DUAL CURRENCY TERM FACILITIES AGREEMENT

Exhibit 15

Draft: 16 May 2006

DUAL CURRENCY TERM FACILITIES AGREEMENT

$3,500,000,000

DEBT BRIDGE FACILITY AGREEMENT

dated [•] 2006

for

XSTRATA (SCHWEIZ) AG

arranged by

BARCLAYS CAPITAL

DEUTSCHE BANK AG, LONDON BRANCH
▇.▇. ▇▇▇▇▇▇ PLC

THE ROYAL BANK OF SCOTLAND PLC

with

BARCLAYS CAPITAL

DEUTSCHE BANK AG, LONDON BRANCH

▇.▇. ▇▇▇▇▇▇ PLC

THE ROYAL BANK OF SCOTLAND PLC

acting as Bookrunners

and

BARCLAYS BANK PLC

acting as Facility Agent

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THIS AGREEMENT (the “Agreement”) is dated [•] and made between:

IT IS AGREED as follows:

SECTION 1

INTERPRETATION

1.                                 Definitions and interpretation

1.1                           Definitions

In this Agreement:

“Acceleration Date” means the date (if any) on which the Facility Agent gives a notice under Clause 24.15 (Acceleration).

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

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

“Acquisition Facilities” means the facilities made available under the Acquisition Facility Agreement.

“Acquisition Facility Agreement” means the US$8,500,000,000 facilities agreement dated on or about the date of this Agreement and on terms substantially similar to this Agreement between the Company, the Parent, the borrowers and guarantors named in it, the Facility Agent, the Mandated Lead Arrangers and the lenders named in it.

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

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

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“Additional Guarantor” means a company which becomes an Additional Guarantor in accordance with Clause 26 (Changes to the Obligors).

“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.

“ASIC” means the Australian Securities & Investments Commission.

“Authorisation” means:

(a)                                   an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration; or

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

“Availability Period” means the period from and including the date of this Agreement to and including the date which is 6 Months after the date of this Agreement provided that in any case the first Utilisation of the Facility has occurred within 4 Months from the date of this Agreement.

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

(a)                                   the Base Currency Amount of its participation in any outstanding Loans; and

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

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

“Bank” means a financial institution which (i) qualifies as a bank pursuant to the banking laws in force in its country of incorporation, (ii) carries on a true banking activity in such jurisdiction as its main purpose, and (iii) has personnel, premises, communication devices and decision-making authority of its own, all as per explanatory notes of the Swiss Federal Tax Administration No. S-02-123(9.86) and No. S-02.128(1.2000) or legislation or explanatory notes addressing the same issues which are in force at such time.

“Base Currency”, “US Dollars” or “$” means United States dollars.

“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 Facility Agent’s Spot Rate of Exchange on the date which is three Business Days before the Utilisation Date or, if later, on the date the Facility Agent receives the Utilisation Request) adjusted to reflect any repayment (other than a repayment arising from a change of currency), prepayment, consolidation or division of the Loan.

“Bidco” means Xstrata Canada Inc.

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

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

exceeds:

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

“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in London and New York and (in relation to any date for payment or purchase of Canadian Dollars) Toronto.

“Canadian Dollars”, “C$” and “CAD” means the lawful currency of Canada.

“Certain Funds Event of Default” means any circumstance constituting an Event of Default under any of the following Clauses:

(a)                                   Clause 24.1 (Non-payment);

(b)                                  Clause 24.4 (Misrepresentation) (in relation only to Certain Funds Repeated Representations and other than in relation to the Target or its Subsidiaries);

(c)                                   Clause 24.3 (Other obligations) (in relation only to a breach under Clause 23.4 (Negative Pledge), Clause 23.5 (Disposals), Clause 23.6 (Financial Indebtedness), Clause 23.7 (Change of Business), Clause 23.8 (Merger), Clause 23.13 (Compulsory Acquisition Procedures or Subsequent Acquisition Transaction), or Clause 23.12 (The Offer), in each case (other than Clause 23.12 (The Offer)) other than in relation to Target or any of its Subsidiaries;

(d)                                  Clause 24.5 (a) and (e) (Cross Default) (other than in relation to Target or any of its Subsidiaries);

(e)                                   Clause 24.6 (Insolvency) (other than in relation to Target or any of its Subsidiaries);

(f)                                     Clause 24.7 (Insolvency proceedings) (other than in relation to Target or any of its Subsidiaries);

(g)                                  Clause 24.8 (Creditors’ process) (other than in relation to Target or any of its Subsidiaries);

(h)                                  Clause 24.9 (Ownership);

(i)                                      Clause 24.10 (Unlawfulness)

(j)                                      Clause 24.11 (Repudiation); and

(k)                                   Clause 24.12 (Guarantees).

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“Certain Funds Period” means the period commencing on the date on which the Press Release is issued and ending on the earliest of:

(a)                                   the date falling six Months after the date of this Agreement;

(b)                                  the date on which the Offer lapses or is withdrawn; and

(c)                                   the date on which Target has become a wholly-owned Subsidiary of the Company.

“Certain Funds Repeated Representations” means each of the representations set out in Clauses 20.1 (Status), 20.2 (Binding obligations), 20.3 (Non-conflict with other obligations), 20.4 (Power and authority), 20.13 (Assets), 20.16 (Group Structure) and 20.17 (No Financial Indebtedness or Security).

“Class 1 Circular” means the circular dated [•] 2006 sent by the Parent to its shareholders setting out the terms and conditions of the Offer.

“Clean-up Period” means the period of 6 Months from and including the Unconditional Date.

“Commitment” means:

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

(b)                                  in relation to any other Lender, the amount in the Base Currency of any Commitment transferred to it under this Agreement,

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

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

“Compulsory Acquisition” means the acquisition by Bidco of all of the Shares not acquired by Bidco pursuant to the Offer (or already owned by Bidco, the Company or any other member of the Group) by way of the Compulsory Acquisition Procedures.

“Compulsory Acquisition Procedures” means the procedures set out in section 188 of the Business Corporations Act (Ontario) which permit an offeror to acquire the securities not tendered to a take-over bid for securities of a particular class of securities of a corporation if, within 120 days after the date of the offer, the offer is accepted by the holders of not less than 90% of the securities to which the offer relates, other than securities held at the date of the offer by or on behalf of the offeror or its affiliates or associates (as such terms are defined in such act).

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

“Consolidated Borrowings” means, as at any particular time, the aggregate outstanding principal, capital or nominal amount (and any fixed or minimum premium payable on prepayment or redemption) of the borrowings of members of the Group calculated in accordance with GAAP

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as applied in the most recent consolidated financial statements of the Parent delivered to the Facility Agent in accordance with Clause 21.1 or 21.2, as the case may be.

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

“Consolidated Net Worth” means, at any time, the Total Equity of the Parent as shown in the most recent consolidated financial statements of the Parent delivered to the Facility Agent in accordance with Clause 21.1 or 21.2, as the case may be, less (but without double counting) any amount included in the above which is attributable to:

(a)                                   goodwill or other intangible assets acquired after the date of the Original Financial Statements or arising from the acquisition of the Target;

(b)                                  (to the extent included) any amounts arising from an upward revaluation of assets made at any time after the date to which the Original Financial Statements are made up unless such revaluation is performed by independent professional valuers or in accordance with GAAP; and

(c)                                   any redeemable shares of the Parent,

but ignoring any variation in the credit or debit balances on the Group consolidated profit and loss account since the date of the then latest audited consolidated balance sheet of the Group except to the extent reflected in any later Group consolidated profit and loss statement delivered to the Facility Agent under Clause 21 (Information Undertakings).

“Default” means an Event of Default or any event or circumstance specified in Clause 24 (Events of Default), which would (with the lapse of time, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.

“EBITDA” means, in relation to any Relevant Period, the total consolidated operating profit of the Group for that Relevant Period as shown in the most recent consolidated financial statements of the Parent delivered to the Facility Agent in accordance with Clause 21.1 or 21.2, as the case may be:

(a)                                   before taking into account:

(i)                                  goodwill amortisation;

(ii)                               Interest Expense;

(iii)                            Tax;

(iv)                           all extraordinary and exceptional items;

(b)                                  after adding back all amounts provided for depreciation and amortisation;

(c)                                   before any adjustment for amounts (negative or positive) included in the above which are attributable to minority interests in any member of the Group.

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

(a)                                   air (including air within natural or man-made structures, whether above or below ground);

(b)                                  water (including territorial, coastal and inland waters, water under or within land and water in drains and sewers); and

(c)                                   land (including land under water).

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

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

(b)                                  provide remedies or compensation for harm or damage to the Environment; or

(c)                                   relate to Hazardous Substances or health and safety matters.

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

“Environmental Policy” means the environmental policy of the Group.

“Equity Bridge Facility” means the facility made available under the Equity Bridge Facility Agreement.

“Equity Bridge Facility Agreement” means the US$7,000,000,000 dual currency facility agreement dated on [•] May 2006, between the Company, the Parent, the Facility Agent, the Mandated Lead Arrangers and the lenders named in it.

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

“Event of Default” means any event or circumstance specified as such in Clause 24 (Events of Default).

“Facility” means the $3,500,000,000 180 day term loan facility made available under this Agreement as described in Clause 2.1 (The Facility).

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

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

“Fee Letter” means any letters dated prior to or on or about the date of this Agreement between, as the case may be, the Mandated Lead Arrangers, the Facility Agent and the Company setting out any of the fees referred to in Clause 13 (Fees).

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

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

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

(a)                                   moneys borrowed;

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

(c)                                   any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;

(d)                                  the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP (in the jurisdiction in which such liability is incurred), be treated as a finance or capital lease;

(e)                                   receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);

(f)                                     any amount raised under any other transaction (including any forward sale or purchase agreement) required to be accounted for as a borrowing in accordance with GAAP as applied in the most recent consolidated financial statements of the Parent delivered to the Facility Agent in accordance with Clause 21.1 or 21.2, as the case may be;

(g)                                  any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account);

(h)                                  shares which are expressed to be redeemable on or prior to the Termination Date applicable to Facility C (as such terms are defined in the Acquisition Facility Agreement);

(i)                                      any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and

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

“GAAP” means UK generally accepted accounting principles from time to time.

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

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

“Group Structure Chart” means the corporate structure chart for the Group.

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

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

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

“IFRS” means International Financial Reporting Standards issued and/or adopted by the International Accounting Standards Board.

“Information Memorandum” means the document (including any supplement thereto) in the form approved by the Company concerning the Group and the Target, which, at the Company’s request and on its behalf, was prepared in relation to the Finance Documents and distributed by the Mandated Lead Arrangers to selected financial institutions.

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

(a)                                   any dividend payable on any share the obligations in respect of which constitute Financial Indebtedness;

(b)                                  any discount on any bills of exchange or bonds, note or other instruments drawn, accepted or endorsed by any member of the Group;

(c)                                   any line, facility, commitment, acceptance, discount, guarantee or other fees and amounts incurred on a regular or recurring basis payable in relation to Financial Indebtedness but not including establishment or arrangement fees payable once only; and

(d)                                  finance lease charges (but excluding finance lease charges relating to principal).

“Interest Period” means, in relation to a Loan, each period determined in accordance with Clause 11 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 10.3 (Default interest).

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

“Lender” means:

(a)                                   any Original Lender; and

(b)                                  any bank or financial institution which has become a Lender in accordance with Clause 25 (Changes to the Lenders),

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

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“LIBOR” means, in relation to any Loan:

(a)                                   the applicable Screen Rate; or

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

(c)                                   (where a Loan denominated in Canadian Dollars is first advanced and if a Lender so notifies) the rate notified to the Facility Agent by that Lender as soon as practicable, 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,

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

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

“Majority Lenders” means:

(a)                                   until the Syndication Date, all of the Original Lenders; and

(b)                                  thereafter, a Lender or Lenders whose Available Commitments and participations in the Loans then outstanding aggregate more than 66²/₃ per cent. of the Available Facility and all the Loans then outstanding.

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

“Margin” means 0.40 per cent per annum, subject to the provisions of Clause 10.5 (Margin adjustment), and provided that if any of the circumstances described in paragraph (e) of Clause 10.5 (Margin adjustment) exist then it shall mean 0.80 per cent per annum.

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

(a)                                   the consolidated financial condition, prospects or business of the Group;

(b)                                  the ability of the Obligors taken together to perform or comply with any of their obligations under any Finance Document; or

(c)                                   the validity, legality or enforceability of any Finance Document.

“Material Subsidiary” means at any time a Subsidiary of the Parent whose total assets or total revenue as at the date at which its latest audited financial statements were prepared or, as the case may be, for the financial period to which those financial statements relate, account for 5 per cent or more of the Total Assets or Total Revenue of the Group (calculated by reference to the then latest audited consolidated financial statements of the Group).

