US$250,000,000 Facility Agreement WMC Finance Limited the Lenders with Commonwealth Bank of Australia acting as Agent and Arranger

Exhibit 4(K)

US$250,000,000

WMC Finance Limited

the Lenders

with

Commonwealth Bank of Australia

acting as Agent and Arranger


WMC Finance Limited

▇▇▇▇▇ ▇▇, ▇▇▇ Centre, ▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇

GPO Box 860K, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇

Telephone: ▇▇▇ (▇)▇ ▇▇▇▇ ▇▇▇▇, Facsimile: ▇▇▇ (▇)▇ ▇▇▇▇ ▇▇▇▇

Facility Agreement

Table of Contents


1.	Definitions And Interpretation		1

	1.1	Definitions	1
	1.2	Construction	12

2.	The Facility		14

	2.1	The Facility	14
	2.2	Lenders’ rights and obligations	14

3.	Purpose		14

	3.1	Purpose	14
	3.2	Monitoring	14

4.	Conditions of Utilisation		14

	4.1	Initial conditions precedent	14
	4.2	Further conditions precedent	15
	4.3	Maximum number of Loans	15

5.	Utilisation		16

	5.1	Delivery of a Utilisation Request	16
	5.2	Completion of a Utilisation Request	16
	5.3	Currency and amount	16
	5.4	Lenders’ participation	17

6.	Reliquefication Bills		17

7.	Cancellation and voluntary prepayment		18

	7.1	Voluntary cancellation	18
	7.2	Voluntary prepayment of Loans	18
	7.3	Right of repayment and cancellation in relation to a single Lender	18
	7.4	Prepayment for Currency Fluctuations	18
	7.5	Restrictions	19

8.	Interest		20

	8.1	Calculation of interest	20
	8.2	Default interest	20
	8.3	Notification of rates of interest	20

9.	Interest periods		20

	9.1	Selection of Interest Periods	20
	9.2	Non-Business Days	20

10.	Changes to the calculation of interest		21

	10.1	Absence of quotations	21
	10.2	Market disruption	21
	10.3	Alternative basis of interest or funding	21

11.	Break costs		21

12.	Fees		22

	12.1	Commitment fees	22
	12.2	Establishment Fee	22
	12.3	Agent’s fee	22

13.	Tax Gross Up and Indemnities		23

	13.1	Definitions	23
	13.2	Tax gross-up	23

Facility Agreement


	13.3	Tax indemnity	24
	13.4	Tax Credit	24
	13.5	Stamp duties and Taxes	24
	13.6	Indirect Tax	24

14.	Increased costs		25

	14.1	Increased costs	25
	14.2	Increased cost claims	25
	14.3	Exceptions	26

15.	Indemnities		26

	15.1	Currency indemnity	26
	15.2	Other indemnities	26
	15.3	Indemnity to the Agent	27

16.	Mitigation by the lenders		27

	16.1	Mitigation	27
	16.2	Limitation of liability	27

17.	Costs and expenses		28

	17.1	Transaction expenses	28
	17.2	Amendment costs	28
	17.3	Enforcement costs	28

18.	Guarantee and indemnity		29

	18.1	Guarantee and indemnity	29
	18.2	Continuing guarantee	29
	18.3	Reinstatement	29
	18.4	Waiver of defences	29
	18.5	Immediate recourse	30
	18.6	Appropriations	30
	18.7	Deferral of Guarantors’ rights	30
	18.8	Additional security	31

19.	Representations		32

	19.1	Status	32
	19.2	Binding obligations	32
	19.3	Non-conflict with other obligations	32
	19.4	Power and authority	32
	19.5	Validity and admissibility in evidence	32
	19.6	Governing law and enforcement	33
	19.7	Deduction of Tax	33
	19.8	No filing or stamp taxes	33
	19.9	No default	33
	19.10	No misleading information	33
	19.11	Financial statements	33
	19.12	Pari passu ranking	34
	19.13	No proceedings pending or threatened	34
	19.14	Trustee	34
	19.15	Authorised Signatures	34
	19.16	Repetition	34

20.	Information undertakings		34

	20.1	Financial Statements	34
	20.2	Compliance Certificate	34
	20.3	Requirements as to Financial Statements	35
	20.4	Information: miscellaneous	35
	20.5	Notification of default	35

21.	Financial covenants		36

.Facility Agreement


22.	General undertakings		36

	22.1	Authorisations	36
	22.2	Compliance with laws	36
	22.3	Negative pledge	36
	22.4	Disposals	39
	22.5	Merger	40
	22.6	Change of business	40
	22.7	Environmental	40
	22.8	Insurance	40
	22.9	Distributions to shareholders	40
	22.10	Maximum non- Financial Indebtedness	40
	22.11	Conduct of Business	40
	22.12	Constitution	41
	22.13	Derivative transactions	41
	22.14	Non-Arm’s Length Transactions with Related Parties	41
	22.15	No Upstream Guarantees	41
	22.16	Class Order ▇▇▇▇▇▇▇▇▇▇	▇▇

▇▇.	Events of default		42

	23.1	Non-payment	42
	23.2	Other obligations	42
	23.3	Misrepresentation	42
	23.4	Cross default	42
	23.5	Insolvency	43
	23.6	Insolvency proceedings	43
	23.7	Creditors’ process	43
	23.8	Ownership of the Borrower	44
	23.9	Unlawfulness or Unenforceability	44
	23.10	Repudiation	44
	23.11	Material Adverse Effect	44
	23.12	Acceleration	44
	23.13	Review event	44

24.	Changes to the lenders		46

	24.1	Assignments and transfers by the Lenders	46
	24.2	Conditions of assignment or transfer	46
	24.3	Assignment or transfer fee	46
	24.4	Limitation of responsibility of Existing Lenders	47
	24.5	Procedure for transfer	47
	24.6	Disclosure of information	48

25.	Changes to the Obligors		49

	25.1	Assignments and transfer by Obligors	49

26.	Role of the Agent		50

	26.1	Appointment of the Agent	50
	26.2	Duties of the Agent	50
	26.3	Role of the Arranger	50
	26.4	No fiduciary duties	50
	26.5	Business with the Group	51
	26.6	Rights and discretions of the Agent	51
	26.7	Majority Lenders’ instructions	51
	26.8	Responsibility for documentation	52
	26.9	Exclusion of liability	52
	26.10	Lenders’ indemnity to the Agent	52
	26.11	Resignation of the Agent	52
	26.12	Confidentiality	53
	26.13	Relationship with the Lenders	53
	26.14	Credit appraisal by the Lenders	53
	26.15	Reference Banks	54
	26.16	Agent’s Management Time	54

Facility Agreement


27.	Conduct of business by the Finance Parties		54

28.	Sharing among the Lenders		54

	28.1	Payments to Lenders	54
	28.2	Redistribution of payments	55
	28.3	Reversal of redistribution	56
	28.4	Exceptions	56

29.	Payment Mechanics		57

	29.1	Payments to the Agent	57
	29.2	Distributions by the Agent	57
	29.3	Distributions to an Obligor	57
	29.4	Clawback	58
	29.5	Partial payments	58
	29.6	No set-off by Obligors	58
	29.7	Business Days	58
	29.8	Currency of account	59
	29.9	Netting on rollover	59

30.	Set-off		59

31.	Notices		59

	31.1	Communications in writing	59
	31.2	Addresses	59
	31.3	Delivery	60
	31.4	Electronic transmission of notice by or to the Agent	60
	31.5	Notification of address, fax number and email address	61
	31.6	Reliance	61
	31.7	English language	61

32.	Calculations and Certificates		61

	32.1	Accounts	61
	32.2	Certificates and Determinations	61
	32.3	Day count convention	61

33.	Partial invalidity		62

34.	Remedies and waivers		62

35.	Amendments and waivers		62

	35.1	Required consents	62
	35.2	Exceptions	62

36.	Counterparts		63

37.	Governing Law		64

38.	Enforcement		64

	38.1	Jurisdiction	64
	38.2	Service of process	64

SCHEDULE 1 - THE GUARANTOR AND THE LENDERS			65

SCHEDULE 2 - CONDITIONS PRECEDENT			67

SCHEDULE 3 - REQUESTS			69

SCHEDULE 4 - FORM OF TRANSFER CERTIFICATE			70

This Transfer Certificate is governed by Victorian law. THE SCHEDULE - COMMITMENT/RIGHTS AND OBLIGATIONS TO BE TRANSFERRED			70

SCHEDULE 5 - FORM OF COMPLIANCE CERTIFICATE			71

SCHEDULE 6 - TIMETABLES			72

Facility Agreement

THIS AGREEMENT is dated [ ] and made between:

1.	WMC Finance Limited (ABN 83 008 569 560) of ▇▇▇▇▇ ▇▇, ▇▇▇ Centre, ▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ (the ‘Borrower’);

2.	WMC Resources Ltd (ABN 76 004 184 598) (the ‘Guarantor’);

3.	The entities listed in Part II of Schedule 1 (the ‘Lenders’);

4.	Commonwealth Bank of Australia (ABN 48 123 123 124) of ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ (the ‘Agent’ and the ‘Arranger’).

IT IS AGREED as follows:

Section 1 - Interpretation

1.	Definitions And Interpretation

1.1

Definitions

In this Agreement:

‘A$’ or ‘Australian dollars’ means the lawful currency of Australia.

‘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.

‘Agent’s Spot Rate of Exchange’ means the Agent’s spot rate of exchange for the purchase of the relevant currency with the Base Currency in the Sydney foreign exchange market at or about 11:00 a.m. (Sydney time) on a particular day.

‘Authorisation’ means:

(a)

an authorisation, consent, approval, resolution, licence, exemption, filing, lodgement or registration; or

(b)

in relation to anything which will be fully or partly prohibited or restricted by law if a Governmental Agency 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, in relation to the Facility, the period from and including the date the Agent notifies the Borrower that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Schedule 2 (Conditions Precedent) until the date which is 1 month prior to the Maturity Date for the Facility.

‘Available Commitment’ means, in relation to the Facility, a Lender’s Commitment under that Facility minus:

(a)

the Base Currency Amount of its participation in any outstanding Loans under the Facility; and

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Facility Agreement

(b)

in relation to any proposed Utilisation, 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 other than the Lender’s participation in Loans under any Facility that are due to be repaid or prepaid on or before the proposed Utilisation Date.

‘Available Facility’ means, in relation to the Facility, the aggregate for the time being of each Lender’s Available Commitment in respect of that Facility.

‘Base Currency’ means US$.

‘Base Currency Amount’ means, in relation to a Loan, the amount specified in the Utilisation Request delivered by the 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 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 Agent receives the Utilisation Request) adjusted to reflect any repayment (other than a repayment arising from a change of currency), prepayment, consolidation or division of the Loan.

‘Base Rate’ means in relation to Loans in Australian dollars, BBR, and in relation to Loans in United States dollars, LIBOR.

‘BBR’ means, in relation to any Loan:

(a)

the applicable Screen Rate; or

(b)

(if no such rate is available for the Interest Period for that Loan, or if the basis on which that rate is displayed is changed and in the opinion of the Agent it ceases to reflect the Lenders’ cost of funding), the arithmetic mean of the buying rates (rounded up to four decimal places) as supplied to the Agent at its request by 3 Reference Banks,

as at the Specified Time on the Quotation Day for the purchase of bills of exchange accepted by a leading Australian bank of a term comparable to the Interest Period for that Loan.

Rates will be expressed as a yield percent per annum to maturity.

‘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 or acquiring a ▇▇▇▇ of exchange accepted by 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 Sydney, Melbourne and:

(a)

(where the Base Rate is LIBOR), London; or

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Facility Agreement

(b)

(in relation to any date for payment or purchase of US$), New York City.

‘Calculation Date’ means 30 June and 31 December in each year.

‘Class Order Guarantee’ means the guarantee dated 18 December 2002 and entered into by WMC Resources Ltd and other members of the Group.

‘Class Order Guarantor’ means a member of the Group which is guarantor under the Class Order Guarantee.

‘Commitment’ means in relation to each Lender, the amount in the Base Currency set out opposite its name in Part II of Schedule 1 and the amount of any other commitment transferred to it under this Agreement to the extent not cancelled, reduced or transferred by it under this Agreement.

‘Commitment Letter’ means the Commitment Letter dated [ ] from the Lenders to the Borrower, as accepted by the Borrower on [ ].

‘Completion’ means, in relation to a project or development, the point in time at which the completion tests relating to that project or development have been satisfied in accordance with their terms (as varied by agreement between the parties).

‘Compliance Certificate’ means a certificate substantially in the form set out in Schedule 4 (Form of Compliance Certificate).

