time to time;
	(vi)		Stock lending transactions entered into by any member of the Group.

(c)		For the purposes of this Clause 22.7, Asturiana de Zinc, S.A. will be considered a wholly owned Subsidiary of the Parent provided the Parent directly or indirectly owns not less than 99.98 per cent. of the shares of Asturiana de Zinc, S.A.
22.8		Upstreaming of excess cash
		Each Obligor shall (and the Company shall procure that each other member of the Group will), subject to applicable laws and regulations, use reasonable endeavours to ensure that any cash or cash equivalent investments which the Company determines (acting reasonably) are held by any member of the Group in excess of its reasonable projected cash requirements for the following 60 days and which are available, are reasonably promptly transferred (by way of payment of interest or principal on intra-Group loans, dividends or otherwise) to an Obligor, provided that no member of the Group should be obliged to transfer or procure such transfer

from any member of the Group when as a result of doing so, any member of the Group would be likely to incur any material net cost or liability in respect of such transfer.

22.9		Change of business
		The Company shall procure that no substantial part of the business of the Group is a business other than the mining and minerals business.
22.10		Merger
		No Obligor shall enter into any amalgamation, demerger, merger or corporate reconstruction without the prior written consent of the Facility Agent.
22.11		Insurance
		Each Obligor shall (and the Company shall ensure that each other member of the Group will) maintain insurances on and in relation to its business and assets with reputable underwriters or insurance companies:

	(i)		against those risks, and to the extent, usually insured against by prudent companies located in the same or a similar location and carrying on a similar business; and
	(ii)		against those risks, and to the extent, required by applicable law or by contract.

22.12		Environmental undertakings
		Each Obligor shall (and the Company shall ensure that each other member of the Group will):

	(a)		comply with all Environmental Laws to which it is subject;
	(b)		comply with the Environmental Policy;
	(c)		obtain all Environmental Licences required in connection with its business; and
	(d)		comply with the terms of all those Environmental Licences,

in each case where failure to do so would be reasonably likely to have a Material Adverse Effect.

22.13		Taxes
(a)		Each Obligor shall (and the Company shall ensure that each other member of the Group will) pay all Taxes required to be paid by it when due (or, if later, before any interest, fines or penalties are imposed or any Security could be imposed ranking in priority to the claims of any Finance Party).
(b)		Paragraph (a) above does not apply to any Taxes:

	(i)		being contested by the relevant member of the Group in good faith and in accordance with the relevant procedures;
	(ii)		for which adequate reserves are being maintained in accordance with Applicable Accounting Principles; and
	(iii)		where payment can be lawfully withheld and will not result in the imposition of any interest, fines or penalties or Security as described in paragraph (a) above.

22.14		Raising to Spanish Public Document Status
		The Company shall ensure that it shall, as soon as possible and in any event within 10 Business Days of the date of this Agreement, raise this Agreement to the status of Spanish Public Document.
22.15		Prepayment or cancellation
		The Company shall ensure that no member of the Group prepays or cancels Indebtedness for Borrowed Money prior to the date upon which the Facility is repaid and cancelled in full, unless otherwise agreed by the Majority Lenders.
23.		Events of Default
		Each of the events or circumstances set out in Clause 23 is an Event of Default.
23.1		Non-payment
		An Obligor does not pay on the due date any amount payable pursuant to a Finance Document at the place and in the currency in which it is expressed to be payable unless

	(a)		its failure to pay is caused by administrative or technical error; and
	(b)		payment is made within two Business Days of its due date.

23.2		Financial covenants
		Any requirement of Clause 21 (Financial covenants) is not satisfied.
23.3		Other obligations
(a)		An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 23.1 (Non-payment) or Clause 23.2 (Financial covenants)).
(b)		No Event of Default under paragraph (a) above in relation to Clause 22.1 (Authorisations) will occur if the failure to comply is capable of remedy and is remedied within 15 days of the Facility Agent giving notice to the Company or the Company becoming aware of the failure to comply.
23.4		Misrepresentation
		Any representation or statement made or deemed to be made by any person other than a Finance Party in the Finance Documents or any other document delivered by or on behalf of any Obligor under or in connection with any Finance Document is or proves to have been incorrect or misleading in any material respect when made or deemed to be made.
23.5		Cross default
(a)		Any Financial Indebtedness of any member of the Group (other than Non Recourse Project Finance Debt) is not paid when due nor within any originally applicable grace period.
(b)		Any Financial Indebtedness of any member of the Group (other than Non Recourse Project Finance Debt) is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described) under the document relating to that Financial Indebtedness.