For this purpose:

(a)                                   the total assets of a Subsidiary of the Parent will be determined from its latest financial statements;

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(b)                                  the Total Assets will be determined from the latest audited consolidated accounts of the Parent adjusted (where appropriate) to reflect the total assets of any company or business subsequently acquired or disposed of;

(c)                                   if a Material Subsidiary disposes of all or substantially all of its assets to another Subsidiary of the Parent it will immediately cease to be a Material Subsidiary and the other Subsidiary (if it is not already) will immediately become a Material Subsidiary.

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

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

(a)                                   if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day; and

(b)                                  if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month.

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

“Net Fundraising Proceeds” has the meaning given to that term in Clause 9.4 (Mandatory prepayment from Net Fundraising Proceeds).

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

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

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

“Obligor” means the Borrower or a Guarantor.

“Offer” means the take-over bid to acquire all of the Shares not already owned by Bidco, or its Affiliates, made by Bidco pursuant to applicable securities laws in Canada and the United States on the terms and conditions set out in the Offer Document, as that offer may from time to time be amended, extended, revised or waived in accordance with this Agreement.

“Offer Costs” means all costs, fees and expenses (and Taxes on them) and all stamp duty, registration and other similar Taxes incurred by or on behalf of Bidco, the Company or any other member of the Group in connection with the Offer and/or the Facilities.

“Offer Document” means the document entitled “Offer to Purchase” delivered to all holders of Shares of the Target containing the Offer.

“Offer Termination Date” means the earliest date (as notified by the Company to the Facility Agent) on which all of the following have occurred:

(a)                                   all payments in respect of Shares taken up by Bidco pursuant to the Offer have been made in full;

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(b)                                  the Offer shall have been withdrawn, terminated or expired ; and

(c)                                   all procedures of Compulsory Acquisition or Subsequent Acquisition Transaction, as the case may be, of any Shares to which the Offer relates which are capable of being implemented have been completed and any and all payments pursuant thereto to holders of the Shares have been made in full.

“Optional Currency” means Canadian Dollars.

“Original Financial Statements” means the audited consolidated financial statements of the Parent for the financial year ended 31 December 2005.

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

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

“Party” means a party to this Agreement.

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

“Press Announcement” means the press announcement dated [•] 2006 issued by or on behalf of the Parent approving the terms and conditions of the Offer.

“Project Company” means each of the following:

(a)                                   any member of the Group (which is not an Obligor) designated by the Company in writing to the Facility Agent (specifying whether or not such company is a Non Recourse Project Company) for the purpose of this paragraph (a) (a “designated company”) and whose sole activity is or will be the ownership and development and/or operation of a project including without limitation:

(i)                                  the discovery, mining, extraction, transportation or development (in each case whether directly or indirectly) of metals or minerals; or

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

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

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

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

(a)                                   none of which retains the benefit of any guarantee, bond, security (other than third party security over shares in or debts or other obligations of a Project Company solely to secure that Financial Indebtedness), indemnity or other commitment from another

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member of the Group to assure the repayment of, or indemnify against loss in respect of non-payment of, that Financial Indebtedness; or

(b)                                  some or all of which does so benefit but where the relevant commitment is designed to be withdrawn or cease to apply, in accordance with the terms of that Financial Indebtedness, prior to the repayment of that Financial Indebtedness.

“Quotation Day” means, in relation to any period for which an interest rate is to be determined two Business Days before the first day of that period, unless market practice differs in the Relevant Interbank Market for a currency, in which case the Quotation Day for that currency will be determined by the Facility Agent in accordance with market practice in the Relevant Interbank Market (and if quotations for that currency and period would normally be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days).

“Receipt Date” means the date on which any Net Fundraising Proceeds have been received by any member of the Group.

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

“Relevant Interbank Market” means the London interbank market.

“Relevant Period” means

(a)                                   each financial year of the Company; and

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

“Repeating Representations” means each of the representations set out in Clause 20 (Representations) other than Clause 20.5 (Validity and admissibility in evidence), Clause 20.6 (Governing law and enforcement), Clause 20.7 (No capital duty, filing or stamp taxes), Clause 20.8 (No default), Clause 20.9 (Information Memorandum), Clause 20.12 (No proceedings pending or threatened), Clause 20.14 (Environmental Laws and Licences) and Clause 20.15 (Environmental releases).

“Reservations” means the principle that equitable remedies are remedies which may be granted or refused at the discretion of the court and that certain rights may be subject to equitable defences or relief or the general supervisory powers and discretions of the court, the limitation of enforcement by laws relating to bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration and other laws generally affecting the rights of creditors, or by the requirement for any third party consent, authorisation or approval, the time barring of claims, the possibility that an undertaking to assume liability for or to indemnify against non-payment of certain stamp, registration or other Taxes or liability for an award or order for costs or the cost of unsuccessful litigation may be void or unenforceable, defences of set-off or counterclaim and similar principles, rights and defences under the laws of any foreign jurisdictions in which relevant obligations may have to be performed and the possibility that in

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certain jurisdictions a contractual provision held to contravene public policy in those jurisdictions may be unenforceable in those jurisdictions.

“Resignation Letter” means the letter substantially in the form set out in Schedule 8 (Form of Resignation Letter).

“Screen Rate” means in relation to LIBOR, the British Bankers’ Association Interest Settlement Rate for the relevant currency and the relevant period displayed on the appropriate page of the Telerate screen. If the agreed page is replaced or service ceases to be available, the Facility Agent may specify another page or service displaying the appropriate rate after consultation with the Company and the Lenders.

“Security” means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person.

“Selection Notice” means a notice substantially in the form set out in Part II of Schedule 2 (Requests) given in accordance with Clause 11 (Interest Periods).

“Shares” means all the issued and outstanding common shares in the capital of the Target (including any shares that may become issued and outstanding while the Offer remains open for acceptance).

“Specified Time” means a time determined in accordance with Schedule 7 (Timetables).

“Subsequent Acquisition Transaction” means, after Bidco takes up and pays for Shares validly deposited under the Offer and the Compulsory Acquisition is not available or not exercised, the acquisition by way of an amalgamation, plan of arrangement, capital reorganization or other transaction involving Target and Bidco and/or one or more affiliates of Bidco of all Shares not acquired by Bidco pursuant to the Offer.

“Subsidiary” means in relation to any company or corporation (a “holding company”), a company or corporation:

(a)                                   which is controlled, directly or indirectly, by the holding company;

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

(c)                                   which is a Subsidiary of another Subsidiary of the holding company,

and, for this purpose, a company or corporation shall be treated as being controlled by another if that other company or corporation is able to determine the composition of the majority of its board of directors or equivalent body.

“Swiss Anticipatory Tax” means any withholding tax on the payment of interest and dividends (including constructive dividends) in accordance with the Swiss Federal Statute on Anticipatory Tax of 13 October 1965 (as amended from time to time).

“Swiss Borrower” means a Borrower incorporated, or for tax purposes resident, in Switzerland.

“Swiss Guarantor” means a Guarantor incorporated, or for tax purposes resident, in Switzerland.

“Swiss Obligor” means a Swiss Borrower or a Swiss Guarantor.

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“Syndication” means the syndication of the Facilities.

“Syndication Agreement” means any agreement to be entered into between the Parties to novate rights and obligations under this Agreement.

“Syndication Date” means the date (as determined by the Mandated Lead Arrangers and notified to the Company) on which the Syndication has been completed and the additional syndicate members have become bound by this Agreement.

“Target” means Falconbridge Limited.

“Tax” means any tax, levy, impost, duty (including but not limited to, stamp duty) or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).

“Taxes Act” means the Income and Corporation Taxes ▇▇▇ ▇▇▇▇.

“Termination Date” means the date which is 6 Months after the date of the first Utilisation under the Facility, or following extension in accordance with Clause 8 (Extension Option), the date which is 18 Months after the date of the first Utilisation under the Facility (except that, if the Termination Date would otherwise fall on a day which is not a Business Day, it will instead be the immediately preceding Business Day).

“Total Assets” means, at any time, consolidated total assets of the Group as shown in the most recent consolidated financial statements of the Parent delivered to the Facility Agent in accordance with Clause 21.1 or 21.2, as the case may be.

“Total Capitalisation” means at any time, the aggregate of Consolidated Borrowings and Consolidated Net Worth.

“Total Commitments” means the aggregate of the Commitments being $3,500,000,000 at the date of this Agreement.

“Total Revenue” means, for any period, consolidated total revenue of the Group as disclosed in the consolidated financial statements of the Parent delivered to the Facility Agent in accordance with Clause 21.1 or 21.2, as the case may be, for that period.

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

“Transfer Date” means, in relation to a transfer, the later of:

(a)                                   the proposed Transfer Date specified in the Transfer Certificate; and

(b)                                  the date falling 5 Business Days after receipt by the Facility Agent of fully completed transfer documentation.

“Unconditional Date” means the date on which all of the conditions of the Offer are satisfied or waived and Bidco announces that it has taken up Shares under the Offer.

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

“Utilisation” means a Loan.

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“Utilisation Date” means the date on which a Utilisation is, or is to be, made.

“Utilisation Request” means a notice substantially in the form set out in Part I of Schedule 2 (Requests).

“VAT” means value added tax as provided for in the Value Added Tax ▇▇▇ ▇▇▇▇ and any other tax of a similar nature (including, but not limited to, goods and service tax).

1.2                           Construction

(a)                            Unless a contrary indication appears, any reference in this Agreement to:

(i)                                      the “Facility Agent”, any “Mandated Lead Arranger”, the “Bookrunner”, any “Finance Party”, any “Lender”, any “Obligor”, or any “Party” shall be construed so as to include its successors in title, permitted assigns and permitted transferees;

(ii)                                   “assets” includes present and future properties, revenues and rights of every description;

(iii)                                the “equivalent” in any currency (the “first currency”) of any amount in another currency (the “second currency”) shall be construed as a reference to the amount in the first currency which could be purchased with that amount in the second currency at the Facility Agent’s spot rate of exchange for the purchase of the first currency with the second currency in the London foreign exchange market at or about 11.00 a.m. on a particular day (or at or about such time and on such date as the Facility Agent may from time to time reasonably determine to be appropriate in the circumstances);

(iv)                               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;

(v)                                  “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;

(vi)                               a “person” includes any person, firm, company, corporation, government, state or agency of a state or any association, trust or partnership (whether or not having separate legal personality) or two or more of the foregoing;

(vii)                            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;

(viii)                         a provision of law is a reference to that provision as amended or re-enacted;

(ix)                                 a time of day is a reference to London time;

(x)                                    “Barclays Capital” is a reference to Barclays Capital, the investment banking division of the Barclays Bank PLC; and

(xi)                                 a “share” includes, in respect of a company incorporated in Spain, both shares (“acciones”) and, if applicable, participations (“participaciones”).

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

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(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)                           A Default or an Event of Default is “continuing” if it has not been remedied or waived.

1.3                           Third Party Rights

A person who is not a Party has no right under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce or to enjoy the benefit of any term of this Agreement.

1.4                           Calculations

(a)                            EBITDA, Interest Expense, Consolidated Borrowings, Consolidated Net Worth, Total Assets, Total Revenue and Total Capitalisation shall be calculated and interpreted on a consolidated basis in accordance with GAAP and shall be expressed in US Dollars.

(b)                           EBITDA, Interest Expense, Consolidated Borrowings, Consolidated Net Worth, Total Assets, Total Revenue and Total Capitalisation shall be determined (except as needed to reflect the terms of this Agreement) from the financial statements of the Group and Compliance Certificates delivered under Clause 21.1 (Annual financial statements), Clause 21.2 (Half-yearly financial statements) and Clause 21.4 (Compliance Certificates). For the purposes of calculating the financial covenants in paragraphs (b) and (c) of Clause 22 (Financial Covenants), for Relevant Periods ending on dates up to and including 31 December 2006:

(i)                                      where any acquisition occurs during a Relevant Period, EBITDA shall be determined on a pro forma basis as if the acquisition occurred at the beginning of that Relevant Period; and

(ii)                                   Interest Expense will be calculated by multiplying the Interest Expense incurred since the Unconditional Date by 365 and dividing the resultant figure by the number of days from the Unconditional Date to the end of such Relevant Period.

(c)                            Consolidated Borrowings and Consolidated Net Worth shall be calculated on the basis that any amounts owed by the Group under Equity Bridge Facility Loans shall be deemed to be ordinary share capital and not borrowings.

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

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SECTION 2

THE FACILITIES

2.                                 The Facility

2.1                           The Facility

Subject to the terms of this Agreement, the Lenders make available to the Borrower a dual currency 180 day term loan facility with an extension option in an aggregate amount equal to the Total Commitments.

2.2                           Finance Parties’ rights and obligations

(a)                            The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.

(b)                           The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt.

(c)                            A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.