‘Control’ of a corporation means having either:

(a)

the capacity to determine the outcome of decisions about the corporation’s financial and operating policies; or

(b)

an interest of more than 49.9% in voting shares (as defined in the Corporations Act) in that corporation or in any category of the profits, distributions or net liquidation proceeds of that corporation.

‘Corporations Act’ means the Corporations ▇▇▇ ▇▇▇▇ (Cth);

‘Default’ means:

(a)

an Event of Default; or

(b)

any event or circumstance described in Clause 23 (Events of Default) which is not yet an Event of Default but which would (with the expiry of a grace period, 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.

‘Defeasance Arrangement’ means an arrangement pursuant to which money or securities are paid to, or deposited with, a depositary in the amount designed to pay, service, redeem or satisfy any liability in respect of any notes, bonds debentures or other indebtedness.

‘Derivative Transaction’ means a swap, option, hedge, forward, futures or similar transaction.

‘EBITDA’ means, in relation to the Group and with respect to any reporting period ending on a Calculation Date covered by the Financial Statements, the consolidated net earnings of the Group for that period as shown in the Financial Statements (without duplication):

(a)

before any deduction of income tax;

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Facility Agreement

(b)

before any deduction of Total Interest;

(c)

before amortisation and depreciation;

(d)

before significant items;

(e)

after adding-back (if deducted from Group earnings) or deducting (if added to Group earnings) non cash items;

(f)

before unrealised exchange gains and losses.

‘Economic Interest’ means any direct or (through interposed persons or otherwise) indirect interest, and includes Equities in a person or contractual or other legally binding relations with a person under a participation or revenue or profit sharing agreement in connection with a project or development.

‘Environment’ includes the meaning given to that term in any legislation in force in any jurisdiction where the Group conducts its business, and also includes the physical, atmospheric and climatic composition of the surrounds or habitats of being including, without limitation, human, animal, plant and insect, the biological factor or beings and the social factor of aesthetics.

‘Environmental Law’ means a law (whether statute or common law) regulating or otherwise relating to the Environment, including but not limited to any law relating to land use, planning, heritage, coastal protection, water catchments, pollution of air or water, noise, smell, soil or ground water contamination, chemicals, waste, pesticides, use of dangerous goods or hazardous substances, the ozone layer, building regulation, public and occupational health and safety, food, health, noxious trades or any other aspect of protection of the Environment or the enforcement or administration of those laws..

‘Equity’ means any stock, share, unit or other equity interest.

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

‘Facility’ means the cash advance loan facilities made available under this Agreement as described in Clause 2 (The Facility).

‘Facility Office’ means the office or offices notified by a Lender to the 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 letter or letters from either the Arranger or the Agent, directed to the Borrower and setting out any of the fees referred to in Clause 12 (Fees).

‘Finance Document’ means this Agreement, any Fee Letter, the Commitment Letter and any other document designated as such by the Agent and the Borrower.

‘Finance Party’ means the Agent or a Lender.

‘Financial Indebtedness’ means any indebtedness for or in respect of:

(a)

moneys borrowed;

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Facility Agreement

(b)

any amount raised under any acceptance credit, ▇▇▇▇ acceptance or ▇▇▇▇ endorsement 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, 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 (and, when calculating the value of any Derivative Transaction, only the marked to market value shall be taken into account);

(h)

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

(i)

the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.

‘Financial Statements’ means the consolidated Group financial statements (as that term is defined in the Corporations Act) together with any other statements, reports (including any directors’ and auditor’s reports) and notes attached to or intended to be read with any of them. For the avoidance of doubt, these must be prepared for both the Group and the Guarantor.

‘GAAP’ means generally accepted accounting principles in Australia.

‘Governmental Agency’ means any government or any governmental, semi-governmental or judicial entity or authority. It also includes any self-regulatory organisation established under statute or any stock exchange.

‘Group’ means at any time, the corporate group comprising WMC Resources Ltd and its Subsidiaries.

‘Guarantor’ means WMC Resources Ltd.

‘Holding Company’ means, in relation to the Borrower or a company or a corporation, any other company or corporation in respect of which it is a Subsidiary.

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

‘Insurances’ means the insurance policies contemplated by Clause 22.8.

‘Intangible Assets’ means goodwill, patents, trademarks, trade names and all other intangible assets as defined in GAAP.

‘Interest Period’ means, in relation to a Loan, each period determined in accordance with Clause 9 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with [ ].

‘Joint Venture’ means a partnership, joint venture (including a corporation the only

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Facility Agreement

shareholders of which are party to a joint venture), unincorporated organisation whose business substantially consists of or is related to the exploration, development, mining and/or exploitation (including processing, transportation, marketing and any other related activity) of minerals, metals or fertilisers.

‘Lender’ means:

(a)

the entities listed in Part II of Schedule 1; and

(b)

any bank or financial institution which has become a Party in accordance with Clause 24 (Changes to the Lenders),

which in each case has not ceased to be a Party in accordance with the terms of this Agreement.

‘LIBOR’ means, in relation to any Loan:

(a)

the applicable Screen Rate; or

(b)

(if no such rate is available for the period of that Loan) the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the 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 US$ and for a period comparable to the Interest Period for that Loan.

‘Limited Recourse Debt’ means Project Debt incurred by a member of the Group which, as a matter of contract binding all relevant parties at the time it is incurred and at all times before Completion:

(a)

will automatically become Non-Recourse Debt upon Completion; or

(b)

the member of the Group will cease to be liable to pay or repay upon Completion (and no other member of the Group becomes so liable unless the debt is Non-Recourse Debt),

in either case, without the need for any further act of or by any party. If, for any reason:

(c)

at any time before Completion, the condition described in (a) or (b) (as the case may be) ceases to apply; or

(d)

at Completion, the debt does not become Non-Recourse Debt, or a member of the Group remains liable to pay or repay the debt (as the case may be); or

(e)

at any time after Completion, the debt either ceases to be Non-Recourse Debt or a member of the Group becomes liable to pay it (as the case may be); or

(f)

despite Completion not having occurred within the terms of the relevant document, the relevant party or parties either deem Completion to have occurred or waive the requirement to satisfy the terms of the relevant document regarding the concept of Completion,

then the debt will immediately and automatically at that time cease to be ‘Limited Recourse Debt’ for the purposes of this agreement.

‘Loan’ means a loan made or to be made under the Facility, or the principal amount outstanding for the time being of a loan under the Facility. To avoid doubt, this includes a Swingline Loan.

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Facility Agreement

‘Majority Lenders’ means:

(a)

if there are no Loans then outstanding, a Lender or Lenders whose Commitments aggregate more than 66²/3% of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 66²/3% of the Total Commitments immediately prior to the reduction); or

(b)

at any other time, a Lender or Lenders whose participations in the Loans then outstanding aggregate more than 66²/3% of all the Loans then outstanding.

‘Margin’ means with respect to a Loan, the rate set out in the table below opposite the S&P Credit Rating of the Guarantor as at the Quotation Day of an Interest Period for that Loan:


S& P Credit Rating		Facility Margin % p.a.
A- or better		0.45
BBB+		0.50
BBB		0.55
BBB-		0.70
BB+ or lower or unrated		0.95

The Margin applicable to the Loan will not change during that Interest Period. For the purposes of the commitment fee under Clause 12.1, the Margin will change on the same date the above S&P Credit Rating changes.

‘Material Adverse Effect’ means a material adverse effect on:

(a)

the business, operation, or financial condition of the Group taken as a whole; or

(b)

the ability of the Obligors (taken as a whole) to perform their material obligations under the Finance Documents; or

(c)

the validity or enforceability of all or any material part of this Agreement or the rights or remedies of any Finance Party under all or any material part of the Finance Documents.

‘Maturity Date’ means in relation to the Facility, the last day of a two year period starting on (and including) the date of this Agreement, subject to a 364 day extension at the Borrower’s discretion and the unanimous consent of the Lenders.

‘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)

(subject to paragraph (c) below) 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;

(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; and

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Facility Agreement

(c)

if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.

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

‘Net Tangible Assets’ means, in relation to the Group and with respect to any reporting period ending on a Calculation Date covered by the Financial Statements, the amount shown by those Financial Statements as total shareholders’ equity of the Group after (without duplication):

(a)

including the amount of reserves and retained earnings;

(b)

deducting the amount of all dividends which have been declared;

(c)

excluding outside equity interests;

(d)

[excluding any increases in the asset revaluation reserves arising after 31 December 2003;] and

(e)

excluding the amount of any Intangible Assets.

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

(a)

the person to whom the Project Debt is owed (or any agent or trustee on that person’s behalf) does not have recourse (whether by way of execution, set-off or otherwise) to any member of the Group or its assets for the payment or repayment of the Project Debt other than to assets which the Securities (‘Project Securities’) securing that Project Debt are permitted to extend to under Clause 22.3(c)(ix) (that person, and any agent or trustee on that person’s behalf, being a ‘Non-Recourse Finance Party’);

(b)

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

(c)

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

(d)

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

It includes any Project Debt if:

(e)

all or substantially all of the assets of the only members of the Group to which the Non-Recourse Finance Party may have recourse for the payment or repayment that Project Debt, comprise assets encumbered by Project Securities; and

(f)

where the Non-Recourse Finance Party may have recourse to assets of other members of the Group which are subject to Project Securities but which do not fit the description in (e) above, such Project Debt would otherwise comprise Non-Recourse Debt under paragraphs (a) to (d) inclusive above.

‘Obligor’ means the Borrower or WMC Resources Ltd.

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‘Original Financial Statements’ means the Financial Statements of the Group for the 6 months ended 31 December 2003.

‘Party’ means a party to this Agreement and includes its successors in title, permitted assigns and permitted transferees.

‘Project Activity’ means:

(a)

the acquisition, exploration, drilling, development, construction, extension, expansion or improvement of any asset in which no member of the Group has any Economic Interest as at the date of this Agreement; or

(b)

the exploration, drilling, development, construction, extension, expansion or improvement of any asset in which a member of the Group has, as at the date of this agreement, an Economic Interest but in respect of which none of those activities (other than exploration and drilling) has commenced as at the date of this Agreement.

‘Project Debt’ means, with respect to a project or development:

(a)

Financial Indebtedness comprising all or a substantial part of the price and/or cost of Project Activities in connection with the project or development; or

(b)

Financial Indebtedness incurred:

(i)

before or at the time of carrying out of Project Activities; or

(ii)

within 270 days of completion of the last of the Project Activities in connection with the project or development,

solely for the purposes of financing or refinancing all or a substantial part of the price and/or cost of the Project Activities in connection with the project or development; or

(c)

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

(d)

any liabilities under Derivative Transactions entered into in connection with any of the above Financial Indebtedness or any Project Activity; or

(e)

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

(f)

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

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

(a)

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

(b)

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

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

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

(a)

(if the currency is Australian dollars) the first day of that period; or

(b)

(if the currency is United States dollars) 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 Agent in accordance with market practice in the Relevant Interbank Market (and if quotations 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).

‘Rating Expert’ means an expert in relation to the long term credit rating of companies, satisfactory to the Agent and the Borrower (all acting reasonably) and independent of the Lenders and the Borrower.

‘Reference Banks’ means, in relation to BBR, each of the Lenders and in relation to LIBOR, [ ] or, in either case, such other banks as may be appointed by the Agent.

‘Relevant Interbank Market’ means in relation to Australian dollars, the Australian bank ▇▇▇▇ market and, in relation to United States dollars, the London interbank market.

‘Repeating Representations’ means each of the representations set out in Clauses 19.1 to 19.4 inclusive, 19.6, 19.9, 19.12, 19.14 and 19.15.

‘Review Event’ occurs if the Guarantor:

(a)

becomes a Subsidiary of any other entity; or

(b)

ceases to have Control of the Borrower,

and, either immediately prior to, or immediately after, such event, the entity referred to in paragraph (a) or the entity which acquires Control of the Borrower (whichever is relevant) has a S & P Credit Rating lower than BBB or, if unrated, is determined by a Rating Expert to have an unsecured long term credit rating lower than BBB.

‘Rollover Loan’ means one or more Loans in respect of the Facility:

(a)

made or to be made on the same day that a maturing Loan under the Facility is due to be repaid;

(b)

the aggregate amount of which is equal to or less than the maturing Loan under that Facility;

(c)

in the same currency as the maturing Loan under the Facility; and

(d)

made or to be made to the same Borrower for the purpose of refinancing a maturing Loan under the Facility.

To avoid doubt, a Loan which is used to repay a Swingline Loan in the circumstances contemplated by Clause 5.1 is a Rollover Loan.

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‘S & P Credit Rating’ means the senior unsecured long-term credit rating published by Standard & Poors, a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies Inc.