(c)		Any commitment for any Financial Indebtedness of any member of the Group (other than Non Recourse Project Finance Debt) is cancelled or suspended by a creditor of any member of the Group as a result of an event of default (however described) under the document relating to that Financial Indebtedness.
(d)		Any creditor of any member of the Group becomes entitled to declare any Financial Indebtedness of any member of the Group (other than Non Recourse Project Finance Debt) due and payable prior to its specified maturity as a result of an event of default (however described) under the document relating to that Financial Indebtedness.
(e)		No Event of Default will occur under this Clause 23.5 if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (a) to (d) above is less than $[***] (or its equivalent in any other currency or currencies).
23.6		Insolvency
(a)		An Obligor or a Material Subsidiary (other than a Non Recourse Project Company) is or is deemed by law unable or admits inability to pay its debts as they fall due, suspends, or threatens to suspend, making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.
(b)		The value of the assets of an Obligor or a Material Subsidiary (other than a Non Recourse Project Company) is less than its liabilities (taking into account contingent and prospective liabilities).
(c)		A moratorium is declared in respect of any indebtedness of an Obligor or a Material Subsidiary (other than a Non Recourse Project Company).
(d)		The net equity of a Swiss Obligor is less than one half of its share capital and legal reserves and such shortfall is not cured in a lasting manner within sixty (60) days of (i) such Swiss Obligor’s board of directors becoming aware or (ii) the date on which they should have become aware, of such deficiency.
(e)		In the case of any Material Subsidiary incorporated in South Africa:

	(i)		that Material Subsidiary commits an act of insolvency as described in section 8 of the South African Insolvency Act, 1936; or
	(ii)		that Material Subsidiary is placed under judicial management.

23.7		Insolvency proceedings
		Any corporate action, legal proceedings or other procedure or step is taken in relation to:

(a)

the declaration of insolvency, the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Obligor or Material

			Subsidiary (other than a solvent liquidation or reorganisation of any Material Subsidiary which is not an Obligor);
	(b)		a composition (“convenio extra judicial o judicial con sus acreedores” in relation to any company incorporated in Spain), assignment, compromise or arrangement with any creditor of any Obligor or Material Subsidiary;
	(c)		the appointment of a liquidator, receiver, administrator, administrative receiver, compulsory manager or other similar officer in respect of any Obligor or Material Subsidiary or any of its assets;
	(d)		the enforcement of any Security over any assets of any Obligor or Material Subsidiary; or
	(e)		the postponement of the declaration of bankruptcy in accordance with the art.725a of the Swiss Code of Obligations in relation to a Swiss Obligor,

		or any analogous procedure or step is taken in any jurisdiction including in relation to any company incorporated in Spain (i) the initiation by any Obligor or Material Subsidiary of insolvency proceedings (solicitud de inicio de procedimiento judicial de concurso) and (ii) the initiation by any person of proceedings requesting a judicial resolution declaring the insolvency (auto de declaración de concurso) any Obligor or Material Subsidiary.
23.8		Creditors’ process
		Any expropriation, attachment, sequestration, distress or execution affects any asset or assets of any Obligor or Material Subsidiary and is not discharged within 28 days.
23.9		Ownership
(a)		Any Obligor (other than the Parent, the Company, Asturiana de Zinc, S.A. and any direct or indirect Subsidiary of Asturiana de Zinc, S.A.) is not or ceases to be a wholly-owned Subsidiary of the Company.
(b)		Less than 99.98 per cent. of the shares of Asturiana de Zinc, S.A. are owned directly or indirectly by the Parent.
(c)		The Company is not or ceases to be a wholly-owned Subsidiary of the Parent.
23.10		Unlawfulness
		It is or becomes unlawful for any person other than a Finance Party to perform any of its obligations under the Finance Documents.
23.11		Repudiation
		Any person other than a Finance Party repudiates a Finance Document or evidences an intention to repudiate a Finance Document.
23.12		Guarantees
		Any guarantee or indemnity in or any subordination effected under any Finance Document is not in full force and effect.

23.13		Nationalisation/Political risk
(a)		Any step is taken by any person with a view to:

	(i)		the seizure, compulsory acquisition, expropriation or nationalisation of any or all of the assets, shares or revenues of any member of the Group which would be reasonably likely to have a Material Adverse Effect; or
	(ii)		wholly or partially displacing the management of any Obligor or of any other member of the Group or wholly or partially curtailing the authority of an Obligor or any other member of the Group in the conduct of its business which, in the case of a member of the Group which is not an Obligor, would be reasonably likely to have a Material Adverse Effect.

(b)

Any act of armed conflict, rebellion, riot, civil commotion, strikes of a political nature, act or campaign of terrorism, or sabotage of a political nature occurs which the Majority Lenders determine has or would be reasonably likely to have a Material Adverse Effect.

23.14		Litigation
		Any litigation, arbitration or administrative proceedings are commenced or threatened by or against any member of the Group or its respective assets in each case which are reasonably likely to be adversely determined against that member of the Group and, if so determined, can reasonably be expected to have a Material Adverse Effect.
23.15		Material adverse change
		Any event or circumstance occurs which the Majority Lenders determine has or could reasonably be expected to have a Material Adverse Effect.
23.16		Acceleration
		On and at any time after the occurrence of an Event of Default which is continuing the Facility Agent may, and shall if so directed by the Majority Lenders, by notice to the Company:

	(a)		cancel the Total Commitments whereupon they shall immediately be cancelled;
	(b)		declare that all or part of the Utilisations, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable; and/or
	(c)		declare that all or part of the Utilisations be payable on demand, whereupon they shall immediately become payable on demand by the Facility Agent on the instructions of the Majority Lenders.