2.3                           Company as Obligors’ agent

Each Obligor (other than the Company):

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

(i)                                  to give and receive as agent on its behalf all notices and instructions (including Utilisation Requests);

(ii)                               to sign on its behalf all documents in connection with the Finance Documents (including amendments and variations of any Finance Documents); and

(iii)                            to take such other action as may be necessary or desirable under or in connection with the Finance Documents; and

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

2.4                           Acts of Company

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

(i)                                      any actual or purported irregularity in any act done or failure to act by the Company;

(ii)                                   the Company acting (or purporting to act) in any respect outside any authority conferred upon it by any Obligor; or

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(iii)                                any actual or purported failure by or inability of the Company to inform any Obligor of receipt by it of any notification under the Finance Documents.

(b)                           In the event of any conflict between any notices or other communications of the Company and any other Obligor, those of the Company shall prevail.

3.                                 Purpose

3.1                           Purpose

(a)                            The Borrower shall apply all amounts borrowed by it under the Facility in or towards financing or refinancing (but, in each case, only after the Unconditional Date) of:

(i)                                      the consideration payable by Bidco for the acquisition by it of those Shares of the Target to be acquired by it pursuant to the Offer;

(ii)                                   the consideration payable by Bidco for the acquisition by it of those Shares of the Target to be acquired by it pursuant to a Compulsory Acquisition or a Subsequent Acquisition Transaction;

(iii)                                the consideration payable by Bidco to holders of options to acquire Shares in the Target pursuant to any proposal by it to acquire those options;

(iv)                               the redemption purchase or other retirement by any member or members of the Group or the Target of any or all of the preferred shares of the Target outstanding at close of business on the date upon which any member or members of the Group acquire more than 50 per cent. of the Shares in the Target;

(v)                                  the Financial Indebtedness of the Target and its Subsidiaries existing at close of business on the date upon which any member or members of the Group acquire more than 50 per cent. of the Shares in the Target;

(vi)                               Offer Costs; and/or

(vii)                            the general corporate purposes of the Group.

(b)                           No amount borrowed under the Facility shall be applied in any manner that may be illegal or contravene any applicable local laws or regulations in any relevant jurisdiction concerning financial assistance by a company for the acquisition of or subscription for its own shares or concerning the protection of shareholders’ capital.

3.2                           Monitoring

No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.

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4.                                 Conditions of Utilisation

4.1                           Initial conditions precedent

(a)                            The Borrower may not deliver a Utilisation Request unless the Facility Agent has received all of the documents and other evidence listed in Part III of Schedule 1 (Conditions precedent to initial Utilisation Request) in form and substance satisfactory to the Facility Agent.  The Facility Agent shall notify the Company and the Lenders promptly upon being so satisfied.

4.2                           Further conditions precedent

Subject to the provisions of Clause 4.3 (Certain Funds), the Lenders will only be obliged to comply with Clause 5.4 (Lenders’ participation) if on the date of the Utilisation Request and on the proposed Utilisation Date:

(i)                                      no Default is continuing or would result from the proposed Loan; and

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

4.3                           Certain Funds

To ensure that Bidco has resources available to fulfil its obligations under the Offer, the Lenders agree that (without prejudice to Clause 24.17 (Certain Funds Period)) in relation to any Loan requested during the Certain Funds Period to be applied for the purposes referred to in Clause 3.1(a)(i)-(vi) (Purpose):

(a)                                        paragraph (i) of Clause 4.2 (Further conditions precedent) shall only be applicable to the extent that a Certain Funds Event of Default has occurred which is continuing; and

(b)                                       paragraph (ii) of Clause 4.2 (Further conditions precedent) shall only be applicable to the Certain Funds Repeated Representations.

4.4                           Maximum number of Utilisations

(a)                            The Borrower may deliver more than one Utilisation Request on any one day.

(b)                           The Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation more than 10 Loans would be outstanding.

(c)                            The Borrower may not request that a Loan be divided if, as a result of the proposed division, 10 Loans, would be outstanding.

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SECTION 3

UTILISATION

5.                                 Utilisation

5.1                           Delivery of a Utilisation Request

The Borrower may utilise the Facility by delivery to the Facility Agent of a duly completed Utilisation Request in the form of Part I of Schedule 2 (Requests) not later than the Specified Time provided that a Utilisation Request in respect of a Loan to be utilised for the purpose set out in Clause 3.1(a)(i) (Purpose) may be delivered no later 9.30 am on the Quotation Day.

5.2                           Completion of a Utilisation Request

(a)                            Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:

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

(ii)                                   the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount);

(iii)                                the proposed Interest Period complies with Clause 11 (Interest Periods);

(iv)                               it specifies the account and bank (which either (x) must be in the principal financial centre of the country of the currency of the Utilisation (y) must be in Toronto in the case of a Utilisation of a Loan denominated in the Base Currency for the purposes of acquiring Shares) to which the proceeds of the Utilisation are to be credited; and

(v)                                  it specifies the purpose for which the proposed Utilisation(s) is/are to be applied.

(b)                           Only one Loan may be requested in each Utilisation Request.

5.3                           Currency and amount

(a)                            The currency specified in a Utilisation Request must be the Base Currency or the Optional Currency.

(b)                           The amount of the proposed Loan must be:

(i)                                      if the currency selected is the Base Currency, a minimum of $25,000,000 and an integral multiple of $5,000,000 or, if less, the Available Facility; or

(ii)                                   if the currency selected is the Optional Currency, a minimum of C$25,000,000 and an integral multiple of C$5,000,000 or, if less, the Available Facility; or

(iii)                                in any event such that its Base Currency Amount is less than or equal to the Available Facility.

5.4                           Lenders’ participation

(a)                            If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.

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(b)                           The amount of each Lender’s participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.

(c)                            The Facility Agent shall determine the Base Currency Amount of each Loan which is to be made in the Optional Currency and shall notify each Lender of the amount, currency and the Base Currency Amount of each Loan and the amount of its participation in that Loan, in each case by the Specified Time.

6.                                 Optional Currency

6.1                           Selection of currency

(a)                            The Borrower (or the Company on behalf of the Borrower) shall select the currency of a Loan:

(i)                                      (in the case of an initial Utilisation) in a Utilisation Request; and

(ii)                                   (afterwards) in a Selection Notice.

(b)                           If the Borrower (or the Company on behalf of the Borrower) fails to issue a Selection Notice or fails to select the currency of a Loan in a Selection Notice, it shall be deemed to have requested that the Loan will remain denominated for its next Interest Period in the same currency in which it is then outstanding.

(c)                            If the Borrower (or the Company on behalf of the Borrower) issues a Selection Notice requesting a change of currency and the first day of the requested Interest Period is not a Business Day for the new currency, the Facility Agent shall promptly notify the Borrower and the Lenders and the Loan will remain in the existing currency (with Interest Periods running from one Business Day until the next Business Day) until the next day which is a Business Day for both currencies, on which day the requested Interest Period will begin.

6.2                           Change of currency

(a)                            If a Loan is to be denominated in different currencies during two successive Interest Periods:

(i)                                      if the currency for the second Interest Period is the Optional Currency, the amount of that Loan in the Optional Currency will be calculated by the Facility Agent as the amount of the Optional Currency equal to the Base Currency Amount of the Loan at the Facility Agent’s Spot Rate of Exchange at 11:00 a.m. on the Quotation Day;

(ii)                                   if the currency for the second Interest Period is the Base Currency, the amount of the Loan will be equal to the Base Currency Amount;

(iii)                                (unless the Facility Agent and the Borrower agree otherwise in accordance with paragraph (b) below) the Borrower that has borrowed the Loan shall repay it on the last day of the first Interest Period in the currency in which it was denominated for that Interest Period; and

(iv)                               (subject to Clause 4.2 (Further conditions precedent)) the Lenders shall re-advance the Loan in the new currency in accordance with Clause 6.4 (Facility Agent’s calculations).

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

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(i)                                      apply the amount paid to it by the Lenders to be re-advanced pursuant to paragraph (a)(iv) above (or so much of that amount as is necessary) in or towards purchase of an amount in the currency in which the Loan is outstanding for the first Interest Period; and

(ii)                                   use the amount it purchases in or towards satisfaction of the relevant Borrower’s obligations under paragraph (a)(iii) above.

(c)                            If the amount purchased by the Facility Agent pursuant to paragraph (b)(i) above is less than the amount required to be repaid by the Borrower, the Facility Agent shall promptly notify that Borrower and that Borrower shall, on the last day of the first Interest Period, pay an amount to the Facility Agent (in the currency of the outstanding Loan for the first Interest Period) equal to the difference.

(d)                           If any part of the amount paid to the Facility Agent by the Lenders pursuant to paragraph (a)(iv) above is not needed to purchase the amount required to be repaid by the relevant Borrower, the Facility Agent shall promptly notify that Borrower and pay that Borrower, on the last day of the first Interest Period, that part of that amount (in the new currency).

6.3                           Optional Currency during successive Interest Periods

(a)                            If a Loan is to be denominated in the Optional Currency during two successive Interest Periods, the Facility Agent shall calculate the amount of the Loan in the Optional Currency for the second of those Interest Periods (by calculating the amount of Optional Currency equal to the Base Currency Amount of that Loan at the Facility Agent’s Spot Rate of Exchange at or about the Specified Time and (subject to paragraph (b) below):

(i)                                      if the amount calculated is less than the existing amount of that Loan in the Optional Currency during the first Interest Period, promptly notify the Borrower and that Borrower shall pay, on the last day of the first Interest Period, an amount equal to the difference; or

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

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

6.4                           Facility Agent’s calculations

(a)                            All calculations made by the Facility Agent pursuant to this Clause 6 will take into account any repayment, prepayment, consolidation or division of Loans to be made on the last day of the first Interest Period for that Loan.

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(b)                           Each Lender’s participation in a Loan will, subject to paragraph (a) above, be determined in accordance with paragraph (b) of Clause 5.4 (Lenders’ participation).

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SECTION 4

REDUCTION, REPAYMENT, PREPAYMENT AND CANCELLATION

7.                                 Repayment and reduction of Loans

(a)                            Subject to Clause 8 (Extension Option), any Loan remaining outstanding on the Termination Date shall be repaid by the Borrower on that date.

(b)                           The Borrower may not reborrow any part of the Facility which is repaid.

8.                                 Extension Option

(a)                            The Termination Date shall be extended by 364 days if the Company gives notice to the Facility Agent not less than 45 days before the then Termination Date and no Event of Default is continuing on the date of such notice nor on the original Termination Date of the Facility. Such notice is irrevocable.

(b)                           There may be only one extension of the Termination Date of the Facility.

9.                                 Prepayment and cancellation

9.1                           Illegality

If it becomes unlawful in any jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund its participation in any Loan:

(a)                                   that Lender shall promptly notify the Facility Agent upon becoming aware of that event;

(b)                                  upon the Facility Agent notifying the Company, the Commitment of that Lender will be immediately cancelled; and

(c)                                   the Borrower shall repay that Lender’s participation in the Loans made to that Borrower on the last day of the Interest Period for each Loan occurring after the Facility Agent has notified the Company or, if earlier, the date specified by the Lender in the notice delivered to the Facility Agent (being no earlier than the last day of any applicable grace period permitted by law).

9.2                           Change of Control

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

(i)                                      the Company shall promptly notify the Facility Agent upon becoming aware of that event and shall offer to prepay all outstanding Loans and to cancel the Facility in full;

(ii)                                   the Facility Agent shall promptly notify the Lenders of receipt of such notice from the Company;

(iii)                                no Borrower may make a Utilisation unless otherwise agreed by the Majority Lenders; and

(iv)

(A)                           if the Majority Lenders accept the offer made pursuant to Clause 9.2(a)(i) and the Facility Agent has given notice of such acceptance to the Company within 30

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days of receipt of the Company’s notice, the Facility shall immediately be cancelled and all outstanding Loans, together with accrued interest, and all other amounts accrued under the Finance Documents shall become immediately due and payable; or

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

(b)                           For the purpose of paragraph (a) above:

(i)                                      “control” means the power (whether by way of ownership of shares, proxy, contract, agent or otherwise) to:

(A)                           cast, or control the casting of, more than 50% of the maximum number of votes that might be cast at a general meeting of the Parent; or;

(B)                             appoint or remove all, or the majority, of the directors or other equivalent officers of the Parent; and

(ii)                                   “acting in concert” has the meaning given to it in the City Code on Takeovers and Mergers.

9.3                           Voluntary cancellation

The Company may, if it gives the Facility Agent not less than 10 days’ (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of $25,000,000 (or its equivalent in any other currency or currencies) or the outstanding balance under the Facility, if less) of the Available Facility at any time during the Availability Period.

9.4                           Mandatory prepayment from Fundraising

(a)                            In this Clause 9.4:

“Net Fundraising Proceeds” means:

(i)                                      the cash or cash equivalent proceeds received by a member of the Group in connection with a member of the Group incurring Financial Indebtedness; and

(ii)                                   the cash or cash equivalent proceeds (including, when received, the cash or cash equivalent proceeds of any deferred consideration, whether by way of adjustment to the subscription price or otherwise) received by the Parent in connection with the issue by it

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of any ordinary or preference shares or other equity instrument issued to any person outside the Group,

(a “Fundraising”) in each case after deducting:

(x)                                         fees and transaction costs properly incurred in connection with that Fundraising; and

(y)                                       Taxes paid or reasonably estimated by the Parent to be payable (as certified by the Parent to the Facility Agent) as a result of that Fundraising.