‘Screen Rate’ means:

(a)

in relation to BBR, the average bid rate displayed on the Reuters screen page BBSY for Australian dollar bank accepted bills and the relevant period; or

(b)

in relation to LIBOR, the British Bankers’ Association Interest Settlement Rate for United States dollar deposits and the relevant period displayed on the appropriate page of the Reuters Page ‘LIBOR01 US$ Column’.

If the agreed page is replaced or the service ceases to be available, the Agent may specify another page or service displaying the appropriate rate after consultation with the Borrower 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. It includes any sale and leaseback arrangement.

‘Specified Time’ means a time determined in accordance with Schedule 5 (Timetables).

‘Subsidiary’ has the meaning given in the Corporations Act, but as if body corporate includes any entity. It also includes an entity whose profit or loss is required by current accounting practice to be included in the consolidated annual profit and loss statements of that entity or would be required if that entity were a corporation.

‘Swingline Loan’ means a loan in A$ made or to be made under the Facility where the Utilisation Request is given in accordance with clause 5.1(b) and paragraph (a) of Schedule 5, or the principal amount outstanding for the time being of such a loan.

‘Tax’ means any tax, levy, impost, 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).

‘Tax Act’ means the Income Tax Assessment ▇▇▇ ▇▇▇▇.

‘Total Capitalisation’ means, in relation to the Group and with respect to any reporting period ending on a Calculation Date covered by the Financial Statements, the aggregate of Net Tangible Assets and Total Debt.

‘Total Commitments’ means the aggregate of the Commitments, being US$250,000,000 at the date of this Agreement.

‘Total Debt’ means, in relation to the Group and with respect to any reporting period ending on a Calculation Date covered by the Financial Statements, the aggregate of the amount shown by those Financial Statements as the borrowings of the Group and the amount of all contingent liabilities of the Group comprising a surety obligation (including, but not limited to, guarantees and indemnities) undertaken in respect of borrowings of an entity which is not a member of the Group.

‘Total Interest’ means, in relation to the Group and with respect to any reporting period ending on a Calculation Date covered by the Financial Statements, the total interest expense of the Group which has accrued during that period as shown in the Financial Statements (excluding any amounts which pertain to amortisation of borrowing costs, cross currency swaps and interest rate swaps).

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‘Total Tangible Assets’ means, in relation to the Group and with respect to any reporting period ending on a Calculation Date covered by the Financial Statements, all of the assets of the Group (except Intangible Assets), as shown in the Financial Statements.

‘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 Agent and the Borrower.

‘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 which is the fifth Business Day after the date of delivery of the relevant Transfer Certificate to the Agent, or such earlier Business Day endorsed by the Agent on such Transfer Certificate.

‘US$’ or ‘United States dollars’ means the lawful currency of the United States of America.

‘Unpaid Sum’ means any sum due and payable but unpaid by an Obligor under the Finance Documents.

‘Utilisation’ means a utilisation of a Facility.

‘Utilisation Date’ means the date of a Utilisation, being the date on which the relevant Loan is to be made.

‘Utilisation Request’ means a notice substantially in the form set out in Schedule 3 (Requests).

‘WMC Resources Ltd’ means WMC Resources Ltd (ABN 76 004 184 598) of ▇▇▇▇▇ ▇▇, ▇▇▇ Centre, ▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇.

1.2

Construction

(a)

Any reference in this Agreement to:

(i)

‘assets’ includes present and future properties, revenues and rights of every description;

(ii)

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;

(iii)

‘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;

(iv)

a ‘person’ includes any person, firm, Borrower, 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;

(v)

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;

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(vi)

a provision of law is a reference to that provision as amended or re-enacted; and

(vii)

unless a contrary indication appears, a time of day is a reference to Melbourne time.

(b)

Section, Clause and Schedule headings are for ease of reference only.

(c)

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.

(d)

The words ‘including’, ‘for example’ or ‘such as’ when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind.

(e)

A Default (other than an Event of Default) is ‘continuing’ or ‘subsists’ if it has not been remedied, or waived in writing, and an Event of Default is ‘continuing’ or ‘subsists’ if it has not been remedied, or waived in writing.

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Section 2 - The Facility

2.	The Facility

2.1

The Facility

(a)

Subject to the terms of this Agreement, the Lenders make available to the Borrower a United States dollar/Australian dollar cash advance facility in an aggregate amount equal to the Total Commitments.

(b)

The Borrower shall ensure that the aggregate Base Currency Amount of Loans outstanding under the Facility does not at any time exceed the aggregate of the Commitments for the Facility.

2.2

Lenders’ rights and obligations

(a)

The obligations of each Lender under the Finance Documents are several. Failure by a Lender 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 Lender under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Lender 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.

3.	Purpose

3.1

Purpose

The Borrower may only utilise the Facility for the following purposes:

(a)

to refinance existing Financial Indebtedness and repay commercial paper, notes or other like debt instruments, other than Derivative Transactions; and

(b)

otherwise, for the Group’s on-going corporate purposes.

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

The Borrower may not deliver a Utilisation Request unless the Agent has received all of the documents and other evidence listed in Schedule 2 (Conditions precedent) in form and substance satisfactory to the Agent (acting on the instructions of the Majority Lenders). The Agent shall notify the Borrower and the Lenders promptly upon being so satisfied.

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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:

(a)

in the case of a Rollover Loan, no Event of Default is continuing or would result from the proposed Loan and, in the case of any other Loan, no Default is continuing or would result from the proposed Loan; and

(b)

the Repeating Representations to be made by each Obligor are true in all material respects.

4.3

Maximum number of Loans

The Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisations more than 5 Loans would be outstanding.

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Section 3 - Utilisation

5.	Utilisation

5.1

Delivery of a Utilisation Request

(a)

The Borrower may utilise a Facility by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time.

(b)

Despite paragraph (a), the Borrower may utilise the Facility to draw A$ Loans for the purpose of repaying commercial paper, notes or other like debt instruments by delivery to each Lender (with a copy to the Agent) of a duly completed Utilisation Request not later than the Specified Time.

(c)

If the Borrower wants to utilise the Facility while a Swingline Loan is outstanding, such that the proposed Utilisation Date of the Loan to be requested is on or before the last day of the Swingline Loan’s Interest Period, then:

(i)

the requested Loan must be in Australian dollars in an amount at least equal to the amount of the outstanding Swingline Loan; and

(ii)

clause 5.3(b)(ii) applies to the excess if the requested Loan is to be in an amount greater than the amount of the outstanding Swingline Loan; and

(iii)

the proceeds of the requested Loan must be applied first in repayment of the Swingline Loan on the last day of its Interest Period.

5.2

Completion of a Utilisation Request

Each Utilisation Request in respect of a Loan under the Facility is irrevocable and will not be regarded as having been duly completed unless:

(a)

it identifies if it is in respect of a Swingline Loan;

(b)

the proposed Utilisation Date is a Business Day within the Availability Period applicable to that Facility;

(c)

the currency and amount of the Utilisation comply with Clause 5.1(c) (Delivery of a Utilisation Request) (if applicable) and Clause 5.3 (Currency and Amount); and

(d)

the proposed Interest Period complies with Clause 9 (Interest Periods).

5.3

Currency and amount

(a)

The currency specified in a Utilisation Request must be United States dollars or Australian dollars.

(b)

The amount of the proposed Loan must be:

(i)

if the currency selected is United States dollars, a minimum of US$5,000,000 and an integral multiple of US$1,000,000 or, if less, the Available Facility; or

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(ii)

if the currency selected is Australian dollars, a minimum of A$10,000,000 and an integral multiple of A$2,000,000 or, if less, the Available Facility notionally converted into Australian dollars at the Agent’s Spot Rate of Exchange.

5.4

Lenders’ participation

(a)

If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Loan available 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 Agent shall notify each Lender of the amount, currency and the Base Currency Amount of each Loan at the Specified Time.

6.	Reliquefication Bills

(a)

The Borrower irrevocably and for value authorises each Lender (at the option of the Lender) from time to time:

(i)

to prepare reliquefication bills of exchange in relation to a Loan to it denominated in Australian dollars; and

(ii)

to sign them as drawer or endorser in the name of and on behalf of the Borrower.

(b)

The total face amount of reliquefication bills prepared by any Lender and outstanding in relation to any A$ denominated Loan must not at any time exceed:

(i)

that Lender’s share of the principal amount of that Loan; plus

(ii)

the total interest on that share over the relevant Interest Period.

(c)

Reliquefication bills must mature on or before the last day of the relevant Interest Period.

(d)

Each Lender may realise or deal with any reliquefication ▇▇▇▇ prepared by it as it thinks fit.

(e)

(i) Each Lender shall indemnify the Borrower on demand against all liabilities, costs and expenses incurred by the Borrower by reason of it being a party to a reliquefication ▇▇▇▇ prepared by that Lender.

(ii)

This paragraph (e) does not affect any obligation of the Borrower under the Finance Documents. In particular the obligations of the Borrower to make payments under the Finance Documents are not in any way affected by any liability of a Lender, contingent or otherwise, under this indemnity.

(f)

If a reliquefication ▇▇▇▇ is presented to the Borrower and the Borrower discharges it by payment, the amount of that payment will be deemed to have been applied against the moneys payable to that Lender.

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Section 4 - Prepayment and Cancellation

7.	Cancellation and voluntary prepayment

7.1

Voluntary cancellation

The Borrower may, if it gives the Agent not less than 3 Business Days’ (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of US$1,000,000 and an integral multiple of US$1,000,000) of an Available Facility. Any cancellation under this Clause 7.1 shall reduce the Commitments of the Lenders rateably with respect to the Facility.

7.2

Voluntary prepayment of Loans

The Borrower may, if it gives the Agent not less than 3 Business Days’ (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of the Loan before the last day of the Loan’s Interest Period (but, if in part, being an amount that reduces the amount of the Loan by a minimum amount of US$5,000,000 or A$10,000,000 (as applicable) and an integral multiple of US$1,000,000 or A$2,000,000 (as applicable)).

If the Borrower prepays the whole or any part of the Loan before the last day of the Loan’s Interest Period, the Borrower must pay any Break Costs associated with that prepayment in accordance with Clause 11.

7.3

Right of repayment and cancellation in relation to a single Lender

(a)

If:

(i)

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

(ii)

any Lender claims indemnification from the Borrower under Clause 13.3 (Tax indemnity) or Clause 14.1 (Increased costs),

the Borrower may, whilst the circumstance giving rise to the requirement or indemnification continues, give the Agent notice of cancellation of the Commitment of that Lender and its intention to procure the repayment of that Lender’s participation in the Loans.

(b)

On receipt of a notice referred to in paragraph (a) above, the Commitments of that Lender shall immediately be reduced to zero.

(c)

On the last day of each Interest Period which ends after the Borrower has given notice under paragraph (a) above (or, if earlier, the date specified by the Borrower in that notice), the Borrower shall repay that Lender’s participation in that Loan.

7.4

Prepayment for Currency Fluctuations

Where the aggregate amount of any Loans (calculated in the Base Currency) is greater than 115% of the Total Commitments within 5 Business Days of an Interest Period then:

(a)

the Agent may require the Borrower to prepay the whole or any part of the Loan before the last day of the Loan’s Interest Period (but, if in part, being an amount that reduces the amount of the Loan by a minimum amount of US$5,000,000 or A$10,000,000 (as applicable) and an integral multiple of US$1,000,000 or A$2,000,000 (as applicable)); and

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(b)

the Borrower must do so within the nominated time frame.

7.5

Restrictions

(a)

Any notice of cancellation or prepayment given by any Party under this Clause 7 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall 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 a Finance Document shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.

(c)

Unless a contrary indication appears in this Agreement, any part of the Facility which is prepaid may be reborrowed in accordance with the terms of this Agreement.

(d)

The Borrower shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.

(e)

No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

(f)

If the Agent receives a notice under this Clause 7 it shall promptly forward a copy of that notice to either the Borrower or the affected Lender, as appropriate.

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SECTION 5 - COSTS OF UTILISATION

8.	Interest

8.1

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)

Margin; and

(b)

Base Rate.

8.2

Default interest

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 the rate which is 2% higher than the applicable Margin and shall be immediately payable by the Obligor on receipt of a written demand by the Agent. 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.

8.3

Notification of rates of interest

The Agent shall promptly notify the Lenders and the Borrower of the determination of a rate of interest under this Agreement.

9.	Interest periods

9.1

Selection of Interest Periods

(a)

The Borrower may select an Interest Period for a Loan in the Utilisation Request for that Loan.

(b)

Subject to this Clause 9, for any Loan other than a Swingline Loan, the Borrower may select an Interest Period of 1, 2, 3, 4, 5 or 6 Months or any other period agreed between the Borrower and the Agent (acting on the instructions of the Majority Lenders). For a Swingline Loan, the Borrower may select an Interest Period of up to 7 days.