SECTION 9

CHANGES TO PARTIES

24.		Changes to the Lenders
24.1		Assignments and transfers by the Lenders
		Subject to this Clause 24, a Lender (the “Existing Lender”) may:

	(a)		assign any of its rights (legal, beneficial or economic); or
	(b)		transfer by novation any of its rights and obligations (in each case legal, beneficial or economic),
	to another bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (the “New Lender”).

24.2		Conditions of assignment or transfer
(a)		The consent of the Company is required for an assignment or a transfer by a Lender unless:

	(i)		the assignment or transfer is to another Lender or to an Affiliate of a Lender, in each case, other than a Non-Bank; or
	(ii)		if to a Bank, an Event of Default is continuing and, if to a Non-Bank, a notice has been given by the Facility Agent under Clause 23.16 (Acceleration) and the Majority Lenders consent to the assignment or transfer.

(b)		The consent of the Company to an assignment or transfer must not be unreasonably withheld or delayed. Except in the case of an assignment or transfer to a Non-Bank, the Company will be deemed to have given its consent five Business Days after receipt of a request from the Lender unless consent is expressly refused by the Company within that time.
(c)		The consent of the Company to an assignment or transfer must not be withheld solely because the assignment or transfer may result in an increase to the Mandatory Cost.
(d)		An assignment will only be effective on:

	(i)		receipt by the Facility Agent of written confirmation from the New Lender (in form and substance satisfactory to the Facility Agent) that the New Lender will assume the same obligations to the other Finance Parties as it would have been under if it was an Original Lender and shall not be effective if the purported New Lender is a Non-Bank which the Company has not consented to in accordance with this Clause 24.2; and
	(ii)		performance by the Facility Agent of all “know your customer” or other checks relating to any person that it is required to carry out in relation to such assignment to a New Lender, the completion of which the Facility Agent will promptly notify to the Existing Lender and the New Lender.

(e)

A transfer will only be effective if the procedure set out in Clause 24.6 (Procedure for transfer) is complied with.

(f)

Subject to paragraph (e) below, if:

	(i)		a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and
	(ii)		as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 13 (Tax gross-up and indemnities) or Clause 14 (Increased costs),

		then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under those Clauses to the same extent as the Existing Lender or Lender acting through its previous Facility Office would have been if the assignment, transfer or change had not occurred.
(g)		Paragraph (d) above and Clause 24.4 (Assignment or transfer fee) shall not apply to any assignment or transfer referred to in paragraph (a) (ii) above.
24.3		Assignment or transfer fee
		The New Lender shall, on the date upon which an assignment or transfer takes effect otherwise than as a result of the syndication of the Facilities, pay to the Facility Agent (for its own account) a fee of $1,500.
24.4		Limitation of responsibility of Existing Lenders
(a)		Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:

	(i)		the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;
	(ii)		the financial condition of any Obligor;
	(iii)		the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or
	(iv)		the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,

		and any representations or warranties implied by law are excluded.
(b)		Each New Lender confirms to the Existing Lender and the other Finance Parties that it:

	(i)		is solely responsible for making its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and
	(ii)		will continue to be solely responsible for making its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.

(c)

Nothing in any Finance Document obliges an Existing Lender to:

	(i)		accept a re-transfer from a New Lender of any of the rights and obligations assigned or transferred under this Clause 24; or
	(ii)		support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.

24.5		Procedure for transfer
(a)		Subject to the conditions set out in this Clause 24 a transfer is effected in accordance with paragraph (b) below when the Facility Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Facility Agent shall, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate.
(b)		On the Transfer Date:

	(i)		to the extent that in the Transfer Certificate the Existing Lender seeks to transfer its rights and obligations under the Finance Documents by novation, each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and their respective rights against one another (other than under the Notes and the Loans they represent) shall be cancelled (being the “Discharged Rights and Obligations”);
	(ii)		each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender;
	(iii)		the Facility Agent, the Mandated Lead Arrangers, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Facility Agent, the Mandated Lead Arrangers, and the Existing Lender shall each be released from further obligations to each other under this Agreement; and
	(iv)		the New Lender shall become a Party as a “Lender”.

24.6		Disclosure of information
		Any Lender may disclose to any of its Affiliates and any other person:

	(a)		to (or through) whom that Lender assigns or transfers (or may potentially assign or transfer) all or any of its rights and obligations under this Agreement;
	(b)		with (or through) whom that Lender enters into (or may potentially enter into) any sub-participation in relation to, or any other transaction under which payments are to be made by reference to, this Agreement or any Obligor; or