(b)                           The Parent and the Company shall ensure that at any time prior to the date upon which the Facility is repaid and cancelled in full, an amount equal to any Net Fundraising Proceeds is applied in accordance with Clause 9.5 (Application of Prepayments).

(c)                            Paragraph 9.4(b) above does not apply to:

(i)                                      any Fundraising which is Financial Indebtedness permitted by paragraphs (b)(i),(b)(ii), (b)(iii) or (b)(v) of Clause 23.6 (Restrictions on Financial Indebtedness); and

(ii)                                   any Fundraising which is solely for the purpose of financing or refinancing the working capital requirements of the Group or which arises pursuant to a finance lease transaction; and

(iii)                                any Fundraising where the proceeds of the Fundraising are less than or equal to $100,000,000 (or its equivalent in any other currency or currencies) individually to the extent that the aggregate proceeds of each such Fundraising (the proceeds of which are less than or equal to $100,000,000 (or its equivalent in any other currency or currencies)) do not exceed $300,000,000 (or its equivalent in any other currency or currencies); and

(iv)                               any Fundraising which is to repay Equity Bridge Facility Loans; and

(v)                                  any Fundraising as a result of utilisation of the Acquisition Facilities or the Equity Bridge Facility.

9.5                           Application of Prepayments

(a)                            Within two Business Days after a Receipt Date, the Company shall notify the Facility Agent of the Receipt Date and the amount in the Base Currency (the “US Dollar Proceeds Amount”) equal or equivalent to those Net Fundraising Proceeds.

(b)                           On receipt of that notice by the Facility Agent the Commitments shall be reduced by an aggregate amount equal to the US Dollar Proceeds Amount.

(c)                            The Borrowers shall prepay the Loans on the earlier of ten Business Days after the Receipt Date and the expiry of their Interest Periods current when the Facility Agent receives the relevant notice pursuant to paragraph 9.5(a) above) until the Loans equal to or greater than the US Dollar Proceeds Amount have been prepaid.

(d)                           The Commitments of the Lenders shall be reduced rateably.

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9.6                           Voluntary Prepayment

The Borrower may, if it gives the Facility Agent not less than 10 days (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of any Loan (being a minimum of $25,000,000 (or its equivalent in any other currency or currencies) or the outstanding amount under the Facility, if less).

9.7                           Right of replacement of a single Lender

If:

(a)                                   any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 14.2 (Tax gross-up); or

(b)                                  any Lender claims indemnification from the Company under Clause 14.3 (Tax indemnity) or Clause 15 (Increased costs),

the Company may:

(i)                                      (whilst the circumstance giving rise to the requirement or indemnification continues) arrange for the transfer of the whole (but not part only) of that Lender’s Commitment and participations in the Loans to a new or existing Lender willing to accept that transfer and acceptable to the Company and the remaining Lenders; or

(ii)                                   give the Facility Agent notice of cancellation of the Commitment of that Lender and its intention to procure the repayment of that Lender’s participation in the Utilisations, whereupon the Commitment of that Lender shall immediately be reduced to zero. On the last day of each Interest Period which ends after the Company has given notice under this paragraph (ii) (or, if earlier, the date specified by the Company in that notice), the Borrower shall repay that Lender’s participation in each Loan that is outstanding.

9.8                           Replacement of a Non-Consenting or Non-Funding Lender

(a)                            In this Clause 9.8:

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

(A)                           the Company or the Facility Agent has requested the Lenders to consent to a waiver or amendment of any provision of any Finance Document;

(B)                             the relevant waiver or amendment requires the consent of all the Lenders; and

(C)                             the Majority Lenders have consented to that waiver or amendment.

(ii)                                   “Non-Funding Lender” means:

(A)                           any Lender which has failed to make or participate in any Loan as required by this Agreement; or

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

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(b)                           If:

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

(ii)                                   any Lender becomes a Non-Funding Lender,

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

(c)                            The replacement of a Lender pursuant to this Clause 9.8 shall be subject to the following conditions:

(i)                                      the Company shall have no right to replace the Facility Agent;

(ii)                                   neither the Facility Agent nor any Lender shall have any obligation to the Company to find a replacement Lender;

(iii)                                in the event of a replacement of a Non-Consenting Lender such replacement must take place no later than 180 days after the date the Non-Consenting Lender notified the Company and the Facility Agent of its failure to agree to any requested consent, waiver or amendment to the Finance Documents;

(iv)                               any Lender replaced pursuant to this Clause 9.8 shall not be required to pay or surrender to any other Lender any of the fees received by that Lender pursuant to this Agreement;

(v)                                  payment of any applicable Break Costs;

(vi)                               any fees due under Clause 25.3 (Assignment or transfer fee); and

(vii)                            performance by the Facility Agent of all “know your customer” or other checks relating to any person that it is required to carry out in relation to such replacement, the completion of which the Facility Agent will promptly notify to the Non-Consenting Lender or the Non-Funding Lender, as the case may be, and the replacement Lender.

9.9                           Restrictions

(a)                            Any notice of cancellation or prepayment given by any Party under this Clause 8 shall be irrevocable and, unless a contrary indication appears in this Agreement, 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 this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.

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

(d)                           The Borrower may not reborrow any part of the Facility which is prepaid.

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(e)                            Unless a contrary indication appears in this Agreement, no amount of the Total Commitments cancelled or reduced under this Agreement may be subsequently reinstated.

(f)                              If the Facility Agent receives a notice under this Clause 8 it shall promptly forward a copy of that notice to either the Company or the affected Lender, as appropriate.

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SECTION 5

COSTS OF UTILISATION

10.                           Interest

10.1                     Calculation of interest

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

(a)                                   the relevant Margin;

(b)                                  LIBOR; and

(c)                                   Mandatory Cost, if any.

10.2                     Payment of interest

The Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day of each Interest Period (and, if the Interest Period is longer than six Months, on the dates falling at six monthly intervals after the first day of the Interest Period).

10.3                     Default interest

(a)                            If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is the sum of 1 per cent. and the rate (at the highest Margin under Clause 10.5) which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Facility Agent (acting reasonably). Any interest accruing under this Clause 10.3 shall be immediately payable by the Obligor on demand by the Facility Agent.

(b)                           If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:

(i)                                      the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and

(ii)                                   the rate of interest applying to the overdue amount during that first Interest Period shall be the sum of 1 per cent. and the rate which would have applied if the overdue amount had not become due.

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

10.4                     Notification of rates of interest

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

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10.5                     Margin adjustment

(a)                            Subject to the terms of this Clause 10.5, the Margin shall be the rate specified in relation to the Facility in Clause 1.1 (Definitions).

(b)                           Following the date falling 6 Months after the date of this Agreement, the Margin applicable to the Facility will be adjusted in accordance with paragraphs (c), (d), (e), (f) and (g) below to the percentage rate per annum specified in Column 1 as set out below opposite the long term credit rating assigned to the Parent by ▇▇▇▇▇’▇ Investors’ Services, Inc. (“Moody’s”) and Standard & Poor’s Corporation (“S&P”) specified in Column 2 below (or in the case of a split rating where Clause 10.5(c) below applies):

(c)                            If at any time after the date falling 6 Months after the date of this Agreement, the long term credit rating assigned to the Parent by Moody’s and S&P is split, the Margin shall be calculated on the lower of the two ratings unless the difference is greater than one notch, in which case the Margin shall be calculated on the rating one notch above the lower of the two ratings. 

(d)                           During the period commencing on the date of this Agreement and ending on the date falling 6 Months after the date of this Agreement, the Margin shall be the rate specified in relation to the Facility in the definition of Margin in Clause 1.1 (Definitions).

(e)                            If at any time following the date falling 6 Months after the date of this Agreement:

(i)                                      there is a long-term credit rating assigned to the Parent and the applicable credit rating does not appear in the table in paragraph (b) above; or

(ii)                                   the Parent ceases to be rated by ▇▇▇▇▇’▇ and S&P,

then the Margin will be the rate specified in the proviso to the definition of Margin in Clause 1.1 (Definitions).

(f)                              During any period after the date falling 6 Months after the date of this Agreement in which there is only one long term credit rating assigned to the Parent, the Margin shall be calculated on the basis of that credit rating.

(g)                           Any adjustment pursuant to paragraphs (b), (c), (d), (e) or (f) above shall not apply to any Loan then outstanding until the date which is the first day of the next Interest Period (if any) for that Loan.

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(h)                           Promptly after becoming aware of the same, the Parent shall inform the Facility Agent in writing if any of the circumstances contemplated by paragraphs (b), (c), (d), (e) or (f) above arise.

10.6                     Minimum Interest

By entering into this Agreement, the Parties have assumed that the interest payable at the rates set out in Clause 10 (Interest) is not and will not become subject to Swiss Anticipatory Tax. Therefore, the Borrower acknowledges and agrees that the interest rates set out in and which are calculated in accordance with Clause 10 (Interest) shall constitute minimum interest rates, which, if Swiss Anticipatory Tax should apply, shall be adjusted as follows:

(a)                                   Any payment of interest due by a Swiss Borrower shall be increased to an amount which (after making any deduction of the Non-refundable Portion (as defined below) of Swiss Anticipatory Tax) results in a payment to each Lender entitled to such payment of an amount equal to the payment which would have been due had no deduction of Swiss Anticipatory Tax been required. For this purpose, the Swiss Anticipatory Tax shall be calculated on the full grossed-up interest amount and “Non-refundable Portion” shall mean Swiss Anticipatory Tax at the standard rate from time to time (35 per cent. at the date of this Agreement) unless a tax ruling by the Swiss Federal Tax Administration confirms that the Non-refundable Portion is, pursuant to any double taxation treaties, a specified lower rate in relation to specified Finance Parties in which case such lower rate shall be applied in relation to such Finance Parties.

(b)                                  Each Swiss Borrower shall provide to the Facility Agent the documents required by law and applicable double taxation treaties for the Lenders to prepare claims for the refund of any Swiss Anticipatory Tax so deducted.

(c)                                   If any amount has been paid to a Lender in respect of which Swiss Anticipatory Tax has been paid by a Swiss Borrower and such Lender determines that such amount has been refunded to it by the Swiss tax authorities, it shall promptly reimburse that Swiss Borrower such amount as will leave the Lender in the same position as if there had been no Swiss Anticipatory Tax.

(d)                                  A Swiss Borrower shall not be required to make an increased payment to a Lender pursuant to this Clause 10.5 if the requirement to make a deduction of Swiss Anticipatory Tax arises as a result of a breach of Clause 27.18 (Bank representation by Original Lenders) or Clause 25.2 (Conditions of assignment or transfer) by that Lender or by the Existing Lender (as defined in Clause 25.1 (Assignments and transfers by the Lenders)) which assigned or transferred any of its rights and obligations under the Finance Documents to such Lender.

11.                           Interest Periods

11.1                     Selection of Interest Periods

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

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(b)                           Subject to this Clause 11, the Borrower may select an Interest Period of one, two, three or six Months or any other period agreed between the Company and the Facility Agent (acting on the instructions of all the Lenders participating in the relevant Loan).

(c)                            Prior to determining the interest rate for an Interest Period for a Loan beginning before the Syndication Date, the Facility Agent may shorten that Interest Period to a duration of 1 Month (or such shorter duration as may be desirable to ensure that the Interest Period ends on a date on which rights and obligations under this Agreement are to be novated to persons becoming Parties as a result of the Syndication or the sub-underwriting of the Facilities).

(d)                           Each Selection Notice for a Loan is irrevocable and must be delivered to the Facility Agent by the Company on behalf of the Borrower to which that Loan was made not later than the Specified Time.

(e)                            If the Company fails to deliver a Selection Notice to the Facility Agent in accordance with paragraph (d) above the relevant Interest Period will be one Month.

(f)                              Each Interest Period for a Loan shall start on the Utilisation Date or (if already made) on the last day of its preceding Interest Period.

(g)                           An Interest Period for a Loan shall not extend beyond the Termination Date.

11.2                     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).

11.3                     Consolidation and division of Loans

(a)                            Subject to paragraph (b) below, if two or more Interest Periods:

(i)                                      relate to Loans in the same currency; and

(ii)                                   end on the same date,

those Loans will, unless the Company on behalf of the Borrower specifies to the contrary in the Selection Notice for the next Interest Period, be consolidated into, and treated as, a single Loan on the last day of the Interest Period.

(b)                           Subject to Clause 4.4 (Maximum number of Utilisations) and Clause 5.3 (Currency and amount), if the Company on behalf of the Borrower requests in a Selection Notice that a Loan be divided into two or more Loans, that Loan will, on the last day of its Interest Period, be so divided with Base Currency Amounts specified in that Selection Notice, being an aggregate Base Currency Amount equal to the Base Currency Amount of the Loan immediately before its division.