(c)

An Interest Period for a Loan shall not extend beyond the Maturity Date applicable to its Facility.

(d)

A Loan has one Interest Period only.

(e)

Except in the case of a Swingline Loan, if the Borrower fails to select an Interest Period, the period is 1 month. If the Borrower fails to select an Interest Period for a Swingline Loan, the Utilisation Request is invalid.

9.2

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).

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10.

Changes to the calculation of interest

10.1

Absence of quotations

Subject to Clause 10.2 (Market disruption), if a Base Rate 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 Base Rate shall be determined on the basis of the quotations of the remaining Reference Banks.

10.2

Market disruption

(a)

If a Market Disruption Event occurs in relation to a Loan for any Interest Period for which the Base Rate was to have been LIBOR, 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 applicable Margin; and

(ii)

the rate notified to the 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.

(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 Agent to determine LIBOR for the relevant currency and period; or

(ii)

before close of business in London on the Quotation Day for the relevant Interest Period, the Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 50 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.

10.3

Alternative basis of interest or funding

(a)

If a Market Disruption Event occurs and the Agent or the Borrower so requires, the Agent and the Borrower 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 clause 10.3(a) above shall, with the prior consent of all the Lenders and the Borrower, be binding on all Parties.

11.

Break costs

(a)

The 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.

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(b)

Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.

12.

Fees

12.1

Commitment fees

(a)

The Borrower shall pay to the Agent (for the account of each Lender) a Commitment fee in United States Dollars in respect of the Available Commitments for the Facility, computed at the rate of 40% of the applicable Margin on each Lender’s Available Commitment from execution of this Agreement until the Maturity Date for the Facility.

(b)

The accrued commitment fee is payable on the first day of each successive period of three Months which ends during the relevant period in the above Clause 12.1(a), on any undrawn portion of the Facility and on the cancelled amount of the relevant Lender’s Commitment at the time the cancellation is effective.

12.2

Establishment Fee

The Borrower shall pay to the Agent (for the account of each Lender) an establishment fee in US$, being 0.075% of each Lender’s Commitment upon execution of this Agreement.

12.3

Agent’s fee

The Borrower shall pay to the Agent (for its own account) a fee for the services referred to in Clause 26.1(c) in the amount and at the times agreed in a Fee Letter.

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Section 6 - additional payment obligations

13.

Tax Gross Up and Indemnities

13.1

Definitions

(a)

In this Clause 13:

‘Protected Party’ means a Finance Party which is or will be, for or on account of Tax, subject to any liability or required to make any payment 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).

(b)

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 under the Finance Documents without any Tax Deduction unless such Tax Deduction is required by law.

(b)

The Borrower or a Lender 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 Agent accordingly. If the Agent receives such notification from a Lender it shall notify the Borrower and that Obligor.

(c)

If a Tax Deduction is required by law to be made by an Obligor except in relation to a Tax described in Clause 13.3(b), 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)

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.

(e)

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 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.

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13.3

Tax indemnity

(a)

The Borrower shall (within three Business Days of demand by the 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.

(b)

Clause 13.3(a) above shall not apply with respect to any Tax assessed on a Finance Party 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:

(i)

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

(ii)

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.

(c)

A Protected Party making or intending to make a claim pursuant to Clause 13.3(a) above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Borrower.

(d)

A Protected Party shall, on receiving a payment from an Obligor under this Clause 13.3, notify the 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,

subject to Clause 27 (Conduct of business by the Finance Parties), 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 duties and Taxes

The Borrower shall:

(a)

pay; and

(b)

within 3 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 and other similar Taxes payable in respect of any Finance Document.

13.6

Indirect Tax

(a)

All payments to be made by an Obligor under or in connection with any Finance Document have been calculated without regard to Indirect Tax. If all or part of any such payment is the consideration for a taxable supply or chargeable with Indirect Tax then, when the Obligor makes the payment:

(i)

it must pay to the Finance Party an additional amount equal to that payment (or part) multiplied by the appropriate rate of Indirect Tax; and

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(ii)

the Finance Party will promptly provide to the Obligor a tax invoice complying with the relevant law relating to that Tax.

(b)

Where a Finance Document requires an Obligor to reimburse a Finance Party for any costs or expenses, that Obligor shall also at the same time pay and indemnify that Finance Party against all Indirect Tax incurred by that Finance Party in respect of the costs or expenses save to the extent that that Finance Party is entitled to repayment or credit in respect of the Indirect Tax.

14.

Increased costs

14.1

Increased costs

(a)

Subject to Clause 14.3 (Exceptions) the Borrower shall, within three Business Days of a demand by the 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 or application of) any law or regulation or (ii) compliance with any law or regulation made after the date of this Agreement. This includes, without limitation, any law or regulation with regard to capital adequacy, prudential limits, liquidity, reserve assets or Tax.

(b)

In this Agreement ‘Increased Costs’ means:

(i)

a reduction in the rate of return from any Facility or on a Finance Party’s (or its Affiliate’s) overall capital (including, without limitation, as a result of any reduction in the rate of return on capital as more capital is required to be allocated);

(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 Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Borrower.

(b)

Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.

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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); or

(iii)

attributable to the wilful breach by the relevant Finance Party or its Affiliates of 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.

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 Borrower shall (or shall procure that an Obligor will), within 3 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)

any enquiry, investigation, subpoena (or similar order) or litigation with respect to any Obligor or with respect to the transactions contemplated or financed under this Agreement;

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(c)

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 Lenders);

(d)

funding, or making arrangements to fund, its participation in a Loan requested by the 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 Lender alone);

(e)

a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower; or

(f)

or arising from the application to that Finance Party of any Environmental Law in relation to the business of the Group (including all costs, expenses and liabilities reasonably incurred by any of them as a result of any of them receiving any notice from any Governmental Agency under any Environmental Law).

15.3

Indemnity to the Agent

The Borrower shall promptly indemnify the Agent against any cost, loss or liability incurred by the 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.

16.

Mitigation by the lenders

16.1

Mitigation

(a)

Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under, or cancelled pursuant to Clause 13 (Tax gross-up and indemnities) of this Agreement (other than Clause 13.6 (Indirect Tax)) 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 Borrower 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)

Regardless of any steps taken (or not taken) by any Finance Party, 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.

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17.

Costs and expenses

17.1

Transaction expenses

The Borrower shall, subject to any written agreement with such parties, promptly on demand pay the Agent and the Arranger the amount of all costs and expenses (including legal fees) reasonably incurred by any of them in connection with the negotiation, preparation, printing and execution 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 an Obligor requests an amendment, waiver or consent the Borrower shall, within 3 Business Days of demand, reimburse the Agent for the amount of all costs and expenses (including legal fees) reasonably incurred by the Agent in responding to, evaluating, negotiating or complying with that request or requirement.

17.3

Enforcement costs

The Borrower shall, within 3 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 or in connection with anything referred to in Clause 15.2(c) (Other indemnities).

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Section 7 - Guarantee

18.

Guarantee and indemnity

18.1

Guarantee and indemnity

The Guarantor irrevocably and unconditionally:

(a)

guarantees to each Finance Party punctual performance by the Borrower of all the Borrower’s obligations under the Finance Documents;

(b)

undertakes with each Finance Party that whenever the Borrower does not pay any amount when due under or in connection with any Finance Document, the 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 anything which would have been an obligation if not 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 to 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 for any reason (including, without limitation, as a result of insolvency, breach of fiduciary or statutory duties 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 the 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;

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(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, execute, 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;

(g)

any insolvency or similar proceedings; or

(h)

this Agreement or any other Finance Document or document or security not being executed by or binding against any party.

18.5

Immediate recourse

The 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 the Guarantor shall not be entitled to the benefit of the same; and

(b)

hold in an interest-bearing suspense account any moneys received from the Guarantor or on account of the 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 Agent otherwise directs, the Guarantor will not 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 the Borrower;

(b)

to claim any contribution from any other guarantor of or provider of security for any Obligor’s obligations under the Finance Documents; and/or

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(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.

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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 and on such other dates as are expressly set out in Clause 19.16.

19.1

Status

(a)

It is a corporation, duly incorporated and validly existing under the laws 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 conducted.

19.2

Binding obligations

The obligations expressed to be assumed by it in each Finance Document are, subject to any general principles of law limiting its obligations which are specifically referred to in any legal opinion accepted pursuant to Clause 4 (Conditions of Utilisation), legal, valid, binding and enforceable obligations.

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 conflict with:

(a)

any law or regulation applicable to it;

(b)

the constitutional documents of any member of the Group; or

(c)

any agreement or instrument binding upon it or any member of the Group or any of its or any member of the Group’s 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:

(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;

(b)

to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation; and

(c)

for it and its Subsidiaries to carry on their business, and which are material, have been obtained or effected and are in full force and effect.

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19.6

Governing law and enforcement

(a)

The choice of law referred to in Clause 37 (Governing law) as the governing law of the Finance Documents will be recognised and enforced in its jurisdiction of incorporation.

(b)

Any judgment obtained against it in any jurisdiction referred to in Clause 38 (Enforcement) in relation to a Finance Document will be recognised and enforced in its jurisdiction of incorporation.

19.7

Deduction of Tax

It is not required under the law applicable where it is incorporated or resident or at its address specified in the Agreement to make any deduction for or on account of Tax from any payment it may make under any Finance Document.

19.8

No filing or stamp taxes

Under the law of its jurisdiction of incorporation it is not necessary that the Finance Documents be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration or similar tax be paid on or in relation to the Finance Documents or the transactions contemplated by the Finance Documents.

19.9

No default

(a)

Except as disclosed to the Agent in writing, no Default is continuing of which it is aware.

(b)

Except as disclosed to the Agent in writing, no other event or circumstance is outstanding which constitutes a default under any other agreement or instrument to which it or any of its Subsidiaries is a party or to which its (or any of its Subsidiaries’) assets are subject which is reasonably likely to have a Material Adverse Effect.

(c)

To avoid doubt, mere disclosure of an event contemplated by this clause does not excuse or waive any Default that might arise or have arisen.

19.10

No misleading information

Any factual information provided by an Obligor to any Finance Party for the purposes of any Finance Document or the transactions contemplated by them (including information provided under Clause 20) was true and accurate and not misleading by omission in all material respects as at the date it was provided or as at the date (if any) at which it is stated.

19.11

Financial statements

(a)

The Original Financial Statements were prepared in accordance with GAAP consistently applied unless expressly disclosed to the contrary.

(b)

Since 31 December 2003, there has been no change in the financial condition of the Group which has, or would have, a material adverse effect on the ability of the Obligors to perform their respective obligations under this agreement.

(c)

The Original Financial Statements will give in all material respects a true and fair view and will represent in all material respects the Group’s financial condition and operations during the relevant reporting period covered by those Original Financial Statements unless expressly disclosed to the contrary.

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19.12

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.

19.13

No proceedings pending or threatened

No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency which would reasonably be expected to have a Material Adverse Effect, have been started against it or any of its Subsidiaries.

19.14

Trustee

It does not enter any Finance Document as an express trustee.

19.15

Authorised Signatures

Any person specified as its authorised signatory under Schedule 2 (Conditions precedent) or Clause 20.4(d) (Information: miscellaneous) is authorised to sign Utilisation Requests and other notices on its behalf (unless otherwise notified by the borrower to the Agent).

19.16

Repetition

The Repeating Representations contained in this Clause 19 are deemed to be made by each Obligor by reference to the facts and circumstances then existing on the date of each Utilisation Request and the first day of any Interest Period.

The representation contained in Clause 19.10 is made on the date of this Agreement and repeated on each date on which any information to which it refers is provided by an Obligor with respect to that information.

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

Financial Statements

The Guarantor shall supply to the Agent in sufficient copies for all the Lenders:

(a)

as soon as the same become available, but in any event within 90 days after the end of each of its financial years, the Group’s audited Financial Statements for that financial year; and

(b)

as soon as the same become available, but in any event within 75 days after the end of each half of each of its financial years, the Group’s Financial Statements for that financial half year.

20.2

Compliance Certificate

(a)

The Guarantor shall supply to the Agent with each set of Financial Statements delivered pursuant to Clause 20.1 (Financial Statements), a Compliance

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Certificate setting out (in reasonable detail) computations as to compliance with Clause 21 (Financial covenants) and, if applicable, Clause 22.3(c)(xv) (Negative Pledge), as at the date as at which those Financial Statements were drawn up.

(b)

Each Compliance Certificate shall be signed by a director or chief financial officer of the Group and, if required to be delivered with the Financial Statements delivered pursuant to paragraph (a) of Clause 20.1 (Financial Statements), by the Group’s auditors.