12.                           Changes to the calculation of interest

12.1                     Absence of quotations

Subject to Clause 12.2 (Market disruption), if LIBOR is to be determined by reference to the Reference Banks but a Reference Bank does not supply a quotation by the Specified Time on

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the Quotation Day, the applicable LIBOR shall be determined on the basis of the quotations of the remaining Reference Banks.

12.2                     Market disruption

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

(i)                                      the Margin;

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

(iii)                                the Mandatory Cost, if any, applicable to that Lender’s participation in the Loan.

(b)                           In this Agreement “Market Disruption Event” means:

(i)                                      at or about noon on the Quotation Day for the relevant Interest Period the Screen Rate is not available and none or only one of the Reference Banks supplies a rate to the Facility Agent to determine LIBOR for the relevant currency and Interest Period; or

(ii)                                   before close of business in London on the Quotation Day for the relevant Interest Period, the Facility Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 35 per cent. of that Loan) that the cost to it of obtaining matching deposits in the Relevant Interbank Market would be in excess of LIBOR.

12.3                     Alternative basis of interest or funding

(a)                            If a Market Disruption Event occurs and the Facility Agent or the Company so requires, the Facility Agent and the Company shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.

(b)                           Any alternative basis agreed pursuant to paragraph (a) above shall, with the prior consent of all the Lenders and the Company, be binding on all Parties.

12.4                     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.

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

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13.                           Fees

13.1                     Commitment fee

(a)                            The Company shall pay to the Facility Agent (for the account of each Lender) a fee in the Base Currency computed at a percentage rate per annum on a day to day basis equal to 30 per cent. of the applicable Margin on that Lender’s Available Commitment for the Availability Period.

(b)                           The accrued commitment fee is payable in the Base Currency on the last day of each successive period of three Months which ends during the Availability Period, on the last day of the Availability Period and, if cancelled in full, on the cancelled amount of the relevant Lender’s Commitment at the time the cancellation is effective.

13.2                     Arrangement and participation fees

The Company shall pay to the Mandated Lead Arrangers arrangement, underwriting and participation fees in the amounts and at the times agreed in a Fee Letter.

13.3                     Agency fee

The Company shall pay to the Facility Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.

13.4                     Extension fee

If an extension is requested pursuant to Clause 8 (Extension Option), the Company shall pay to the Facility Agent (for the account of each Lender) a fee of 0.10 per cent. flat on that Lender’s Commitment. That fee shall be payable on the date the Company gives notice extending the Termination Date in accordance with Clause 8(a).

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SECTION 6

ADDITIONAL PAYMENT OBLIGATIONS

14.                           Tax gross up and indemnities

14.1                     Definitions

In this Agreement:

“Protected Party” means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.

“Tax Credit” means a credit against, relief or remission for, or repayment of any Tax.

“Tax Deduction” means a deduction or withholding for or on account of Tax from a payment under a Finance Document.

“Tax Payment” means an increased payment made by an Obligor to a Finance Party under Clause 14.2 (Tax gross-up) or a payment under Clause 14.3 (Tax indemnity).

Unless a contrary indication appears, in this Clause 14 a reference to “determines” or “determined” means a determination made in the absolute discretion of the person making the determination.

14.2                     Tax gross-up

(a)                            Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.

(b)                           The Company shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Facility Agent accordingly. Similarly, a Lender shall notify the Facility Agent on becoming so aware in respect of a payment payable to that Lender. If the Facility Agent receives such notification from a Lender, it shall notify the Company and that Obligor.

(c)                            Subject to paragraphs (d) and (g) below, if a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

(d)                           A Swiss Obligor is not required to make an increased payment to a Lender under paragraph (c) above for a Tax Deduction in respect of Swiss Anticipatory Tax if and to the extent it is prohibited from doing so by Swiss law.

(e)                            If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

(f)                              Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Facility Agent for

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the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

(g)                           A Swiss Borrower shall not be required to make an increased payment to a Lender under paragraph (c) above if the requirement to make a Tax Deduction in respect of Swiss Anticipatory Tax arises as a result of a breach of Clause 27.18 (Bank representation by Original Lenders) or Clause 25.2 (Conditions of assignment or transfer) by a Lender or by the Existing Lender (as defined in Clause 25.1 (Assignments and transfers by Lenders)) which assigned or transferred any of its rights and obligations under the Finance Documents to such Lender.

14.3                     Tax indemnity

(a)                            Each Obligor shall (within three Business Days of demand by the Facility Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.

(b)                           Paragraph (a) above shall not apply:

(i)                                      with respect to any Tax assessed on a Finance Party:

(A)                           under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or

(B)                             under the law of the jurisdiction in which that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction,

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

(ii)                                   to the extent a loss, liability or cost:

(A)                           is compensated for by an increased payment under Clause 14.2 (Tax gross-up); or

(B)                             would have been compensated for by an increased payment under Clause 14.2 (Tax gross-up) but was not so compensated solely because one of the exclusions in paragraph (g) of Clause 14.2 (Tax gross-up) applied; or

(C)                             arises as a result of a breach of Clause 27.18 (Bank representation by Original Lenders) or of Clause 25.2 (Conditions of assignment or transfer) by a Lender or by the Existing Lender (as defined in Clause 25.1 (Assignments and transfers by the Lenders)) which assigned or transferred any of its rights and obligations under the Finance Documents; or

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

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(c)                            A Protected Party making, or intending to make, a claim under paragraph (a) above shall promptly notify the Facility Agent of the event which will give, or has given, rise to the claim, following which the Facility Agent shall notify the Company.

(d)                           A Protected Party shall, on receiving a payment from an Obligor under this Clause 14.3, notify the Facility Agent.

14.4                     Tax Credit

If an Obligor makes a Tax Payment and the relevant Finance Party determines that:

(a)                                   a Tax Credit is attributable to that Tax Payment; and

(b)                                  that Finance Party has obtained, utilised and retained that Tax Credit,

the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been made by the Obligor.

14.5                     Stamp taxes

The Company shall pay and, within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to all stamp duty, registration, capital duty and other similar Taxes payable in respect of any Finance Document (other than any Transfer Certificate).

14.6                     Value added tax

(a)                            All consideration expressed to be payable under a Finance Document by any Party to a Finance Party shall be deemed to be exclusive of any VAT. If VAT is chargeable on any supply made by any Finance Party to any Party in connection with a Finance Document, that Party shall pay to the Finance Party (in addition to and at the same time as paying the consideration) an amount equal to the amount of the VAT.

(b)                           Where a Finance Document requires any Party to reimburse a Finance Party for any costs or expenses, that Party shall also at the same time pay and indemnify the Finance Party against all VAT incurred by the Finance Party in respect of the costs or expenses.

15.                           Increased costs

15.1                     Increased costs

(a)                            Subject to Clause 15.3 (Exceptions) the Company shall, within three Business Days of a demand by the Facility Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or (ii) compliance with any law or regulation made after the date of this Agreement.

(b)                           In this Agreement, “Increased Costs” means:

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

(ii)                                   an additional or increased cost; or

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(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.

15.2                     Increased cost claims

(a)                            A Finance Party intending to make a claim pursuant to Clause 15.1 (Increased costs) shall notify the Facility Agent of the event giving rise to the claim, following which the Facility Agent shall promptly notify the Company.

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

15.3                     Exceptions

(a)                            Clause 15.1 (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 14.3 (Tax indemnity) (or would have been compensated for under Clause 14.3 (Tax indemnity) but was not so compensated solely because one of the exclusions in paragraph (b) of Clause 14.3 (Tax indemnity) applied);

(iii)                                      compensated for by the payment of the Mandatory Cost; or

(iv)                                     attributable to the failure by the relevant Finance Party or its Affiliates to comply with any law or regulation.

(b)                           In this Clause 15.3, a reference to a “Tax Deduction” has the same meaning given to the term in Clause 14.1 (Definitions).

16.                           Other indemnities

16.1                     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.

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(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.

16.2                     Other indemnities

The Company shall (or shall procure that an Obligor will), within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability incurred by that Finance Party as a result of:

(a)                                   the occurrence of any Event of Default;

(b)                                  a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 29 (Sharing among the Finance Parties);

(c)                                   funding, or making arrangements to fund, its participation in a Utilisation 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 Finance Party alone); or

(d)                                  a Utilisation (or part of a Utilisation) not being prepaid in accordance with a notice of prepayment given by the Borrower or the Company or as required by this Agreement.

16.3                     Indemnity to the Facility Agent

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

(a)                                   investigating any event which it reasonably believes is a Default; or

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

16.4                     Environmental indemnity

Subject to Clause 19.9 (Swiss Limitations), each Obligor shall, within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability:

(a)                                   incurred by that Finance Party as a result of any actual or alleged breach of any Environmental Law by any member of the Group;

(b)                                  which would not have arisen if a Finance Document had not been entered into by that Finance Party; and

(c)                                   which is not caused by that Finance Party’s negligence or wilful misconduct.

16.5                     Acquisition Financing Indemnity

The Company shall, within three Business Days of demand, indemnify each Finance Party, each of their respective Affiliates and each of their respective directors, officers, employees or agents (each an “Indemnified Party”) against any cost, expense, loss or liability (including legal fees) incurred by that Indemnified Party (otherwise than by reason of the gross negligence or wilful misconduct of that Indemnified Party) related to, arising out of or in connection with:

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(a)                                   the Offer;

(b)                                  any Indemnified Party financing or refinancing, or agreeing to finance or refinance, any acquisition of any Shares by Bidco or any person acting in concert with Bidco; or

(c)                                   the use of proceeds of any Loan.

17.                           Mitigation by the Lenders

17.1                     Mitigation

(a)                            Each Finance Party shall, in consultation with the Company, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 9.1 (Illegality), Clause 14 (Tax gross-up and indemnities) or Clause 15 (Increased costs), including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.

(b)                           Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.

17.2                     Limitation of liability

(a)                            The Company shall indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 17.1 (Mitigation).

(b)                           A Finance Party is not obliged to take any steps under Clause 17.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

18.                           Costs and expenses

18.1                     Transaction expenses

The Company shall promptly on demand pay the Facility Agent, the Bookrunners and the Mandated Lead Arrangers the amount of all costs and expenses (including legal fees) incurred by any of them in connection with the negotiation, preparation, printing, execution, notarisation and syndication of:

(a)                                   this Agreement and any other documents referred to in this Agreement; and

(b)                                  any other Finance Documents executed after the date of this Agreement.

18.2                     Amendment costs

If (a) an Obligor requests an amendment, waiver or consent or (b) an amendment is required pursuant to Clause 30.9 (Change of currency), the Company shall, within three Business Days of demand, reimburse the Facility Agent for the amount of all reasonable costs and expenses (including legal fees) incurred by the Facility Agent in responding to, evaluating, negotiating or complying with that request or in connection with that required amendment.

18.3                     Enforcement costs

The Company shall, within three Business Days of demand, pay to each Finance Party the amount of all costs and expenses (including legal fees) incurred by that Finance Party in

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connection with the enforcement of, or the preservation of any rights under, any Finance Document.

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SECTION 7

GUARANTEE

19.                           Guarantee and indemnity

19.1                     Guarantee and indemnity

Subject to Clauses 19.9 (Swiss Limitations), each Guarantor irrevocably and unconditionally jointly and severally:

(a)                                   guarantees to each Finance Party punctual performance by each other Obligor of all that Obligor’s obligations under the Finance Documents;

(b)                                  undertakes with each Finance Party that, whenever an Obligor does not pay any amount when due under or in connection with any Finance Document, that Guarantor shall immediately on demand pay that amount as if it was the principal Obligor; and

(c)                                   indemnifies each Finance Party immediately on demand against any cost, loss or liability suffered by that Finance Party if any obligation guaranteed by it (or which would have been an obligation guaranteed by it if it had not been unenforceable, invalid or illegal) is or becomes unenforceable, invalid or illegal. The amount of the cost, loss or liability shall be equal to the amount which that Finance Party would otherwise have been entitled to recover.

19.2                     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.

19.3                     Reinstatement

If any payment by an Obligor or any discharge given by a Finance Party (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is avoided or reduced as a result of insolvency or any similar event:

(a)                                   the liability of each Obligor shall continue as if the payment, discharge, avoidance or reduction had not occurred; and

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

19.4                     Waiver of defences

The obligations of each Guarantor under this Clause 19 will not be affected by an act, omission, matter or thing which, but for this Clause 19, would reduce, release or prejudice any of its obligations under this Clause 19 (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, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

(d)                                  any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;

(e)                                   any amendment (however fundamental) or replacement of a Finance Document or any other document or security;

(f)                                     any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or

(g)                                  any insolvency or similar proceedings.

19.5                     Immediate recourse

Each Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Guarantor under this Clause 19. This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.

19.6                     Appropriations

Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may:

(a)                                   refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and

(b)                                  hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor’s liability under this Clause 19.

19.7                     Deferral of Guarantors’ rights

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

(a)                                   to be indemnified by an Obligor;

(b)                                  to claim any contribution from any other Guarantor of any Obligor’s obligations under the Finance Documents; and/or

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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.

19.8                     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.

19.9                     Swiss Limitations

(a)                                   If and to the extent that a Swiss Guarantor is liable pursuant to this Clause 19 for obligations other than the obligations of its Subsidiaries (a “Non-group Liability”) such Swiss Guarantor shall (to the extent that such is a requirement of the applicable law in force at the relevant time) only be liable to the Finance Parties for a sum equal to the maximum amount of its profits available for distribution as dividend at any given time (being the balance sheet profits and any reserves made for this purpose, in each case in accordance with art. 675 (2) and art. 671 (1) and (2) no. 3, of the Swiss Code of Obligations) provided that such limitations shall not free the relevant Swiss Obligor from payment obligations hereunder in excess of its distributable profits, but merely postpone the payment date therefor until such times as payment is permitted notwithstanding such limitations.

(b)                                  Subject to the extent required by applicable law in force at the relevant time and any applicable double taxation treaty, any Swiss Guarantor which has a Non-group Liability:

(i)                                  may deduct Swiss Anticipatory Tax at the rate of 35 percent, or such rate as is in force from time to time from any payment in respect of a Non-group Liability;

(ii)                               may pay any such deduction mentioned in paragraph (i) above, to the Swiss Federal Tax Administration; and

(iii)                            shall notify (or procure that the Company notifies) the Facility Agent that such a deduction has been made and provide, in accordance with Clause 14.2 (f) (Tax gross-up) the Facility Agent with evidence that such deduction has been paid to the Swiss Federal Tax Administration; and

to the extent such a deduction is made (in accordance with paragraph (b)(i) of this Clause), shall not be obliged to either gross-up in accordance with Clause 14.2 (Tax gross-up) or indemnify (or otherwise hold harmless) the Finance Parties in relation to any such deduction and payment to the Swiss Federal Tax Administration.

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SECTION 8

REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT

20.                           Representations

Each Obligor makes the representations and warranties set out in this Clause 20 to each Finance Party on the date of this Agreement (in each case in relation to itself and, to the extent expressed to be applicable to them, its Subsidiaries (if any)).

20.1                     Status

(a)                                   It is a limited liability company or corporation, or if the Obligor is organised in Aruba, it is an Aruba exempt company (Aruba Vrijgestelde Vennootschap), duly incorporated and validly existing under the law of its jurisdiction of incorporation.

(b)                                  It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being, and is proposed to be, conducted.

20.2                     Binding obligations

The obligations expressed to be assumed by it in each Finance Document to which it is or will be a party are legal, valid, binding and enforceable, subject to any general principles of law limiting its obligations which are specifically referred to in any legal opinion delivered pursuant to Clause 4 (Conditions of Utilisation) or Clause 26 (Changes to the Obligors).

20.3                     Non-conflict with other obligations

The entry into and performance by it of, and the transactions contemplated by, the Finance Documents do not and will not:

(a)                                   conflict with:

(i)                                  any law or regulation applicable to it or any of its Subsidiaries;

(ii)                               its and each of its Subsidiaries’ constitutional documents; or

(iii)                            any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries’ assets; or

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

20.4                     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.

20.5                     Validity and admissibility in evidence

All Authorisations required or desirable:

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

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(b)                                  to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation,

have been obtained or effected and are in full force and effect.

20.6                     Governing law and enforcement

(a)                            The choice of law specified in each Finance Document to which it is a party as the governing law of that Finance Document will be recognised and enforced in its jurisdiction of incorporation.

(b)                           Subject to the Reservations, any judgment obtained in relation to a Finance Document to which it is a party in the jurisdiction of the governing law of that Finance Document will be recognised and enforced in that Obligor’s jurisdiction of incorporation.

20.7                     No capital duty, filing or stamp taxes

Under the law of its jurisdiction of incorporation or residence for tax purposes it is not necessary that the Finance Documents to which it is a party be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any capital duty, stamp, registration or similar tax be paid on or in relation to the Finance Documents to which it is a party or the transactions contemplated by the Finance Documents to which it is a party (save in each case for the payment of Swiss stamp duty or Swiss Anticipatory Tax that may arise out of a breach of Clause 27.18 (Bank representation by Original Lenders) or Clause 25.2 (Conditions of assignment or transfer)).

20.8                     No default

(a)                            No Event of Default is continuing or can reasonably be expected to result from the making of any Utilisation.

(b)                           No other event or circumstance is outstanding which constitutes (or which would, with the expiry of a grace period, the giving of notice or the making of any determination under the relevant document or any combination of the foregoing, constitute) a default under any other agreement or instrument which is binding on it or any of its Subsidiaries or to which its (or its Subsidiaries’) assets are subject which could reasonably be expected to have a Material Adverse Effect.

20.9                     Information Memorandum

(a)                            The factual information in the Information Memorandum (other than factual information relating to the Target and its Affiliates) was true, complete and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated.

(b)                           The financial projections in the Information Memorandum, have been prepared on the basis of recent historical information and on the basis of reasonable assumptions.

(c)                            Any expressions of opinion or intention in the Information Memorandum, were made after due and careful consideration and were believed to be reasonable.

(d)                           Nothing has occurred since the date of the Information Memorandum or been omitted from the Information Memorandum and no information has been given or withheld by any member of the Group to any Finance Party that results in any of the information (other than factual information

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relating to the Target and its Affiliates) contained in the Information Memorandum being untrue or misleading in any material respect.

20.10               Financial statements

(a)                            The Original Financial Statements were prepared in accordance with IFRS consistently applied.

(b)                           The Original Financial Statements fairly represent its financial condition and operations as at the end of and for the relevant financial year.

(c)                            There has been no material adverse change in its business or financial condition since the date to which the Original Financial Statements were drawn up.

20.11               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).

20.12               No proceedings pending or threatened

(a)                            No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency (including any arising from or relating to Environmental Law or any Environmental Licence) which are reasonably likely to be adversely determined and which, if adversely determined, can reasonably be expected to have a Material Adverse Effect have been started or (to the best of its knowledge) threatened against it or any of its Subsidiaries, nor are there any circumstances likely to give rise to any such litigation, arbitration or administrative proceedings.

(b)                           No labour disputes which can reasonably be expected to have a Material Adverse Effect are current or (to the best of its knowledge) threatened, nor are there any circumstances likely to give rise to any such disputes.

20.13               Assets

It and each of its Subsidiaries has good title to, or valid leases or licences of or is otherwise entitled to use, all material assets required by it to carry on its business as it is being, or is proposed to be, conducted.

20.14               Environmental Laws and Licences

It and each of its Subsidiaries has:

(a)                                   complied with all Environmental Laws to which it is subject;

(b)                                  all Environmental Licences required in connection with its business;

(c)                                   complied with the terms of those Environmental Licences; and

(d)                                  complied with the terms of the Environmental Policy,

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

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20.15               Environmental releases

No:

(a)                                   property currently or previously owned, leased, occupied or controlled by it or any of its Subsidiaries (including any offsite waste management or disposal location utilised by it or any of its Subsidiaries) is contaminated with any Hazardous Substance; and

(b)                                  discharge, release, leaching, migration or escape of any Hazardous Substance into the Environment has occurred or is occurring on, under or from that property,

in each case in circumstances where this would be reasonably likely to have a Material Adverse Effect.

20.16               Group Structure

(a)                            The Group Structure Chart shows:

(i)                                      each member of the Group and the Target and any person in which any member of the Group has an interest in the issued share capital or equivalent ownership interest (and the percentage of the total share capital or equivalent ownership interest held, whether legally or beneficially, by that member), in each case both as at the date of this Agreement and as it will be immediately after the Unconditional Date; and

(ii)                                   the status of each person shown in it which is not a limited liability company or corporation.

(b)                           Each Obligor (other than the Parent, Asturiana de Zinc, S.A. or any direct or indirect Subsidiary of Asturiana de Zinc, S.A.)  is directly or indirectly a wholly-owned Subsidiary of the Parent.

(c)                            No more than 1 per cent. of the shares of Asturiana de Zinc, S.A. are directly or indirectly owned by any person or persons other than the Company.

20.17               No Financial Indebtedness or Security

(a)                            Neither it nor any of its Subsidiaries has any Financial Indebtedness other than as permitted by Clause 23.6 (Restrictions on Financial Indebtedness).

(b)                           No Security exists over all or any of its (or any of its Subsidiaries’) assets other than as permitted by paragraph (d) of Clause 23.4 (Negative pledge).

20.18               Solvency

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

(i)                                      (in the case of a company incorporated in England or Wales) Section 123(1)(e) or 123(2) of the Insolvency ▇▇▇ ▇▇▇▇; or

(ii)                                   (in the case of any other company) the laws of the jurisdiction in which it is incorporated,

nor, in any such case, will it become so in consequence of entering into any Finance Document and/or performing any transaction contemplated by any Finance Document.

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(b)                           No Obligor has taken any corporate action nor have any other steps been taken or legal proceedings been started or threatened for its winding-up, dissolution, liquidation, administration, bankruptcy, suspension of payments or for the appointment of a receiver, administrator, administrative receiver, trustee or similar officer of it or of any or all of its assets or revenues.

20.19               Taxes

(a)                            Each member of the Group has paid all Taxes required to be paid by it when due (or, if later, before any interest, fines or penalties are imposed or any Security could be imposed ranking in priority to the claims of any Finance Party).

(b)                           Paragraph (a) above does not apply to any Taxes:

(i)                                      being contested by it in good faith and in accordance with the relevant procedures;

(ii)                                   for which adequate reserves are being maintained in accordance with GAAP; and

(iii)                                where payment can be lawfully withheld and will not result in the imposition of any interest, fines or penalty or any Security, as described in paragraph (a) above.

20.20               Repetition

(a)                            The Repeating Representations (and, in the case of sub-paragraph (ii) below, the representations and warranties set out in Clause 20.5 (Validity and admissibility in evidence) and Clause 20.7 (No capital duty, filing or stamp taxes)) are deemed to be made by each Obligor (in relation to itself and, to the extent expressed to be applicable to them, its Subsidiaries (if any)) by reference to the facts and circumstances then existing on:

(i)                                      the date of each Utilisation Request, the first day of each Interest Period; and

(ii)                                   in the case of an Additional Guarantor, the day on which the company becomes (or it is proposed that the company becomes) an Additional Guarantor.

(b)                           The representations and warranties set out in Clause 20.9 (Information Memorandum) are deemed to be made by the Company and the Parent by reference to the facts and circumstances then existing on:

(i)                                      the date of issue of the Information Memorandum; and

(ii)                                   the date of the Syndication Agreement.

21.                           Information Undertakings

The undertakings in this Clause 21 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.

21.1                     Annual financial statements

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

(a)                                   the Parent’s audited consolidated financial statements for that financial year; and

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(b)                                  the audited financial statements of each Obligor (other than Xstrata Coal Pty Limited or any Obligor incorporated in Australia, for so long as it is excluded from preparing financial statements in Australia through compliance with any order made by ASIC under Section 341 of the Corporations ▇▇▇ ▇▇▇▇ of Australia) for that financial year.

21.2                     Half-yearly financial statements

The Company shall supply to the Facility Agent in sufficient copies for all the Lenders as soon as the same become available, but in any event within 90 days after the end of each Accounting Half-year ending on 30 June of the financial year of the Company, the Parent’s consolidated financial statements for that Accounting Half-year.

21.3                     Content of half-yearly financial statements

Each set of half-yearly financial statements delivered pursuant to Clause 21.2 (Half-yearly financial statements) above shall include:

(i)                                      a consolidated cash flow statement and profit and loss account for the relevant Accounting Half-year and for the financial year to date; and

(ii)                                   a consolidated balance sheet as at the end of the relevant Accounting Half-year.

21.4                     Compliance Certificate

(a)                            The Company shall supply to the Facility Agent, with each set of financial statements delivered pursuant to paragraph (a) of Clause 21.1 (Annual financial statements) or Clause 21.2 (Half-yearly financial statements), a Compliance Certificate which shall:

(i)                                      set out (in reasonable detail) computations as to compliance with Clause 22 (Financial covenants) as at the date at which or, as the case may be, in respect of the period for which those financial statements were drawn up;

(ii)                                   confirm that no Default is continuing (or if a Default is continuing, specify the Default and the steps being taken to remedy it); and

(iii)                                in the case of a Compliance Certificate provided with financial statements delivered pursuant to paragraph (a) of Clause 21.1 (Annual financial statements) only, set out the Material Subsidiaries of the Group.

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

21.5                     Requirements as to financial statements

(a)                            Each set of financial statements delivered by the Company pursuant to Clause 21.1 (Annual financial statements) or Clause 21.2 (Half-yearly financial statements) shall be certified by an officer of the relevant company as fairly representing its (or, as the case may be, its consolidated) financial condition and operations as at the end of and for the period in relation to which those financial statements were drawn up.