20.3

Requirements as to Financial Statements

(a)

Each set of Financial Statements delivered pursuant to Clause 20.1 (Financial Statements) shall be certified by a director or chief financial officer of the Guarantor as fairly representing the Group’s financial condition as at the date as at which those Financial Statements were drawn up.

(b)

The Guarantor shall procure that each set of Financial Statements delivered pursuant to Clause 20.1 (Financial Statements) is prepared using GAAP.

20.4

Information: miscellaneous

The Obligors shall supply to the Agent (in sufficient copies for all the Lenders, if the Agent so requests):

(a)

all documents dispatched by the Guarantor to its shareholders (or any class of them) or any Obligors’ creditors generally (or any class of them) 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 would reasonably be expected to have a Material Adverse Effect;

(c)

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

(d)

promptly, notice of any change in authorised signatories of the Borrower signed by a director or secretary of the Borrower accompanied by specimen signatures of any new signatories; and

(e)

promptly, notice of any change to the Class Order Guarantors including the reason for any entity ceasing to be a Class Order Guarantor.

20.5

Notification of default

(a)

Each Obligor shall notify the 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 by another Obligor).

(b)

Promptly upon a request by the Agent, the Borrower shall supply to the Agent a certificate signed by two of its directors or senior officers on its behalf certifying that no Default is subsisting (or if a Default is subsisting, specifying the Default and the steps, if any, being taken to remedy it). The Agent may only make that request if it reasonably suspects that a Default subsists.

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21.

Financial covenants

Each Obligor undertakes to the Finance Parties that it will ensure that:

(a)

with respect to each Calculation Date beginning with (and including) 31 December 2004:

(i)

Net Tangible Assets exceeds A$3 billion; and

(ii)

the ratio of Total Debt to Total Capitalisation is less than 50%; and

(b)

the ratio of EBITDA to Total Interest exceeds 4.0:1 with respect to each Calculation Date.

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 promptly:

(a)

obtain, comply with and do all that is necessary to maintain in full force and effect; and

(b)

supply certified copies to the Agent of,

any Authorisation required to enable it to perform its obligations under the Finance Documents and to ensure the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of any Finance Document and any material Authorisation required for the Group to carry on its business.

22.2

Compliance with laws

Each Obligor shall comply in all respects with all laws to which it may be subject, if failure so to comply would materially impair its ability to perform its obligations under the Finance Documents or to conduct its business as it is being conducted on the date of this Agreement.

22.3

Negative pledge

(a)

No Obligor shall (and the Guarantor 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 Guarantor shall ensure that no other member of the Group will):

(i)

sell, transfer or otherwise dispose of any of its receivables on recourse terms;

(ii)

enter any title retention arrangement with respect to deferred payment terms of more than 90 days;

(iii)

enter into 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

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(iv)

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)

Clauses 22.3(a) and (b) above do not apply to:

(i)

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

(ii)

any Security over or affecting any asset acquired by a member of the Group after the date of this Agreement if:

the Security was not created in contemplation of the acquisition of that asset by a member of the Group; and

the principal amount secured has not been increased in contemplation of, or since the acquisition of that asset by a member of the Group.

(iii)

any Security over or affecting any asset of any entity 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 entity becomes a member of the Group, if:

the Security was not created in contemplation of the acquisition of that entity; and

the principal amount secured has not increased in contemplation of or since the acquisition of that entity.

(iv)

Securities arising by statute or imposed by operation of law which do not secure Financial Indebtedness;

(v)

Securities to secure the performance of tenders, bids, leases, statutory obligations, surety and appeal bonds, Governmental Agency contracts, performance and return-of-money bonds and other similar obligations incurred in the ordinary course of business (except as security for Financial Indebtedness);

(vi)

any Securities securing amounts in connection with workers’ compensation, unemployment insurance and other types of social security;

(vii)

Securities on or over all or any part of the interest of any member of the Group in any Joint Venture to secure that member’s obligations and liabilities to its co-venturers and/or the manager or operator of the Joint Venture or their agent, including the revenues and assets derived by the member from, or employed by the member in, the Joint Venture, in favour of its co-venturers;

(viii)

Securities to secure Financial Indebtedness in which a member of the Group has paid money or deposited securities with a trustee or depository pursuant to a Defeasance Arrangement;

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(ix)

Securities to secure the payment or repayment of Limited Recourse Debt or Non-Recourse Debt with respect to a project or development, provided that such Securities do not extend to any assets other than:

a Group member’s Project Property in respect of the project or development;

all or any part of the Economic Interest of a member of the Group in a Project Vehicle and the rights and proceeds derived from that Economic Interest if:

the assets of the Project Vehicle form part of or are directly connected with the project or development;

those assets comprise all or substantially all of the assets of the Project Vehicle; and

where that Economic Interest of the member of the Group which has created or proposed to create the Securities is an indirect Economic Interest held through interposed persons, the Economic Interest of each of those interposed persons in the Project Vehicle comprises all or substantially all of the assets of that person;

any other asset of the Group member referred to in (A) or (B) if that other asset has a market value less than US$250,000; or

any combination of the assets, Economic Interest, rights and proceeds referred to in (B)(1), (2) or (3) above;

(x)

Securities for Taxes which are being contested in good faith and if a reserve or other appropriate provision, if any, as required by applicable generally accepted accounting principles has been made for the Taxes by the Group;

(xi)

Securities in favour of an Obligor or a Class Order Guarantor;

(xii)

any attachment or judgment Securities, unless the judgment it secures is not discharged or execution stayed pending appeal, within 60 days after when it was entered, or is not discharged within 60 days after the expiration of any such stay;

(xiii)

Securities in respect of receivables, inventory and related assets (including Securities securing payment of the receivables, contracts to buy inventory and the proceeds of such receivables, contracts and assets) in favour of any person which are created:

in connection with any facility or program (including a securitisation and related Derivative Transactions) under which funds have been provided to a member of the Group on a non-recourse basis in exchange for all or any of the receivables or inventory; and

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as security for the obligations of a member of the Group under the facility or program, payment of the receivables and/or payment of the inventory;

(xiv)

Securities over documents of title, bills of lading and insurance policies in respect of goods or assets imported or exported in the ordinary course of business of a member of the Group, over the goods or assets and any proceeds payable under, or from the disposal of, any of the foregoing assets which secures any Financial Indebtedness incurred by a member of the Group to acquire the goods or assets imported by it or to raise funds in respect of the goods or assets exported by it if the Financial Indebtedness is repaid within six months after it has been incurred;

(xv)

any other Securities securing indebtedness the aggregate principal amount of which does not exceed 10% of Net Tangible Assets as shown in the most recent Financial Statements of the Group.

(d)

If, at any time, any Security described in clause 22.3(c)(ix) secures any debt which is not Limited Recourse Debt or Non-Recourse Debt, each Obligor must promptly (and, in any event, within 5 Business Days) procure that the Security is amended, released or discharged to the extent necessary to ensure that it secures only Limited Recourse Debt or Non-Recourse Debt (or both), and provide the Agent with evidence of such amendment, release or discharge.

22.4

Disposals

(a)

No Obligor shall (and the Guarantor shall ensure that no other member of the Group will), enter into a single transaction or a series of transactions (whether related or not but excluding the payment of money) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of the whole or major part of their respective undertakings if (in the case of a member of the Group other than the Guarantor) that whole or major part comprises the whole or major part of the aggregate value (on a consolidated basis) of the undertaking of the Group as a whole.

(b)

Paragraph 22.4(a) above does not apply to any sale, lease, transfer or other disposal:

(i)

made in the ordinary course of business; or

(ii)

of the Group’s fertilizer business(es) or assets (including the shares held in a company that conducts such businesses);

(iii)

by a member of the Group to another member of the Group; or

(iv)

under a Security which is permitted under Clause 22.3;

(v)

of receivables on arms length non-recourse terms;

(vi)

of assets which are obsolete, worn out or redundant;

(vii)

where the higher of the market value or consideration receivable for the sale, lease, transfer or other disposal (when aggregated with the higher of the market value or consideration receivable for all other sales, leases, transfers or other disposals during such financial year, other than any permitted under paragraphs (i) to (vii) above) does not exceed US$40,000,000 (or its equivalent in another currency or currencies) in any financial year.

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22.5

Merger

No Obligor shall (and the Guarantor shall ensure that no other member of the Group will) enter into any amalgamation, demerger, merger or corporate reconstruction.

22.6

Change of business

The Guarantor shall not make, and shall ensure that no other member of the Group makes, any alteration in the nature of the Group’s businesses if such alteration or all such alterations in aggregate would constitute a substantial alteration in the general character of the businesses of the Group treated as one business, such general character being taken for this purpose to be that of a group engaged primarily in the exploration, development, treatment, processing, marketing and trading of mineral resources.

22.7

Environmental

Each Obligor shall maintain procedures which are adequate to monitor:

(a)

the Group’s compliance with all Environmental Laws; and

(b)

circumstances relating to Environmental Laws which have given rise or may give rise to a claim against, or to a requirement of expenditure by, the Group in an amount of US$5,000,000 (or equivalent) or more (whether initiated by a private claimant or a Governmental Agency) or to the cessation or material alteration of the Group’s business activities.

Each Obligor must notify the Agent of any such circumstances promptly upon becoming aware of them.

22.8

Insurance

Each Obligor must ensure that insurance is taken out and maintained with reputable insurers with respect to the assets and undertakings of the Group (including any natural resource or other projects or developments) of an insurable nature in the manner and to the extent that is prudent and appropriate for business

22.9

Distributions to shareholders

Each Obligor shall not declare or pay any dividend or pay or distribute any money or other asset to or for the benefit of any of its shareholders in their capacity as such (other than another Obligor) while a Default subsists.

22.10

Maximum non- Financial Indebtedness

The Guarantor shall ensure that the aggregate principal amount of Financial Indebtedness (excluding Limited Recourse Debt and Non-Recourse Debt) incurred by members of the Group which are not Obligors or Class Order Guarantors will not exceed at any time US$25,000,000 (or its equivalent in other currencies).

22.11

Conduct of Business

Each Obligor shall ensure that the Group and each member of it will conduct is businesses in accordance with prudent and appropriate business practices, having regard to the nature of the business of the Obligor and the practices of other similar businesses in the jurisdiction(s) in

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which it operates. This includes the exercise of a degree of skill, diligence and foresight consistent with the safe, secure and reliable operation of its business and prudent practices that reasonably would be accepted by a significant proportion of similar businesses in Australia.

22.12

Constitution

Each Obligor must do everything necessary to maintain its corporate existence. No Obligor may transfer its jurisdiction of incorporation without the prior written consent of the Agent (such consent not to be unreasonably withheld).

22.13

Derivative transactions

The Guarantor must ensure that:

(a)

the Group and each of its members has a hedging policy which is prudent and appropriate in all the circumstances; and

(b)

no member of the Group enters into a Derivative Transaction the predominant purpose of which is speculative.

22.14

Non-Arm’s Length Transactions with Related Parties

The Guarantor shall ensure that no Obligor enters into a transaction with any other member of the Group which is not an Obligor unless:

(a)

that transaction is on arm’s length commercial terms and the consideration provided under that transaction is market value consideration; or

(b)

that transaction, when aggregated with all other such transactions (other than those referred to in paragraph (a)), does not exceed US$25,000,000 (or equivalent) in value at any given point in time.

22.15

No Upstream Guarantees

If any person acquires Control of the Guarantor, each Obligor undertakes that it will not provide any guarantee of the Financial Indebtedness of the entity which acquired Control of the Guarantor.

22.16

Class Order Guarantors

(a)

The Guarantor shall ensure that no Class Order Guarantor is released from, or otherwise ceases to be bound by, the Class Order Guarantee unless that Class Order Guarantor:

(i)

is or will after the release no longer be a member of the Group or is to be wound up consequent upon a voluntary liquidation; and

(ii)

is released from or ceases to be bound by the Class Order Guarantee in accordance with that document,

or unless the Class Order Guarantor has entered into a guarantee and indemnity in favour of the Finance Parties substantially on the same terms as Clause 18.

(b)

The Guarantor shall ensure that the Class Order Guarantee is not amended in any material respect, discontinued, revoked or otherwise released except:

(i)

as permitted under paragraph (a); or

(ii)

to the extent necessary to comply with any law or regulation.

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23.

Events of default

Each of the events or circumstances set out in this Clause 23 is an Event of Default.

23.1

Non-payment

An Obligor does not pay within 3 Business Days of the due date any amount payable pursuant to a Finance Document at the place at and in the currency in which it is expressed to be payable.

23.2

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.)