(b)                           The Company shall procure that each set of financial statements of the Parent delivered pursuant to Clause 21.1 (Annual financial statements) or Clause 21.2 (Half-yearly financial statements) is prepared using GAAP, unless, in relation to any set of financial statements, it

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notifies the Facility Agent that there has been a change in GAAP and the auditors of the Parent deliver to the Facility Agent:

(i)                                      a description of any change necessary for the relevant financial statements to reflect GAAP applicable to the previous consolidated financial statements of the Parent delivered to the Facility Agent in accordance with Clause 21.1 or 21.2, as the case may be; and

(ii)                                   sufficient information, in form and substance as may be reasonably required by the Facility Agent, to enable the Lenders to determine whether Clause 22 (Financial Covenants) has been complied with, to determine any other relevant matter and/or to make an accurate comparison between the financial position indicated in those financial statements and the previous consolidated financial statements of the Parent delivered to the Facility Agent in accordance with Clause 21.1 or 21.2, as the case may be.

(c)                            Any reference in this Agreement to those financial statements shall be construed as a reference to those financial statements as adjusted to reflect GAAP applicable to the previous consolidated financial statements of the Parent delivered to the Facility Agent in accordance with Clause 21.1 or 21.2, as the case may be.

21.6                     Information: miscellaneous

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

(a)                                   all documents dispatched by the Parent to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched;

(b)                                  promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against any member of the Group, and which are reasonably likely to be adversely determined and can reasonably be expected, if adversely determined, to have a Material Adverse Effect;

(c)                                   promptly upon becoming aware of them, the details of any claim, notice or other communication received by it in respect of any actual or alleged breach of or liability under Environmental Law which, if substantiated, would be reasonably likely to have a Material Adverse Effect;

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

21.7                     Notification of default

(a)                            Each Obligor shall notify the Facility Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided to the Facility Agent by another Obligor).

(b)                           Promptly upon a request by the Facility Agent, the Company shall supply to the Facility Agent a certificate signed by two of its directors or senior officers on its behalf certifying that no Default is

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continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).

21.8                     Offer-related documents

(a)                            The Company shall promptly supply to the Facility Agent sufficient copies for the Lenders of the Offer Document and any other document which contains the material terms or conditions of the Offer or amends, extends or waives the terms or conditions of the Offer.

(b)                           The Company shall promptly supply to each Mandated Lead Arranger such explanation or details as a Mandated Lead Arranger may reasonably request of any item in an Offer Document (such explanation or details being to the best of its knowledge and belief so far as any item relates to the Target and/or any of its Subsidiaries).

(c)                            The Company shall promptly supply to the Mandated Lead Arrangers (in sufficient copies for the Lenders, if the Mandated Lead Arrangers so request) such further information relating to the Offer as the Mandated Lead Arranger may reasonably request.

21.9                     “Know your customer” checks

(a)                            If:

(i)                                      the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;

(ii)                                   any change in the status of an Obligor after the date of this Agreement; or

(iii)                                a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,

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

(b)                           Each Lender shall promptly upon the request of the Facility Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself) in order for the Facility Agent to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

(c)                            The Company shall, by not less than 10 Business Days’ prior written notice to the Facility Agent, notify the Facility Agent (which shall promptly notify the Lenders) of its intention to request that

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one of its Subsidiaries becomes an Additional Guarantor pursuant to Clause 26 (Changes to the Obligors).

(d)                           Following the giving of any notice pursuant to paragraph (c) above, if the accession of such Additional Guarantor obliges the Facility Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall promptly upon the request of the Facility Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective new Lender) in order for the Facility Agent or such Lender or any prospective new Lender to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the accession of such Subsidiary to this Agreement as an Additional Guarantor.

22.                           Financial Covenants

The Parent shall ensure that:

(a)                                   Consolidated Borrowings will not at any time exceed 50 per cent. of Total Capitalisation.

(b)                                  the ratio of Consolidated Borrowings to EBITDA for any Relevant Period will not exceed 3.00:1.00; and

(c)                                   the ratio of EBITDA to Interest Expense in respect of any Relevant Period will not be less than 5.00:1.00.

23.                           General Undertakings

The undertakings in this Clause 23 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.

23.1                     Authorisations

Each Obligor shall (and the Company shall ensure that each other member of the Group will) promptly obtain, comply with and do all that is necessary to maintain in full force and effect (and supply certified copies to the Facility Agent of) any Authorisation required under any applicable law or regulation:

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

(b)                                  to ensure the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of any Finance Document to which it is a party; and

(c)                                   to enable it to carry on its business as it is being conducted from time to time if failure to obtain, comply with or maintain any such Authorisation could reasonably be expected to have a Material Adverse Effect.

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23.2                     Compliance with laws

Each Obligor shall (and the Company shall ensure that each other member of the Group will) comply in all respects with all laws to which it is subject, if failure so to comply would be reasonably likely to have a Material Adverse Effect.

23.3                     Pari passu

Each Obligor shall ensure that its obligations, (whether actual or contingent), under the Finance Documents rank at all times at least pari passu in right of priority and payment with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by laws applying to companies generally.

23.4                     Negative pledge

(a)                            No Obligor shall (and the Company shall ensure that no other member of the Group will) create or permit to subsist any Security over any of its assets.

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

(i)                                      sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Group;

(ii)                                   enter into or allow to subsist any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or

(iii)                                enter into any other preferential arrangement having a similar effect,

in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.

(c)                            No Obligor shall (and the Company shall ensure that no other member of the Group will) sell, transfer or otherwise dispose of any of its receivables on recourse terms.

(d)                           Paragraphs (a) and (b) above do not apply to:

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

(ii)                                   any Security over goods and documents of title arising in the ordinary course of trading or retention of title arrangements and rights of set-off arising in the ordinary course of trading with suppliers of goods to any member of the Group;

(iii)                                any Security existing and disclosed in writing to the Facility Agent prior to the date of this Agreement provided that the amount thereby secured, as so disclosed, is not thereafter increased or its maturity extended;

(iv)                               any Security over or affecting any asset acquired by a member of the Group after the date of this Agreement, provided that:

(A)                           the Security was not created in contemplation of that acquisition;

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(B)                             the amount thereby secured has not been increased in contemplation of, or since the date of, that acquisition; and

(C)                             unless the Security is in favour of a government or utility supplier and was required to be given as a condition of the person who created the Security being permitted to carry on business or being provided with utility supplies, it is removed or discharged within six months of the date of acquisition;

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

(A)                           the Security was not created in contemplation of the acquisition of that company;

(B)                             the amount thereby secured has not been increased in contemplation of, or since the date of, that acquisition; and

(C)                             unless the Security is in favour of a government or utility supplier and was required to be given as a condition of the person who created the Security being permitted to carry on business or being provided with utility supplies, it is removed or discharged within six months of that company becoming a member of the Group;

(vi)                               any Security created over any assets of, shares in, or debts or other obligations of a Project Company securing Project Finance Debt of that Project Company;

(vii)                            any Security in the form of cross charges over joint venture related assets granted to other joint venturers and/or the manager of the joint venture to secure obligations owed to any one or more of the other joint venturers and/or the manager under the joint venture or related agreement;

(viii)                         any Security securing indebtedness the principal amount of which (when aggregated with (A) the principal amount of any other indebtedness which has the benefit of Security given by any member of the Group, other than any permitted under paragraphs (i) to (vii) above and (B) any other Financial Indebtedness permitted under Clause 23.6(b)(vi)), does not exceed 5 per cent. of Total Assets at that time (or its equivalent in any other currency or currencies); or

(ix)                                 any Security approved by the Majority Lenders.

23.5                     Disposals

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

(b)                           Paragraph (a) above does not apply to any disposal:

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

(ii)                                   of cash:

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(A)                           for the acquisition on arm’s length terms of assets permitted or required under this Agreement; or

(B)                             for any other purpose not prohibited under this Agreement;

(iii)                                constituting the creation of any Security permitted under paragraph (d) of Clause 23.4 (Negative pledge);

(iv)                               of an obsolete or redundant asset which is no longer required for the purposes of the business;

(v)                                  of assets in exchange for other assets comparable or superior as to type, value and quality and location;

(vi)                               by a member of the Group to another member of the Group which is a wholly owned Subsidiary of the Parent;

(vii)                            (where the interest of the Company in the transferee is no less than its interest in the transferor) by a member of the Group to a member of the Group which is not a wholly owned Subsidiary of the Parent;

(viii)                         where the market value (when aggregated with the market value of any other sale, lease, transfer or other disposal, other than any permitted under paragraphs (i) to (vii) above) does not exceed 10 per cent. of Total Assets in any financial year of the Company; or

(ix)                                 approved by the Majority Lenders; or

(x)                                    in respect of a Subsidiary which becomes a member of the Group after the date of this Agreement, of assets owned by that Subsidiary at the time of its acquisition during the 12 month period following the acquisition of that Subsidiary,

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

(c)                            Nothing in paragraphs (b)(i) to (v), (vii), (viii) or (ix) permits the disposal by any member of the Group of any shares in a Guarantor.

(d)                           For the purposes of Clause 23.5(b)(vi), Asturiana de Zinc, S.A. will be considered a wholly owned Subsidiary of the Parent provided the Parent directly or indirectly owns not less than 99.98 per cent. of the shares of Asturiana de Zinc, S.A.

23.6                     Restrictions on Financial Indebtedness

(a)                            The Company shall ensure that no other member of the Group (other than an Obligor) will incur (or agree to incur) or have outstanding any Financial Indebtedness.

(b)                           Paragraph (a) above does not apply to:

(i)                                      Financial Indebtedness to another member of the Group;

(ii)                                   Non Recourse Project Finance Debt;

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(iii)                                Project Finance Debt (other than Non Recourse Project Finance Debt) the aggregate outstanding principal amount of which does not exceed $1,000,000,000 (or its equivalent in any other currency or currencies);

(iv)                               Financial Indebtedness in respect of bonds issued by any financing vehicle which is a direct Subsidiary of the Parent or the Company but not a Subsidiary of any other member of the Group provided such financing vehicle does not have any Subsidiaries;

(v)                                  Financial Indebtedness under Permitted Indemnities;

(vi)                               in respect of a Subsidiary which becomes a member of the Group after the date of this Agreement, Financial Indebtedness of that Subsidiary at the time of its acquisition for a period of 6 Months following its acquisition other than any such Financial Indebtedness which the Company does not (in good faith) intend to repay within such 6 Month period; or

(vii)                            Financial Indebtedness not falling within sub-paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which (when taken together with any other Financial Indebtedness secured under Clause 23.4(d)(viii)) does not exceed 7.5 per cent. of Total Assets (or its equivalent in any other currency or currencies).

(c)                            The Company and each Swiss Obligor shall ensure that no Swiss Borrower has interest bearing Financial Indebtedness payable (whether directly or indirectly) to:

(i)                                      more than 10 Non-Banks in respect of this Facility Agreement; or

(ii)                                   more than 20 Non-Banks (including, for the avoidance of doubt, any lenders which are members of the Group) in aggregate for each Swiss Borrower.

23.7                     Change of business

The Company shall procure that no substantial part of the business of the Group is a business other than the mining and minerals business.

23.8                     Merger

No Obligor shall enter into any amalgamation, demerger, merger or corporate reconstruction without the prior written consent of the Facility Agent provided that no such consent shall be required for a Subsequent Acquisition Transaction.

23.9                     Insurance

Each Obligor shall (and the Company shall ensure that each other member of the Group will) maintain insurances on and in relation to its business and assets with reputable underwriters or insurance companies:

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

(ii)                                   against those risks, and to the extent, required by applicable law or by contract.

23.10               Environmental undertakings

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

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(a)                                   comply with all Environmental Laws to which it is subject;

(b)                                  comply with the Environmental Policy;

(c)                                   obtain all Environmental Licences required in connection with its business; and

(d)                                  comply with the terms of all those Environmental Licences,

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

23.11               Taxes

(a)                            Each Obligor shall (and the Company shall ensure that each other member of the Group will) pay all Taxes required to be paid by it when due (or, if later, before any interest, fines or penalties are imposed or any Security could be imposed ranking in priority to the claims of any Finance Party).

(b)                           Paragraph (a) above does not apply to any Taxes:

(i)                                      being contested by the relevant member of the Group in good faith and in accordance with the relevant procedures;

(ii)                                   for which adequate reserves are being maintained in accordance with GAAP; and

(iii)                                where payment can be lawfully withheld and will not result in the imposition of any interest, fines or penalties or Security as described in paragraph (a) above.

23.12               The Offer

(a)                            The Company shall ensure, and shall procure that Bidco shall ensure, that the Offer Document and any other documents relating to the Offer furnished to the Facility Agent contain all the material terms and conditions of the Offer.

(b)                           The Company shall ensure, and shall procure that Bidco shall ensure, that the Offer is only amended, extended, revised or waived in accordance with the terms of this Agreement.