(b)

No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 60 days of the Agent giving notice to the Borrower or an Obligor becoming aware of the failure to comply, whichever is the first to occur.

23.3

Misrepresentation

(a)

Any representation or statement made or deemed to be made by an Obligor 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.

(b)

No Event of Default under paragraph (a) above will occur if the misleading or incorrect representation or statement is capable of remedy (in the sense that were it to be subsequently repeated in respect of the facts and circumstances then subsisting it would be true and not misleading in all material respects) and is remedied within 60 days of the Agent giving notice to the Borrower or an Obligor becoming aware of the failure to comply, whichever is the earlier.

23.4

Cross default

(a)

Any Financial Indebtedness (except Non-Recourse Debt) of any Obligor is not paid when due nor within any originally applicable grace period.

(b)

Any Financial Indebtedness (except Non-Recourse Debt) of any Obligor is declared to be or otherwise becomes due and payable prior to its specified maturity because of the exercise by any creditor of any Obligor of any of its rights as a result of an event of default or review event (however described).

(c)

Any commitment for any Financial Indebtedness (except Non-Recourse Debt) of any Obligor is cancelled or suspended by a creditor of any Obligor as a result of an event of default or review event (however described).

(d)

No Event of Default will occur under this Clause 23.4 if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (a) to (c) above is less than US$25,000,000 (or its equivalent in any other currency or currencies).

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23.5

Insolvency

(a)

An Obligor is unable or admits inability to pay its debts as they fall due, suspends making payments on its debts or any class of them 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 (except Non-Recourse Debt).

(b)

A moratorium is declared in respect of any indebtedness (except Non-Recourse Debt) of any Obligor.

23.6

Insolvency proceedings

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

(a)

the suspension of payments generally, a moratorium of any indebtedness (other than Non-Recourse Debt), winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of an Obligor, other than a solvent liquidation or reorganisation of an Obligor which is approved by the Agent (acting on the instructions of the Majority Lenders who must be reasonable);

(b)

a composition, assignment or arrangement with the creditors or any class of creditors of an Obligor;

(c)

the appointment of a liquidator (other than in respect of a solvent liquidation of an Obligor which is approved by the Agent (acting on the instructions of the Majority Lenders)), receiver, administrator, administrative receiver, compulsory manager or other similar officer in respect of an Obligor or any of its assets (but other than under a Security which secures Non-Recourse Debt only); or

(d)

enforcement of any Security over any assets of an Obligor (other than a Security which secures Non-Recourse Debt only),

or any analogous procedure or step is taken in any jurisdiction (‘Relevant Action’). No Event of Default under this Clause 23.6 will occur if:

(e)

the Relevant Action was not initiated by the applicable Obligor; and

(f)

the Relevant Action is reversed, withdrawn, discharged, permanently stayed, discharged or otherwise remedied within 60 days of when it was commenced or taken; and

(g)

the relevant Obligor, throughout that period, uses its best endeavours to procure the reversal, withdrawal, discharge, stay or other remedy, and consults with the Agent, and keeps it fully informed to an extent satisfactory to the Agent.

To avoid doubt, an Event of Default will occur immediately if the Relevant Action is initiated by an Obligor.

23.7

Creditors’ process

Any expropriation, attachment, sequestration, distress or execution affects any asset or assets of an Obligor having an aggregate value of US$25,000,000 or more (or its equivalent in any other currency or currencies) and which is not discharged within 60 days, provided the relevant Obligor, throughout that period, uses its best endeavours to procure the discharge and consults with the Agent, and keeps it fully informed to an extent satisfactory to the Agent.

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23.8

Ownership of the Borrower

The Borrower is not or ceases to be a wholly owned Subsidiary of the Guarantor.

23.9

Unlawfulness or Unenforceability

It is or becomes unlawful for an Obligor to perform any of its obligations under all or any material part of a Finance Document or any of its obligations under all or any material part of a Finance Document are voidable or unenforceable for any reason.

23.10

Repudiation

An Obligor repudiates a Finance Document or evidences an intention to repudiate a Finance Document.

23.11

Material Adverse Effect

Any other event occurs which has or will have (or a series of events occur which, together, has or will have) a material adverse effect on the ability of the Obligors (taken as a whole) to perform their obligations under the Finance Documents.

23.12

Acceleration

On and at any time after the occurrence of an Event of Default which is continuing the Agent may, and shall if so directed by the Majority Lenders, by notice to the Borrower:

(a)

cancel the Total Commitments whereupon they shall be immediately cancelled;

(b)

declare that all or part of the Loans, together with accrued interest, and all other amounts owing under the Finance Documents be immediately due and payable; and/or

(i)

declare that all or part of the Loans and Unpaid Sums be payable on demand whereupon they shall immediately become payable on demand by the Agent.

23.13

Review event

(a)

This Clause 23.13 applies if a Review Event occurs.

(b)

The Obligors must notify the Agent promptly upon becoming aware that a Review Event has occurred.

(c)

Regardless of whether the Agent has received a notice under paragraph (b), if instructed by the Majority Lenders, the Agent will notify the Borrower that it has an option (the ‘Option’) to prepay without penalty (other than amounts payable under clause 11 (Break Costs)) all outstanding Loans, together with accrued interest, and all other amounts accrued under the Finance Documents, within 90 days after the date of that notice (‘Option Period’).

(d)

The Borrower may exercise the Option by giving written notice to that effect to the Agent no less than 5 Business Days before the date it intends to make the prepayment.

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(e)

If the Borrower does not exercise the Option by the date which is 5 Business Days before the expiry of the Option Period, the Agent may by notice to the Borrower cancel the Facility and declare all outstanding Loans, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Facility will be cancelled and all such outstanding amounts will become immediately due and payable.

(f)

The Borrower may not deliver a Utilisation Request during the Option Period with a Maturity Date after the last day of the Option Period.

(g)

Nothing in this Clause 23.13 shall be construed as limiting the rights of any Finance Party under clause 23.12 (Acceleration) in respect of any Event of Default which occurs at any time.

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Section 8 - 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; or

(b)

transfer by novation any of its other rights and obligations,

to another bank or financial institution or (where the Lender remains Lender of record) a securitisation vehicle or other vehicle for funding purposes (the ‘New Lender’).

24.2

Conditions of assignment or transfer

(a)

The consent of the Borrower is required for an assignment or transfer by a Lender, unless the assignment is to a securitisation or funding vehicle where the Lender remains lender of record.

(b)

The consent of the Borrower to an assignment or transfer must not be unreasonably withheld or delayed. The Borrower will be deemed to have given its consent five Business Days after the Lender has requested it unless consent is expressly refused by the Borrower within that time.

(c)

An assignment will only be effective on receipt by the Agent of written confirmation from the New Lender (in form and substance satisfactory to the 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 Party to this Agreement as a Lender.

(d)

A transfer will only be effective if the procedure set out in Clause 24.5 (Procedure for transfer) is complied with.

(e)

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) of this Agreement,

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.

24.3

Assignment or transfer fee

The New Lender shall, on the date upon which an assignment or transfer takes effect or the Transfer Certificate is delivered to the Agent under Clause 24.5 (Procedure for transfer), pay to the Agent (for its own account) a fee of A$[ ].

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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 or any other person;

(iii)

the performance and observance by any Obligor or any other person 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)

has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities and any other person 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 make its own independent appraisal of the creditworthiness of each Obligor and its related entities and any other person 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 Clause 24.2 (Conditions of assignment or transfer) a transfer is effected in accordance with paragraph (b) below on the later of the Transfer Date specified in the Transfer Certificate delivered by the Existing Lender to the Agent and the fifth Business Day after (or such earlier Business Day endorsed by the Agent on such Transfer Certificate falling on or after) the date of delivery of such Transfer Certificate to the Agent. Each Existing Lender must deliver four counterparts of the Transfer Certificate to the Agent. The 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

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delivered in accordance with the terms of this Agreement, execute that Transfer Certificate for itself and as agent for the Borrower, each Guarantor and each Lender other than the Existing Lender or the New Lender (each of whom expressly authorise the Agent so to do).

(b)

On the Transfer Date:

(i)

to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its other rights and obligations under the Finance Documents 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 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 Agent, 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 Party to this Agreement as a Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Agent 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’ and entitled to the benefits of any other Finance Document entered into by the Agent as agent for the Lenders.

24.6

Disclosure of information

Each Finance Party agrees not to disclose information provided by any Obligor that is not publicly available (including the existence of or contents of any Finance Documents) except:

(a)

to any person in connection with a permitted dealing with rights or obligations under a Finance Document provided that the recipient has executed a deed in favour of the Obligors agreeing to be bound by this clause 24.6;

(b)

if required by law or any Government or Agency or pursuant to, or in order to be in compliance with the requirements of, any administrative guideline or policy (even if it does not have the force of law) which the person disclosing the information customarily complies with;

(c)

in connection with an exercise or enforcement of rights relating to the Finance Documents, whether in connection with legal proceedings or otherwise;

(d)

in respect of information on or in connection with the Finance Documents only, to any other Finance Party or the holding company of the disclosing Finance Party, provided the holding company has executed a deed in favour of the Obligors agreeing to be bound by this clause 24.6;

(e)

to officers, employees, legal and other advisers and auditors of the Finance Party but only to the extent they need to receive such information for the purposes of carrying out their functions properly and then only if the Finance Party makes that person aware that the information is confidential to the Obligors; or

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(f)

with the consent of the Guarantor.

The relevant Finance Party must provide the Guarantor with a copy of the executed deed referred to in paragraph (a) or (d) above (as applicable).

25.

Changes to the Obligors

25.1

Assignments and transfer by Obligors

No Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents.

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Section 9 - The Finance Parties

26.

Role of the Agent

26.1

Appointment of the Agent

(a)

Each of the Lenders appoints the Agent to act as its agent under and in connection with the Finance Documents. The Agent will be agent for the Lenders except as described in paragraph (c).

(b)

Each of the Lenders authorises the Agent to exercise the rights, powers, authorities and discretions specifically given to the Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions.

(c)

Where the Agent provides services in connection with the administration of the Loans, that is when it calculates rates and amounts, keeps records, receives and distributes payments and information received under Clauses 20.1 (Financial Statements) and 20.4 (Information: miscellaneous), and receives and deals with Utilisation Requests, it does not provide those services as agent for the Lenders, but the remainder of this Clause 26 still applies.

26.2

Duties of the Agent

(a)

The Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party.

(b)

If the Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the Lenders.

(c)

The Agent shall promptly notify the Lenders of any Default arising under Clause 23.1 (Non-payment).

(d)

The Agent agrees to exercise the rights, remedies, powers and discretions and perform the obligations which are specifically delegated to or conferred on it by any Finance Documents in accordance with this clause 26. The Agent has no duties and responsibilities except those expressly set out or referred to in this Agreement.

26.3

Role of the Arranger

Except as specifically provided in the Finance Documents or as otherwise agreed in writing, the Arranger does not have any obligations of any kind to any other Party under or in connection with any Finance Document.

26.4

No fiduciary duties

(a)

Nothing in this Agreement constitutes the Agent or the Arranger as a trustee or fiduciary of any other person.

(b)

Neither the Agent nor the Arranger shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.

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26.5

Business with the Group

The Agent and the Arranger may accept deposits from, lend money to and generally engage in any kind of banking or other business with any member of the Group.

26.6

Rights and discretions of the Agent

(a)

The Agent may rely on:

(i)

any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and

(ii)

any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify.

(b)

The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:

(i)

no Default has occurred (unless it has actual knowledge of a Default arising under Clause 23.1 (Non-payment));

(ii)

any right, power, authority or discretion vested in any Party or the Majority Lenders has not been exercised; and

(iii)

any notice or request made by the Borrower (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of all the Obligors.

(c)

The Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts.

(d)

The Agent may act in relation to the Finance Documents through its personnel and agents.

26.7

Majority Lenders’ instructions

(a)

Unless a contrary indication appears in a Finance Document, the Agent shall (i) act in accordance with any instructions given to it by the Majority Lenders (or, if so instructed by the Majority Lenders, refrain from acting or exercising any right, power, authority or discretion vested in it as Agent) and (ii) not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance with such an instruction of the Majority Lenders.

(b)

Unless a contrary indication appears in a Finance Document, any instructions given by the Majority Lenders will be binding on all the Lenders and the Arranger.

(c)

The Agent may refrain from acting in accordance with the instructions of the Majority Lenders (or, if appropriate, the Lenders) or under paragraph (d) until it has received such security as it may require for any cost, loss or liability (including any associated Indirect Tax) which it may incur in complying with the instructions.

(d)

In the absence of instructions from the Majority Lenders, (or, if appropriate, the Lenders) the Agent may act (or refrain from taking action) as it considers to be in the best interest of the Lenders.

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(e)

The Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender’s consent) in any legal or arbitration proceedings relating to any Finance Document.

26.8

Responsibility for documentation

Neither the Agent nor the Lenders is responsible:

(a)

for the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Agent, a Lender, an Obligor or any other person given in or in connection with any Finance Document; or

(b)

for the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document.

26.9

Exclusion of liability

(a)

Without limiting paragraph (b) below, the Agent will not be liable for any action taken by it, or for omitting to take action under or in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct.

(b)

No Party may take any proceedings against any officer, employee or agent of the Agent in respect of any claim it might have against the Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or agent of the Agent may rely on this Clause 26.9.

(c)

The Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Agent if the Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Agent for that purpose.

26.10

Lenders’ indemnity to the Agent

Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Agent, within three Business Days of demand, against any cost, loss or liability incurred by the Agent (otherwise than by reason of the Agent’s gross negligence or wilful misconduct) in acting as Agent under the Finance Documents (unless the Agent has been reimbursed by an Obligor pursuant to a Finance Document).

26.11

Resignation of the Agent

(a)

The Agent may resign and appoint one of its Affiliates acting through an office in Australia as successor by giving notice to the Lenders and the Borrower.

(b)

Alternatively the Agent may resign by giving notice to the Lenders and the Borrower, in which case the Majority Lenders (after consultation with the Borrower) may appoint a successor Agent.

(c)

If the Majority Lenders have not appointed a successor Agent in accordance with paragraph (b) above within 30 days after notice of resignation was given, the Agent (after consultation with the Borrower) may appoint a successor Agent (acting through an office in the same time zone in Australia).

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(d)

The retiring Agent shall, at its own cost, make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents.

(e)

The Agent’s resignation notice shall only take effect upon the appointment of a successor.

(f)

Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of this Clause 26. Its successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.

(g)

After consultation with the Borrower, the Majority Lenders may, by notice to the Agent, require it to resign in accordance with paragraph (b) above. In this event, the Agent shall resign in accordance with paragraph (b) above.

26.12

Confidentiality

(a)

In acting as agent for the Finance Parties, the Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.

(b)

If information is received by another division or department of the Agent, it may be treated as confidential to that division or department and the Agent shall not be deemed to have notice of it.

(c)

Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent nor any Lender is obliged to disclose to any other person (i) any confidential information or (ii) any other information if the disclosure would or might in its reasonable opinion constitute a breach of any law or a breach of a fiduciary duty.

26.13

Relationship with the Lenders

The Agent may treat each Lender as a Lender, entitled to payments under this Agreement and acting through its Facility Office unless it has received not less than five Business Days (or such lesser period as the Agent may agree) prior notice from that Lender to the contrary in accordance with the terms of this Agreement.

26.14

Credit appraisal by the Lenders

Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Lender confirms to the Agent and the Arranger that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Finance Document including but not limited to:

(a)

the financial condition, status and nature of each member of the Group;

(b)

the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other agreement, arrangement or document;

(c)

whether that Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document; and

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(d)

the adequacy, accuracy and/or completeness of any other information provided by the Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document.

26.15

Reference Banks

If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender of which it is an Affiliate) ceases to be a Lender, the Agent shall (in consultation with the Borrower) appoint another Lender or an Affiliate of a Lender or any bank approved by the Majority Lenders to replace that Reference Bank.

26.16

Agent’s Management Time

Any amount payable to the Agent under Clause 15.3 (Indemnity to the Agent), Clauses 17.2 and 17.3 (Costs and expenses) and Clause 26.10 (Lenders’ indemnity to the Agent) shall include the cost of utilising the Agent’s management time or other resources and will be calculated on the basis of such reasonable daily or hourly rates as the Agent may notify to the Company and the Lenders, and is in addition to any fee paid or payable to the Agent under Clause 12 (Fees).

27.

Conduct of business by the Finance Parties

No provision of this Agreement will:

(a)

interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;

(b)

oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or

(c)

oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.

28.

Sharing among the Lenders

28.1

Payments to Lenders

If a Lender (a ‘Recovering Lender’) receives or recovers any amount other than in accordance with Clause 29 (Payment mechanics) and applies that amount to a payment due under the Finance Documents then:

(a)

the Recovering Lender shall, within three Business Days, notify details of the receipt or recovery, to the Agent;

(b)

the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Lender would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance with Clause 29 (Payment mechanics), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and

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(c)

the Recovering Lender shall, within three Business Days of demand by the Agent, pay to the Agent an amount (the ‘Sharing Payment’) equal to such receipt or recovery less any amount which the Agent determines may be retained by the Recovering Lender as its share of any payment to be made, in accordance with Clause 29.5 (Partial payments).

28.2

Redistribution of payments

(a)

The Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it between the Finance Parties (other than the Recovering Lender) in accordance with Clause 29.5 (Partial payments).

(b)

Unless paragraph (c) applies:

(i)

the receipt or recovery referred to in Clause 28.1 (Payments to Lenders) will be taken to have been a payment for the account of the Agent and not to the Recovering Lender for its own account, and the liability of the relevant Obligor to the Recovering Lender will only be reduced to the extent of any distribution retained by the Recovering Lender under Clause 28.1(c) ; and

(ii)

(without limiting sub-paragraph (i)) the relevant Borrower shall indemnify the Recovering Lender against a payment under Clause 28.1(c) to the extent that (despite sub-paragraph (i)) its liability has been discharged by the recovery or payment.

(c)

Where:

(i)

the amount referred to in Clause 28.1 (Payments to Lenders) above was received or recovered otherwise than by payment (for example, set off); and

(ii)

the relevant Obligor, or the person from whom the receipt or recovery is made, is insolvent at the time of the receipt or recovery, or at the time of the payment to the Agent, or becomes insolvent as a result of the receipt, or recovery or the payment,

then the following will apply so that the Finance Parties have the same rights and obligations as if the money had been paid by the relevant Obligor to the Agent for the account of the Finance Parties and distributed accordingly:

(iii)

each other Finance Party will assign to the Recovering Lender an amount of the debt owed by the relevant Obligor to that Finance Party under the Finance Documents equal to the amount received by that Finance Party under paragraph (a);

(iv)

the Recovering Lender will be entitled to all rights (including interest and voting rights) under the Finance Documents in respect of the debt so assigned; and

(v)

that assignment will take effect automatically on payment of the Sharing Payment by the Agent to the other Finance Party.

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28.3

Reversal of redistribution

If any part of the Sharing Payment received or recovered by a Recovering Lender becomes repayable and is repaid by that Recovering Lender, then:

(a)

each Lender which has received a share of the relevant Sharing Payment pursuant to Clause 28.2 (Redistribution of payments) shall, upon request of the Agent, pay to the Agent for account of that Recovering Lender an amount equal to its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Lender for its proportion of any interest on the Sharing Payment which that Recovering Lender is required to pay);

(b)

to the extent necessary, any debt assigned under Clause 28.2(c) will be reassigned; and

(c)

the relevant Obligor will be liable to the reimbursing Lender for the amount so reimbursed.

28.4

Exceptions

(a)

This Clause 28 shall not apply to the extent that the Recovering Lender would not, after making the payment pursuant to this Clause 28, have a valid and enforceable claim (or right of proof in an administration) against the relevant Obligor.

(b)

A Recovering Lender is not obliged to share with any other Lender any amount which the Recovering Lender has received or recovered as a result of taking legal or arbitration proceedings, if:

(i)

it notified the other Lender of the legal or arbitration proceedings; and

(ii)

the other Lender had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice or did not take separate legal or arbitration proceedings.

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Section 10 - Administration

29.

Payment Mechanics

29.1

Payments to the Agent

(a)

On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or Lender shall make the same available to the Agent (unless a contrary indication appears in a Finance Document) for value on the due date at 12 midday and in such funds specified by the Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.

(b)

Payment shall be made to:

(i)

in respect of US$, at the account of the Agent in New York, NY specified below; and

Bank:

Swift Address:

Account Name:

Account Number:

CHIPS UID:

(ii)

in respect of A$, at the account of the Agent specified below.

Bank:

Account Name:

BSB / Account Number:

(c)

Payment by an Obligor to the Agent for the account of a Finance Party satisfies the Obligor’s obligation to make that payment.

29.2

Distributions by the Agent

Each payment received by the Agent under the Finance Documents for another Party shall, subject to Clause 29.3 (Distributions to an Obligor) and Clause 29.4 (Clawback) be made available by the Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such Account as that Party may notify to the Agent by not less than five Business Days’ notice with a bank in Australia (in the case of amounts in Australian dollars) or the United States of America (in the case of amounts in United States dollars).

29.3

Distributions to an Obligor

The Agent may (with the consent of the Obligor or in accordance with Clause 30 (Set-off)) apply any amount received by it for that Obligor in or towards payment (on the date and in the currency and funds of receipt) of any amount due from that Obligor under the Finance Documents or, if the amount received is not in Australian dollars or United States dollars, in or towards purchase of any amount of Australian dollars or United States dollars to be so applied.

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29.4

Clawback

(a)

Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.

(b)

If the Agent pays an amount to another Party and it proves to be the case that the Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds.

29.5

Partial payments

(a)

If the Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:

(i)

first, in or towards payment pro rata of any unpaid fees, costs and expenses of the Agent under the Finance Documents;

(ii)

secondly, in or towards payment pro rata of any accrued interest or commission due but unpaid under this Agreement;

(iii)

thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and

(iv)

fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.

(b)

The Agent shall, if so directed by all Lenders, vary the order set out in paragraphs (a)(ii) to (iv) above.

(c)

Paragraphs (a) and (b) above will override any appropriation made by an Obligor.

29.6

No set-off by Obligors

All payments to be made by an Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.

29.7

Business Days

(a)

Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).

(b)

During any extension of the due date for payment of any principal or an Unpaid Sum under this Agreement interest is payable on the principal at the rate payable on the original due date.

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29.8

Currency of account

(a)

Subject to paragraphs (b) to (e) below, the Australian dollar is the currency of account and payment for any sum due from an Obligor under any Finance Document.

(b)

A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall be made in the currency in which that Loan or Unpaid Sum is denominated on its due date.

(c)

Any amount expressed to be payable in a currency other than Australian dollars shall be paid in that other currency.

29.9

Netting on rollover

Despite anything else in a Finance Document, only the net difference (if any) between a Rollover Loan and the applicable maturing Loan need be repaid by the Borrower or advanced by the Lenders participating in the Rollover Loan (as the case may be).

30.

Set-off

If an Event of Default is subsisting a Finance Party may, but need not, set off any matured obligation due from an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any obligation owed by that Finance Party to that Obligor (whether or not matured), regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.

31.

Notices

31.1

Communications in writing

Subject to Clause 31.4 (Electronic transmission of notice by or to the Agent) any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by fax, electronic transmission or letter.

31.2

Addresses

The postal address, email and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with the Finance Documents is:

(a)

in the case of the Borrower, that identified with its name below;

(b)

in the case of each Lender or any other Obligor, that specified in Schedule 1 (The Original Parties) or notified in writing to the Agent on or prior to the date on which it becomes a Party; and

(c)

in the case of the Agent, that identified with its name below,

or any substitute address, fax number, email address (if applicable), or department or officer as the Party may notify to the Agent (or the Agent may notify to the other Parties, if a change is made by the Agent) by not less than five Business Days’ notice.

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Borrower:

Address		▇▇▇▇▇ ▇▇, ▇▇▇ Centre, ▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇

Email:		▇▇▇▇▇▇▇▇.▇▇▇▇@▇▇▇.▇▇▇.▇▇

Fax No:		(▇▇) ▇▇▇▇ ▇▇▇▇

Attention:		▇▇▇▇▇▇▇▇ ▇▇▇▇

Agent:

Address:

Email:

Fax No:

Attention:

31.3

Delivery

(a)

Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective:

(i)

if by way of fax, when received in legible form; or

(ii)

if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address; or

(iii)

if by way of electronic transmission:

when received and opened by the recipient; or

if it complies with the rules under Clause 31.4 (Electronic transmission of notice by or to the Agent),

and, if a particular department or officer is specified as part of its address details provided under Clause 31.2 (Addresses), if addressed to that department or officer.

(b)

Any communication or document to be made or delivered to the Agent will be effective only when actually received by the Agent and then only if it is expressly marked for the attention of the department or officer identified with the Agent’s signature below (or any substitute department or officer as the Agent shall specify for this purpose).

(c)

All notices from or to an Obligor shall be sent through the Agent.

(d)

Any communication or document made or delivered to the Borrower in accordance with this Clause 312 will be deemed to have been made or delivered to each of the Obligors.

31.4

Electronic transmission of notice by or to the Agent

Commencing on a date to be determined by the Agent and notified to the other parties to this Agreement, notices, requests, demands, consents, approvals, agreements or other communications to or by the Agent:

(a)

may be given by means of a secure website access to which is restricted to the parties to the Transaction Documents (and, where applicable, their financial and legal advisers) established by the Agent or other electronic means in a manner and subject to rules established by the Agent and agreed with the Borrower; and

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(b)

will be taken to be given or made in accordance with those rules.

31.5

Notification of address, fax number and email address

Promptly upon receipt of notification of an address, fax number and email address or change of address, fax number or email address pursuant to Clause 31.2 (Addresses) of an Obligor or changing its own address, fax number or email address, the Agent shall notify the other Parties.

31.6

Reliance

Any notice sent under this Clause 31 can be relied on by the recipient if the recipient reasonably believes the notice to be genuine and if it bears what appears to be the signature (original or facsimile) of an authorised signatory of the sender (without the need for further enquiry or confirmation). Each Party must take reasonable care to ensure that no forged, false or unauthorised notices are sent to another Party.

31.7

English language

(a)

Any notice given under or in connection with any Finance Document must be in English.

(b)

All other documents provided under or in connection with any Finance Document must be:

(i)

in English; or

(ii)

if not in English, and if so required by the Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.

32.

Calculations and Certificates

32.1

Accounts

In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by a Finance Party are prima facie evidence of the matters to which they relate.

32.2

Certificates and Determinations

Any certification or determination by a Finance Party of a rate of interest or amount is sufficient evidence of the matters to which it relates unless the contrary is proved.

32.3

Day count convention

Any interest, commission or fee accruing under a Finance Document will accrue from day to day and is calculated on the basis of the actual number of days elapsed and a year of 365 days (in the case of amounts in Australian dollars) or 360 days (in the case of amounts in United States Dollars).

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33.

Partial invalidity

If, at any time, any provision of the Finance Documents is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.

34.

Remedies and waivers

No failure to exercise, nor any delay in exercising, on the part of any Finance Party, any right or remedy under the Finance Documents shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.

35.

Amendments and waivers

35.1

Required consents

(a)

Subject to Clause 35.2 (Exceptions) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Borrower and any such amendment or waiver will be binding on all Parties.

(b)

The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 35. The Borrower may effect, on behalf of any Obligor, any amendment or waiver (regardless of whether it is material).

35.2

Exceptions

(a)

An amendment or waiver that has the effect of changing or which relates to:

(i)

the definition of ‘Majority Lenders’ in Clause 1.1 (Definitions);

(ii)

an extension to the date of payment of any amount under the Finance Documents;

(iii)

the definition of ‘Margin’ or the amount of any payment of principal, interest, fees or commission payable or any other payment obligation;

(iv)

an increase in Commitment;

(v)

a change to the Borrower or Guarantor;

(vi)

any provision which expressly requires the consent of all the Lenders;

(vii)

Clause 2.2 (Lenders’ rights and obligations), Clause 16 (Mitigation by the Lenders), Clause 24 (Changes to the Lenders), Clause 28 (Sharing among the Lenders) or this Clause 35;

shall not be made without the prior consent of all the Lenders.

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(b)

An amendment or waiver which relates to the rights or obligations of the Agent may not be effected without the consent of the Agent.

36.

Counterparts

Each Finance Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of the Finance Document.

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Section 11 - Governing Law and Enforcement

37.

Governing Law

This Agreement is governed by Victorian law.

38.

Enforcement

38.1

Jurisdiction

(a)

The courts having jurisdiction in Victoria have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement) (a ‘Dispute’).

(b)

The Parties agree that those courts are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.

(c)

Despite the above paragraphs, no Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, Parties may take concurrent proceedings in any number of jurisdictions.

38.2

Service of process

Without prejudice to any other mode of service allowed under any relevant law, each Party (other than a Party incorporated or registered in Australia):

(a)

irrevocably appoints the Agent (in the case of a Finance Party) or the Borrower (in the case of an Obligor) as its agent for service of process in relation to any proceedings in connection with any Finance Document; and

(b)

agrees that failure by the process agent to notify the relevant Party of the process will not invalidate the proceedings concerned.

Each Party expressly agrees and consents to the provisions of this Clause 38. The Agent and Borrower accept their respective appointments as process agents.

This Agreement has been entered into on the date stated at the beginning of this Agreement.

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SCHEDULE 1 - THE GUARANTOR AND THE LENDERS

Part I

The Guarantor

Name of Guarantor

Registration number (or

equivalent, if any)

Address for Service of Notice

WMC Resources Ltd

ABN 76 004 184 598

▇▇▇▇▇ ▇▇, ▇▇▇ Centre,

▇▇ ▇▇▇▇ ▇▇▇▇,

▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇

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Part II

Lenders

Name of Lender

Commitment

Address for Service of

Notice

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SCHEDULE 2 - CONDITIONS PRECEDENT

Conditions Precedent to Initial Utilisation

1.	Obligors

(a)

A certified copy of the certificate of registration and constitution of each Obligor.

(b)

A certified copy of a resolution of the directors of the Borrower:

(i)

approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it executes the Finance Documents to which it is a party;

(ii)

resolving that the entry into each Finance Document is in its best interests of the relevant Obligor, for its corporate benefit and for a proper purpose; and

(iii)

authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party,

and, in respect of WMC Resources Ltd:

(iv)

a certified copy of a resolution of the directors of WMC Resources Ltd appointing a committee to whom it has delegated its powers in respect of the matters referred to in the above paragraphs (i)-(iii), under and in accordance with Rule 98 of the constitution of WMC Resources Ltd (the ‘Committee’); and

(v)

a certified copy of a resolution of the members of each of the Committees on the terms of the above paragraphs (i)-(iii).

(c)

A certified copy of the power of attorney appointing attorneys to execute each Finance Document to which it is a party, from each Obligor executed under common seal or by two directors or a director and a secretary.

(d)

A specimen of the signature of each person authorised by the resolution referred to in paragraph (c) above.

(e)

The Original Financial Statements.

2.	Legal opinions

(a)

A legal opinion of Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, legal advisers to the Agent and Lenders, substantially in the form distributed to the Joint Lead Arrangers prior to signing this Agreement.

(b)

A legal opinion of ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇, the US legal advisers to the Obligors that the guarantee provided under this agreement is the same as the security offered by the Group under the US$ global bond issue.

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3.	Other documents and evidence

(a)

A certified copy of the Class Order Guarantee together with certified copies of all documents under which a member of the Group acceded to, or was released from the Class Order Guarantee.

(b)

An original executed counterpart of each Finance Document.

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SCHEDULE 3 - REQUESTS

Utilisation Request


From:		WMC Finance Limited

To:		[Agent]

Dated:

Dear Sirs

WMC Finance Limited – US$250,000,000 Facility Agreement

dated [ ] 2004 (the ‘Facility Agreement’)

1.	We refer to the Facility Agreement. Terms defined in the Facility Agreement shall have the same meaning in this Utilisation Request.

2.	We wish to borrow a Loan on the following terms:


*Proposed Utilisation Date^:**		[ ] (or, if that is not a Business Day, the next Business Day)

Currency of Loan:		A$/US$

Amount:		[ ] or, if less, the Available Facility

Interest Period:		[ ]

Is this a Swingline Loan?		Yes/No

3.	We confirm that each condition specified in Clause 4.2 (Further conditions precedent) is satisfied on the date of this Utilisation Request.

4.	We confirm that, except as disclosed below in writing, no Default is subsisting and that any utilisation under this Utilisation Request will not result in or cause a Default.

[Disclosures]

To avoid doubt, mere disclosure of an event contemplated by this paragraph does not excuse or waive any Default that might arise or have arisen. Nothing in this Utilisation Request prejudices or modifies any Lender’s rights under Clause 4.2.

5.	The proceeds of this Loan should be credited to [account].

6.	This Utilisation Request is irrevocable.

Yours faithfully

authorised signatory for

WMC Finance Limited

*	The proposed Utilisation Date must be at least three Business Days after the date of this Utilisation Request, except for Utilisation Requests for Loans in Australia dollars in respect of the Facility in an amount of A$50,000,000 or less, which may be dated the same day as the Utilisation Date.

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SCHEDULE 4 - FORM OF TRANSFER CERTIFICATE


To:		[ ] as Agent

From:		[The Existing Lender] (the ‘Existing Lender’) and [The New Lender] (the ‘New Lender’)

Dated:

WMC Finance Limited – US$250,000,000 Facility Agreement

dated [ ] 2004 (the ‘Facility Agreement’)

1.	We refer to the Facility Agreement. Terms used in the Facility Agreement shall have the same meaning in this Transfer Certificate and the following definition applies:

2.	We refer to Clause 24.5 (Procedure for transfer):

The Existing Lender and the New Lender agree to the Existing Lender and the New Lender novating all or part of the Existing Lender’s Commitment, other rights and obligations referred to in the Schedule.

(c)

The proposed Transfer Date is [ ].

(d)

The Facility Office and address, email, fax number and attention details for notices of the New Lender for the purposes of Clause 34.2 (Addresses) are set out in the Schedule.

3.	The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in paragraph (c) of Clause 24.4 (Limitation of responsibility of Existing Lenders).

This Transfer Certificate is governed by Victorian law. THE SCHEDULE - COMMITMENT/RIGHTS AND OBLIGATIONS TO BE TRANSFERRED

[insert relevant details]

[Facility Office address, fax number, email and attention details for notices and account details for payments,]


[Existing Lender]				[New Lender]

By:				By

This Transfer Certificate is accepted by the Agent for itself and on behalf of the Borrower, each Guarantor and each Lender other than the Existing Lender or the New Lender, and the Transfer Date is confirmed as [ ].

[Agent]

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SCHEDULE 5 - FORM OF COMPLIANCE CERTIFICATE


To:		[ ] as Agent

From:		[Guarantor]

Dated:

Dear Sirs

WMC Finance Limited – US$250,000,000 Facility Agreement

dated [ ] 2004 (the ‘Facility Agreement’)

1.	We refer to the Facility. Terms used in the Facility Agreement shall have the same meaning in this Compliance Certificate.

2.	We confirm that as at the date of the attached Financial Statements: [Insert details of computations of financial covenants, and if applicable Clause 22.3(c)(xv) (Negative Pledge).

3.	[We confirm that no Default is continuing.]^*


Signed:
		Director/Chief Financial Officer
		of [Guarantor]

[insert applicable auditor certification language in the certificate with respect to the annual Financial Statements]

for and on behalf of

[name of auditors of the Group]

*	If this statement cannot be made, the certificate should identify any Default that is continuing and the steps, if any, being taken to remedy it.

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SCHEDULE 6 – TIMETABLES

Loans in Australian dollars


Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Utilisation Request)		(a) With respect to a Utilisation Request for a Loan under Clause 5.1(b) in an amount of A$50,000,000 or less, 10:00 am (Sydney time) on the Utilisation Date.

		(b) With respect to any other Utilisation Request, 11:00 am (Sydney time) 1 Business Day before the Utilisation Date.

Agent notifies the Lenders of the Loan in accordance with Clause 5.4 (Lenders’ participation)		(a) With respect to a Utilisation Request for a Loan under Clause 5.1(b) in an amount of A$50,000,000 or less, 11:00 am (Sydney time) on the Utilisation Date.

		(b) With respect to any other Utilisation Request, 12:00 noon (Sydney time) 1 Business Day before the Utilisation Date

Base Rate is fixed		Quotation Day as of 10:30 am (Sydney time)

Loans in United States dollars


Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Utilisation Request)		11:00 am (Sydney time) 2 Business Days before the Utilisation Date.

Agent notifies the Lenders of the Loan in accordance with Clause 5.4 (Lenders’ participation)		12:00 noon (Sydney time) 2 Business Days before the Utilisation Date

Base Rate is fixed		Quotation Day as of 11:00 am (London time)

Page 72

Facility Agreement

Each attorney executing this Agreement states that he or she has not received notice of the revocation or suspension of his power of attorney.


Signed for WMC Finance Limited by its attorney under power of attorney dated [ ]:


Attorney Signature		Witness Signature


Print Name		Print Name

Signed for WMC Resources Ltd by its attorney under power of attorney dated [ ]:


Attorney Signature		Witness Signature


Print Name		Print Name

Page 73

Facility Agreement


Signed for Commonwealth Bank of Australia by its attorney under power of attorney dated *17 November 1997*:


Attorney Signature		Witness Signature


Print Name		Print Name

[OTHER EXECUTION CLAUSES TO BE INSERTED]

Page 74

US$250,000,000 Facility Agreement WMC Finance Limited the Lenders with Commonwealth Bank of Australia acting as Agent and Arranger

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