(c)                            The Company shall not, and shall procure that Bidco shall not, without the prior written consent of the Mandated Lead Arrangers and the Facility Agent (acting on the instructions of the Majority Lenders) waive, amend, revise, withdraw, agree, declare or accept or treat as satisfied or decide not to enforce, in whole or in part, any term or condition of the Offer save for those corresponding to those set out in paragraphs (b), (c) (save in respect of the Investment Canada Act), (d)(iv) and (e)-(k) of the section of the Offer Document entitled “Offer”.

(d)                           If, at any time, the Company is aware that (i) any act, action, suit or proceeding has been threatened or taken before any domestic or foreign court, tribunal or governmental agency or other regulatory authority or administrative agency or commission by an elected or appointed public official or private person in Canada or elsewhere whether or not having the force of law, or (ii) any law, regulation or policy has been proposed, enacted, promulgated or applied which, in either case, could have any of the effects described in paragraph (A), (B), or (C) of Condition (e), then:

(i)                                      the Company shall notify the Mandated Lead Arrangers; and

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(ii)                                   the Company shall not determine that the condition of the section of the Offer corresponding to the condition set out in paragraph (e) of the section of the Offer Document entitled “Offer” has been satisfied without the prior consent of the Mandated Lead Arrangers;

(e)                            If, at any time, the Company is aware that there exists or has occurred any change (or any condition, event or development involving a prospective change) in the business, operations (including results of operations) assets, capitalisation, properties, condition (financial or otherwise), prospects, licences, permits, rights, privileges or liabilities, whether contractual or otherwise, of the Target or any of its subsidiaries which could, individually or in the aggregate have a Material Adverse Effect (as defined in the Offer Document) on the Target or, if the transaction contemplated by the Offer is consummated, a Material Adverse Effect on Bidco or the Parent, then:

(i)                                      the Company shall notify the Mandated Lead Arrangers;

(ii)                                   the Company shall not determine that the condition of the Offer corresponding to the condition set out in paragraph (j) of the section of the Offer Document entitled “Offer” has been satisfied without the prior consent of the Mandated Lead Arrangers.

(f)                              The Company shall ensure that no action is taken by or on behalf of any member of the Group or any Person acting in concert with any member of the Group which increases or would or may require an increase in the offer price for the Shares, or the maximum total consideration payable for all the Shares to which the Offer relates, above the level agreed between the Company and the Mandated Lead Arrangers and the Facility Agent (acting on the instructions of the Majority Lenders) from time to time.

(g)                           The Company shall comply with all applicable securities laws in Canada and the United States and all other applicable laws and regulations in all respects material in the context of the Offer.

(h)                           The Company shall keep the Mandated Lead Arrangers informed and consult with them as to:

(i)                                      the terms and conditions of any material assurance or undertaking proposed to be given by or on behalf of any member of the Group (or, so far as the Company is aware, the Target or any of its Subsidiaries) to any person for the purpose of obtaining any Authorisation necessary or desirable in connection with the Offer; and

(ii)                                   any material terms or conditions proposed in connection with any Authorisation necessary or desirable in connection with the Offer.

(i)                               If the Facility Agent (acting on the instructions of the Majority Lenders) or a Mandated Lead Arranger state that, in their opinion, any proposed assurance, undertaking, terms or conditions referred to in paragraph (f) above (or compliance with any of them) might reasonably be expected to have a Material Adverse Effect, the Parent will procure that Bidco shall not waive the relevant condition of the Offer or treat it as satisfied.

(j)                               If any member of the Group becomes aware (whether through notice from any Finance Party or otherwise) of a circumstance or event which is or could reasonably be construed to be covered by any condition of the Offer (other than those contained in paragraphs (b), (c) (save in respect

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of the Investment Canada Act), (d)(iv) and (e)-(k) of the section of the Offer Document entitled “Offer”) which, if not waived, would entitle Bidco (with the consent of any other party, if needed) to lapse the Offer, the Company shall promptly notify the Facility Agent and the Mandated Lead Arrangers.

(k)                            If a circumstance or event referred to in paragraph (h) above occurs and the Facility Agent (acting on the instructions of the Majority Lenders) or a Mandated Lead Arranger state that, in their opinion, that circumstance or event might reasonably be expected to have a Material Adverse Effect, Bidco shall not waive that condition or treat it as satisfied.

23.13               Compulsory Acquisition Procedures or Subsequent Acquisition Transaction

Either:

(a)                                   if Bidco becomes entitled to initiate the Compulsory Acquisition Procedures in relation to the Shares to which the Offer relates:

(i)                                  it shall initiate those procedures promptly (and in any event within 14 days after becoming entitled to do so); and

(ii)                               it shall use all reasonable endeavours to acquire 100 per cent. of the Shares to which the Offer relates within 7 weeks after initiating those procedures; or

(b)                                  if Bidco either (x) does not become entitled to initiate the Compulsory Acquisition Procedures in relation to the Shares to which the Offer relates on the date that is 120 days after the date of the Offer but is capable of implementing a Subsequent Acquisition Transaction on or before such date or (y) becomes entitled to initiate the Compulsory Acquisition Procedures in relation to the Shares to which the Offer relates but elects not to do so:

(i)                                  it shall initiate a Subsequent Acquisition Transaction promptly (and in any event within 14 days of the date that is 120 days after the date of the Offer); and

(ii)                               it shall use all reasonable endeavours to acquire 100 per cent. of the Shares to which the Offer relates within 90 days after initiating the Subsequent Acquisition Transaction.

23.14               Target Guarantee

In the event that the Target does not merge with Bidco during the Clean Up Period, subject to applicable law, the Company shall use its best endeavours to procure that no later than expiry of the Clean Up Period, the Facility Agent has received all of the documents and other evidence listed in Part IV of Schedule 1 (Conditions precedent to be delivered by an Additional Guarantor) in form and substance satisfactory to the Facility Agent in respect of the Target.

23.15               Offer Termination Date

The Company shall promptly give notice to the Facility Agent that the Offer Termination Date has occurred.

24.                           Events of Default

Each of the events or circumstances set out in Clause 24 is an Event of Default.

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24.1                     Non-payment

An Obligor does not pay on the due date any amount payable pursuant to a Finance Document at the place and in the currency in which it is expressed to be payable unless:

(a)                                   its failure to pay is caused by administrative or technical error; and

(b)                                  payment is made within two Business Days of its due date.

24.2                     Financial covenants

Any requirement of Clause 22 (Financial covenants) is not satisfied.

24.3                     Other obligations

(a)                            An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 24.1 (Non-payment) or Clause 24.2 (Financial covenants)).

(b)                           No Event of Default under paragraph (a) above in relation to Clause 23.1 (Authorisations) will occur if the failure to comply is capable of remedy and is remedied within 15 days of the Facility Agent giving notice to the Company or the Company becoming aware of the failure to comply.

24.4                     Misrepresentation

Any representation or statement made or deemed to be made by any person other than a Finance Party in the Finance Documents or any other document delivered by or on behalf of any Obligor under or in connection with any Finance Document is or proves to have been incorrect or misleading in any material respect when made or deemed to be made.

24.5                     Cross default

(a)                            Any Financial Indebtedness of any member of the Group (other than Non Recourse Project Finance Debt) is not paid when due nor within any originally applicable grace period.

(b)                           Any Financial Indebtedness of any member of the Group (other than Non Recourse Project Finance Debt) is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described) under the document relating to that Financial Indebtedness.

(c)                            Any commitment for any Financial Indebtedness of any member of the Group (other than Non Recourse Project Finance Debt) is cancelled or suspended by a creditor of any member of the Group as a result of an event of default (however described) under the document relating to that Financial Indebtedness.

(d)                           Any creditor of any member of the Group becomes entitled to declare any Financial Indebtedness of any member of the Group (other than Non Recourse Project Finance Debt) due and payable prior to its specified maturity as a result of an event of default (however described) under the document relating to that Financial Indebtedness.

(e)                            No Event of Default will occur under this Clause 24.5 if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (a) to (d) above is less than $50,000,000 (or its equivalent in any other currency or currencies).

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24.6                     Insolvency

(a)                            An Obligor or a Material Subsidiary (other than a Non Recourse Project Company) is or is deemed by law unable or admits inability to pay its debts as they fall due, suspends, or threatens to suspend, making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.

(b)                           The value of the assets of an Obligor or a Material Subsidiary (other than a Non Recourse Project Company) is less than its liabilities (taking into account contingent and prospective liabilities).

(c)                            A moratorium is declared in respect of any indebtedness of an Obligor or a Material Subsidiary (other than a Non Recourse Project Company).

(d)                           The net equity of a Swiss Obligor is less than one half of its share capital and legal reserves and such shortfall is not cured in a lasting manner within sixty (60) days of (i) such Swiss Obligor’s board of directors becoming aware or (ii) the date on which they should have become aware, of such deficiency.

(e)                            In the case of any Material Subsidiary incorporated in South Africa:

(i)                                      that Material Subsidiary commits an act of insolvency as described in section 8 of the South African Insolvency Act, 1936; or

(ii)                                   that Material Subsidiary is placed under judicial management.

24.7                     Insolvency proceedings

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

(a)                                   the declaration of insolvency, the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Obligor or Material Subsidiary (other than a solvent liquidation or reorganisation of any Material Subsidiary which is not an Obligor);

(b)                                  a composition, assignment, compromise or arrangement with any creditor of any Obligor or Material Subsidiary;

(c)                                   the appointment of a liquidator, receiver, administrator, administrative receiver, compulsory manager or other similar officer in respect of any Obligor or Material Subsidiary or any of its assets;

(d)                                  the enforcement of any Security over any assets of any Obligor or Material Subsidiary; or

(e)                                   the postponement of the declaration of bankruptcy in accordance with the art.725a of the Swiss Code of Obligations in relation to a Swiss Obligor,

or any analogous procedure or step is taken in respect of any Obligor or Material Subsidiary in any jurisdiction.

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24.8                     Creditors’ process

Any expropriation, attachment, sequestration, distress or execution affects any asset or assets of any Obligor or Material Subsidiary and is not discharged within 28 days.

24.9                     Ownership

(a)                            Any Obligor (other than the Parent and the Company) is not or ceases to be a wholly-owned Subsidiary of the Company.

(b)                           Less than 99.98 per cent. of the shares of Asturiana de Zinc, S.A. are owned directly or indirectly by the Parent.

(c)                            The Company is not or ceases to be a wholly-owned Subsidiary of the Parent.

(d)                           Save pursuant to a Subsequent Acquisition Transaction, all the Shares acquired by Bidco or a Subsidiary of an Obligor do not remain held by an Obligor or a member of the Group wholly owned by an Obligor.

24.10               Unlawfulness

It is or becomes unlawful for any person other than a Finance Party to perform any of its obligations under the Finance Documents.

24.11               Repudiation

Any person other than a Finance Party repudiates a Finance Document or evidences an intention to repudiate a Finance Document.

24.12               Guarantees

Any guarantee or indemnity in or any subordination effected under any Finance Document is not in full force and effect.

24.13               Litigation

Any litigation, arbitration or administrative proceedings are commenced or threatened by or against any member of the Group or its respective assets in each case which are reasonably likely to be adversely determined against that member of the Group and, if so determined, can reasonably be expected to have a Material Adverse Effect.

24.14               Material adverse change

Any event or circumstance occurs which has or could reasonably be expected to have a Material Adverse Effect.

24.15               Acceleration

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

(a)                                   cancel the Total Commitments whereupon they shall immediately be cancelled;

(b)                                  declare that all or part of the Utilisations, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable; and/or

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(c)                                   declare that all or part of the Utilisations be payable on demand, whereupon they shall immediately become payable on demand by the Facility Agent on the instructions of the Majority Lenders.

24.16               Clean-up Period

Until the date after the Clean-up Period ends, the Events of Default set out in Clause 24.3 (Other Obligations) (in so far as they relate to paragraph (a) of Clause 20.17 (No Financial Indebtedness or Security) and Clause 23.6 (Restrictions on Financial Indebtedness)) and Clause 24.4 (Misrepresentation) (in so far as it relates to paragraph (a) of Clause 20.17 (No Financial Indebtedness or Security) shall not apply to or in respect of any event or circumstance (i) with respect to the Target, any of the Target’s Subsidiaries, or (ii) which arises with respect to Bidco as a result of its merger with the Target pursuant to a Subsequent Acquisition Transaction, which exists on, or is a direct result of the occurrence of, the Unconditional Date (except that this Clause 24.16 shall not apply to any event or circumstance which the Company could, in all the circumstances, reasonably be expected to have exercised control to prevent or overcome in the time available since the Unconditional Date).

24.17               Certain Funds

To ensure that Bidco has resources available to fulfil its obligations under the Offer, during the Certain Funds Period (notwithstanding any provision in this Agreement to the contrary except for Clause 9.1 (Illegality)) unless a Certain Funds Event of Default has occurred which is continuing, none of the Finance Parties shall be entitled to: