-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CG16Z/yk1cm2R6ygCc5dvVnKQe9ts9wNtTgZUbT5en/7NUzLnyqkAC3Hac49IkRj c2P4OKFz8BHLTX3zwu5K4Q== 0001104659-08-008904.txt : 20080211 0001104659-08-008904.hdr.sgml : 20080211 20080211142308 ACCESSION NUMBER: 0001104659-08-008904 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 24 FILED AS OF DATE: 20080211 DATE AS OF CHANGE: 20080211 GROUP MEMBERS: ALCOA INC. GROUP MEMBERS: ALUMINUM CORPORATION OF CHINA OVERSEAS HOLDINGS LIMITED GROUP MEMBERS: ORIENT PROSPECT PTE. LTD. GROUP MEMBERS: SHINING PROSPECT PTE. LTD. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: RIO TINTO PLC CENTRAL INDEX KEY: 0000863064 STANDARD INDUSTRIAL CLASSIFICATION: METAL MINING [1000] IRS NUMBER: 000000000 STATE OF INCORPORATION: X0 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-55245 FILM NUMBER: 08592711 BUSINESS ADDRESS: STREET 1: 5 ALDERMANBURY SQUARE CITY: LONDON, EC2V 7HR STATE: X0 ZIP: 00000 BUSINESS PHONE: 44 20 7781 1623 MAIL ADDRESS: STREET 1: RIO TINTO SERVICES INC. STREET 2: 80 STATE STREET CITY: ALBANY STATE: NY ZIP: 12207-2543 FORMER COMPANY: FORMER CONFORMED NAME: RTZ CORPORATION PLC DATE OF NAME CHANGE: 19950522 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Aluminum Corp of China CENTRAL INDEX KEY: 0001403565 IRS NUMBER: 000000000 STATE OF INCORPORATION: F4 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: NO. 62 NORTH XIZHIMEN STREET CITY: BEIJING STATE: F4 ZIP: 100082 BUSINESS PHONE: 86-10-82298587 MAIL ADDRESS: STREET 1: NO. 62 NORTH XIZHIMEN STREET CITY: BEIJING STATE: F4 ZIP: 100082 SC 13D 1 a08-4773_1sc13d.htm SC 13D

	UNITED STATES
	SECURITIES AND EXCHANGE COMMISSION
	Washington, D.C. 20549

	SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No. )*

Rio Tinto plc

(Name of Issuer)

Ordinary Shares

American Depositary Shares (each representing four ordinary shares)

(Title of Class of Securities)

Ordinary Shares (ISIN GB 0007188757)

American Depositary Shares (CUSIP US 767204100)

(CUSIP Number)

Zhao Zhengang
Deputy Director of Overseas Development
Department
Aluminum Corporation of China
No. 62, North Xizhimen Street
Beijing, China 100082
86-10-8229-8080

Lawrence R. Purtell, Esq.
Executive Vice President and General Counsel
Alcoa Inc.
390 Park Avenue
New York, New York 10022-4608
212- 836-2600

Copies to:

Charles I. Cogut, Esq.
Alan M. Klein, Esq.
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017
212-455-2000

Copies to:

Adam O. Emmerich, Esq.
Gregory E. Ostling, Esq.
Wachtell, Lipton, Rosen & Katz
51 West 52^nd Street
New York, New York 10019
212-403-1000

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

February 1, 2008

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

^* The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP No. GB0007188757/US767204100

	1.	Names of Reporting Persons Aluminum Corporation of China

	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			o
		(b)			x

	3.	SEC Use Only

	4.	Source of Funds (See Instructions) BK

	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6.	Citizenship or Place of Organization People’s Republic of China

Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 119,705,134

			8.	Shared Voting Power 0

			9.	Sole Dispositive Power 119,705,134

			10.	Shared Dispositive Power 0

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 119,705,134

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 12.00%*

	14.	Type of Reporting Person (See Instructions) CO

* The calculation of the foregoing percentage is based on 997,542,790 ordinary shares of the Issuer outstanding as of January 25, 2008, as reported in the Issuer’s announcement pursuant to Rule 2.10 under The City Code on Takeovers and Mergers of the United Kingdom (the “Rule 2.10 Announcement”) of January 25, 2008.

CUSIP No. GB0007188757/US767204100

	1.	Names of Reporting Persons Aluminum Corporation of China Overseas Holdings Limited

	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			o
		(b)			x

	3.	SEC Use Only

	4.	Source of Funds (See Instructions) BK

	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6.	Citizenship or Place of Organization Hong Kong

Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 119,705,134

			8.	Shared Voting Power 0

			9.	Sole Dispositive Power 119,705,134

			10.	Shared Dispositive Power 0

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 119,705,134

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 12.00%*

	14.	Type of Reporting Person (See Instructions) CO

* The calculation of the foregoing percentage is based on 997,542,790 ordinary shares of the Issuer outstanding as of January 25, 2008, as reported in the Issuer’s Rule 2.10 Announcement of January 25, 2008.

CUSIP No. GB0007188757/US767204100

	1.	Names of Reporting Persons Oriental Prospect Pte. Ltd.

	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			o
		(b)			x

	3.	SEC Use Only

	4.	Source of Funds (See Instructions) BK

	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6.	Citizenship or Place of Organization Republic of Singapore

Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 119,705,134

			8.	Shared Voting Power 0

			9.	Sole Dispositive Power 119,705,134

			10.	Shared Dispositive Power 0

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 119,705,134

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 12.00%*

	14.	Type of Reporting Person (See Instructions) CO

CUSIP No. GB0007188757/US767204100

	1.	Names of Reporting Persons Shining Prospect Pte. Ltd.

	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			o
		(b)			x

	3.	SEC Use Only

	4.	Source of Funds (See Instructions) BK

	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6.	Citizenship or Place of Organization Republic of Singapore

Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 119,705,134

			8.	Shared Voting Power 0

			9.	Sole Dispositive Power 119,705,134

			10.	Shared Dispositive Power 0

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 119,705,134

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 12.00%*

	14.	Type of Reporting Person (See Instructions) CO

CUSIP No. GB0007188757/US767204100

	1.	Names of Reporting Persons Alcoa Inc.

	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			o
		(b)			x

	3.	SEC Use Only

	4.	Source of Funds (See Instructions) WC

	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6.	Citizenship or Place of Organization Pennsylvania

Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 0*

			8.	Shared Voting Power 0*

			9.	Sole Dispositive Power 0*

			10.	Shared Dispositive Power 0*

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 0*

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 0*

	14.	Type of Reporting Person (See Instructions) CO

* See Item 3 and Item 5 for further information regarding Alcoa’s interest in the ordinary shares of the Issuer.

This statement on Schedule 13D (this “Schedule 13D”) is being filed by Aluminum Corporation of China (“Chinalco”), Aluminum Corporation of China Overseas Holdings Limited (“Chinalco Overseas”), Oriental Prospect Pte. Ltd. (“SPV I”), Shining Prospect Pte. Ltd. (“SPV II”) and Alcoa Inc. (“Alcoa,” and together with Chinalco, Chinalco Overseas, SPV I and SPV II, the “Reporting Persons”) relating to the ordinary shares of 10p each (the “Ordinary Shares”) of Rio Tinto plc, a company incorporated in England and Wales (the “Issuer”).
Item 1.	Security and Issuer.
This Schedule 13D relates to the Ordinary Shares of the Issuer, and is being filed pursuant to Rule 13d-1 under the Securities Exchange Act of 1934, as amended (the “Act”). The address of the principal executive office of the Issuer is 5 Aldermanbury Square, London, EC2V 7HR, United Kingdom.
Item 2.	Identity and Background.
This Schedule 13D is being jointly filed by Chinalco, Chinalco Overseas, SPV I, SPV II and Alcoa pursuant to a Joint Filing Agreement, dated as of February 11, 2008, a copy of which is attached hereto as Exhibit 99.1.
Chinalco
Chinalco is a corporation incorporated under the laws of the People’s Republic of China and a State-owned enterprise. Its only shareholder is the State-owned Asset Supervision and Administration Commission, a shareholding agency directly controlled by the State Council of the People’s Republic of China. Chinalco’s principal place of business and principal office is located at No. 62, North Xizhimen Street, Beijing, China 100082.
Set forth on Schedule I to this Schedule 13D and incorporated herein by reference is the following information with respect to each director and executive officer of Chinalco: (i) the name; (ii) the business address; (iii) to the best of Chinalco’s knowledge as of the date hereof, the present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted; and (iv) to the best of Chinalco’s knowledge as of the date hereof, the citizenship.
During the last five years, neither Chinalco nor, to the best of Chinalco’s knowledge as of the date hereof, any of its directors or executive officers: (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors); or (ii) was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
Chinalco Overseas
Chinalco Overseas is a corporation incorporated under the laws of Hong Kong and a wholly-owned subsidiary of Chinalco. Chinalco Overseas manages Chinalco’s overseas financial investments and operations, including Chinalco’s mining investments in non-ferrous metals. Chinalco Overseas’s principal place of business and principal office is located at Room 4501, 45/F, Far East Finance Centre, No. 16 Harcourt Road, Admiralty, Hong Kong.
Set forth on Schedule II to this Schedule 13D and incorporated herein by reference is the following information with respect to each director and executive officer of Chinalco Overseas: (i) the name; (ii) the business address; (iii) to the best of Chinalco Overseas’s knowledge as of the date hereof, the present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted; and (iv) to the best of Chinalco’s Overseas’s knowledge as of the date hereof, the citizenship.
During the last five years, neither Chinalco Overseas nor, to the best of Chinalco Overseas’s knowledge as of the date hereof, any of its directors or executive officers: (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors); or (ii) was a party to a civil proceeding of a judicial or

administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
SPV I and SPV II
SPV I is a private company limited by shares incorporated under the laws of the Republic of Singapore and a wholly-owned subsidiary of Chinalco Overseas. SPV I was formed solely for the purpose of making the investment in the Issuer’s Ordinary Shares and has not carried on any activities to date, except for activities incidental to its formation and activities undertaken in connection with the investment in the Issuer’s Ordinary Shares.
SPV II is a private company limited by shares incorporated under the laws of the Republic of Singapore and a wholly-owned subsidiary of SPV I. SPV II was formed solely for the purpose of making the investment in the Issuer’s Ordinary Shares and has not carried on any activities to date, except for activities incidental to its formation and activities undertaken in connection with the investment in the Issuer’s Ordinary Shares.
SPV I’s and SPV II’s principal place of business and principal office is located at 6 Temasek Boulevard, 29th Floor, Suntec Tower Four, Singapore 038986.
Set forth on Schedule III to this Schedule 13D and incorporated herein by reference is the following information with respect to each director and executive officer of SPV I and SPV II: (i) the name; (ii) the business address; (iii) to the best of SPV I’s and SPV II’s knowledge as of the date hereof, the present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted; and (iv) to the best of SPV I’s and SPV II’s knowledge as of the date hereof, the citizenship.
During the last five years, neither SPV I, SPV II nor, to the best of SPV I’s and SPV II’s knowledge as of the date hereof, any of their respective directors or executive officers: (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors); or (ii) was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
Alcoa
Alcoa is a Pennsylvania corporation. Alcoa’s principal place of business and principal office is located at 390 Park Avenue, New York, New York 10022-4608, United States of America.
Set forth on Schedule IV to this Schedule 13D and incorporated herein by reference is the following information with respect to each director and executive officer of Alcoa: (i) the name; (ii) the business address; (iii) to the best of Alcoa’s knowledge as of the date hereof, the present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted; and (iv) to the best of Alcoa’s knowledge as of the date hereof, the citizenship.
During the last five years, neither Alcoa, nor, to the best of Alcoa’s knowledge as of the date hereof, any of its directors or executive officers: (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors); or (ii) was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
Item 3.	Source and Amount of Funds or Other Consideration.
On February 1, 2008, SPV II, through Lehman Brothers International (Europe) (“LB International”) as broker, purchased 110,242,889 Ordinary Shares (including 945,813 American Depositary Shares representing

3,783,252 Ordinary Shares), representing approximately 11.05% of the outstanding Ordinary Shares (based on 997,542,790 Ordinary Shares outstanding as of January 25, 2008 as reported on the Issuer’s Rule 2.10 Announcement of January 25, 2008), each in market transactions for an aggregate amount of approximately US$13,151,047,424 (excluding stamp duties and applying The Bank of England GBP/USD Fix at 4:00 p.m. (GMT) on January 31, 2008) (the “Market Transaction”). In addition, on February 6, 2008, SPV II purchased from LB International 9,462,245 Ordinary Shares (representing approximately 0.95% of the outstanding Ordinary Shares as of January 25, 2008) for an aggregate amount of US$884,583,695 (excluding stamp duties and financing costs and applying a GBP/USD exchange rate of US$1.9768 for GBP1.00) pursuant to the physical settlement of a total return equity swap transaction (the “Swap Transaction”). The Market Transaction and the acquisition of Ordinary Shares pursuant to the physical settlement of the Swap Transaction are collectively referred to herein as the “Transactions.”

The Transactions were funded with the proceeds from (i) a US$3.6 billion loan made by China Development Bank (“CDB”) to Chinalco, (ii) a US$2.4 billion convertible loan made by CDB to Chinalco, (iii) a US$7.0 billion loan under a US$7.0 billion Term Loan Facility provided by CDB to SPV I and (iv) the issuance of a convertible note by SPV II to Alcoa in the aggregate amount of US$1.2 billion. On February 1, 2008, Chinalco and Alcoa announced in a joint press release that SPV II had acquired approximately 12.00% of the outstanding Ordinary Shares as of January 25, 2008. A copy of the joint press release is attached hereto as Exhibit 99.2.

Foreign Exchange Loan and Convertible Foreign Exchange Loan to Chinalco

On January 30, 2008, Chinalco and CDB entered into a Foreign Exchange Loan Contract (the “FE Loan Contract”), pursuant to which CDB made available to Chinalco a two-year loan in the aggregate amount of US$3.6 billion. In addition, on January 30, 2008, Chinalco, SPV I and CDB entered into a Foreign Exchange Loan Contract (Carrying a Share Conversion Option) (the “Convertible FE Loan”), pursuant to which CDB made available to Chinalco a three-year loan in the aggregate amount of US$2.4 billion. The Convertible FE Loan provides that at any time following the disbursement of any loan, CDB will have the right to convert all or parts of the outstanding loan amount (excluding any portion of interest that is capitalized and recorded into the loan balance as provided for in the Convertible FE Loan) into a specified number of shares of SPV I, which will, in turn, reduce the principal amount outstanding under the loan. It is anticipated, and it is the parties’ understanding, that upon the full conversion of the outstanding loan amount CDB will hold no more than 20% of the outstanding share capital of SPV I. The foregoing summary does not purport to be complete and is qualified in its entirety by reference to the English translation of the full text of the FE Loan Contract and the Convertible FE Loan, copies of which are filed as Exhibits 99.3 and 99.4 hereto and are incorporated herein by reference.

Term Loan Facility to SPV I

In addition, SPV I entered into a Facility Agreement (the “Parent Facility”) with CDB, pursuant to which CDB made available to SPV I a US dollar term loan facility of up to US$7.0 billion. In connection with the Parent Facility, on February 3, 2008 SPV I and CDB entered into a Share Charge Over SPV 2 (the “Security Deed”) and a Debenture (the “SPV I Debenture”), pursuant to which SPV I granted CDB a security interest in certain present and future assets of SPV I, including shares of SPV II, as security for the discharge of SPV I’s secured obligations. Under a Guarantee executed and delivered to CDB on February 3, 2008 (the “Guarantee”), Chinalco guaranteed SPV I’s obligations under the Parent Facility. In connection with the Parent Facility, in the Sponsor Undertaking, executed on February 3, 2008 (the “Undertaking”), Chinalco agreed and covenanted that SPV I will at all times own 100.00% of the share capital of SPV II. In addition Chinalco agreed to cause all other persons who directly or indirectly own any shares of SPV I to undertake that SPV I will at all times own 100.00% of the share capital of SPV II. The relations among security interests granted under the Parent Facility and the Senior Facility (as defined below) are governed by an Intercreditor Agreement among CDB, SPV I and SPV II, executed on February 3, 2008 (the “Intercreditor Agreement”).

The foregoing summaries of the Parent Facility, the Security Deed, the SPV I Debenture, the Guarantee, the Undertaking and the Intercreditor Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of the Parent Facility, the Security Deed, the SPV I Debenture, the English translation of the Guarantee, the Undertaking and the Intercreditor Agreement, copies of which are filed as Exhibits 99.5, 99.6, 99.7, 99.8, 99.9 and 99.10 hereto and are incorporated herein by reference.

Alcoa Note

A portion of the Transactions was financed with the proceeds from the issuance of a Convertible Senior Secured Note by SPV II to Alcoa on January 31, 2008 (the “Alcoa Note”). Under the Alcoa Note, SPV II promised to pay Alcoa an aggregate amount of up to US$1.2 billion on February 1, 2011 (the “Alcoa Note Maturity Date”). In addition, SPV II will pay interest on the outstanding principal on a semi-annual basis in arrears at a rate equal to the average cost of capital of all third-party financing of SPV II. Alcoa will, however, contribute to SPV II any amounts that are necessary for SPV II to make the interest payments required under the Alcoa Note. If SPV II elects to purchase additional Ordinary Shares, Alcoa may participate in the funding of such purchase by contributing a pro rata portion of the cost of such additional Ordinary Shares. Upon Alcoa’s participation and funding, Alcoa may require that the outstanding principal amount under the Alcoa Note and/or the number of shares of SPV II owned by Alcoa be increased accordingly.

In addition, Alcoa has the right, at any time following the expiration of the six-month period starting on January 31, 2008 or upon any winding-up or the liquidation of SPV II, to require SPV II to elect one of the following options: either (i) subject to applicable laws, to distribute in kind, in exchange for cancellation of the Alcoa Note and any equity interests into which it may have previously been converted, in whole or in part, to Alcoa the Equivalent Ordinary Shares and Other Property (as defined below) or (ii) to purchase Alcoa’s debt and equity interest in SPV II at a price equal to the then-current market value of the Equivalent Ordinary Shares and Other Property. “Equivalent Ordinary Shares and Other Property” means a number of Ordinary Shares (and other assets and property) held by SPV II from time to time that bears the same relation to the total number of Ordinary Shares (and other assets and property) held by SPV II as does the dollar amount of Alcoa’s total debt and equity investment and loans to SPV II to the dollar amount of all debt and equity investment and loans to SPV II, including the aggregate amount of debt financing provided to SPV II or its holding company by any third-party but only to the extent that the proceeds of such third-party debt financing have actually been used to purchase Ordinary Shares.

The Alcoa Note also provides that Alcoa may at any time and from time to time on or prior to the close of business on the business day immediately preceding the Alcoa Note Maturity Date convert the Alcoa Note, or any portion thereof, into a specified number of shares of SPV II. Upon the conversion of the full amount of the outstanding principal amount under the Alcoa Note, Alcoa would hold approximately 8.49% of the outstanding shares of SPV II. In addition, Alcoa is permitted at any time to increase the number of shares of SPV II which Alcoa would acquire upon full conversion of the Alcoa Note up to 25.00% of the outstanding share capital of SPV II. To achieve the foregoing, Alcoa may elect to increase the outstanding principal amount of the Alcoa Note or acquire shares of SPV II directly (or from Chinalco), in each case with tandem payment to Chinalco for the dilution.

Under the Alcoa Note, SPV II agreed to grant Alcoa a security interest to secure SPV II’s obligations under the Alcoa Note in (i) the Equivalent Ordinary Shares and Other Property (and all additional shares of, and all securities convertible into and warrants, options and other rights to purchase or otherwise acquire, stock of the Issuer that is or will be from time to time acquired by SPV II in any manner (which shares will be deemed to be part of the Equivalent Ordinary Shares and Other Property)) and the certificates representing the Equivalent Ordinary Shares and Other Property, and any interest or securities entitlement of SPV II in the entries on the books of any financial or securities intermediary pertaining to the Equivalent Ordinary Shares and Other Property and (ii) all property or other proceeds received or otherwise distributed in respect of, or in exchange for, any or all of the collateral referred in clause (i) of this paragraph.

The Alcoa Note also provides that neither Alcoa nor Chinalco or any of their affiliates may acquire any Ordinary Shares or any ordinary shares of Rio Tinto Limited, a company incorporated in Victoria, Australia, or any interest in any such ordinary shares other than as contemplated in the Alcoa Note through SPV II, and none of Alcoa, Chinalco or any of their affiliates may otherwise take any action that would impose any obligation upon either of them or any of their affiliates to make any offer for any additional Ordinary Shares or ordinary shares of Rio Tinto Limited or with respect to any extraordinary transaction involving the Issuer or Rio Tinto Limited. In addition, Alcoa agreed that except as provided elsewhere in the Alcoa Note or as agreed by Chinalco, during the period beginning on January 31, 2008 and ending at the time when the Alcoa Note is no longer outstanding, it will not

without the prior written consent of Chinalco (i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities or any assets, indebtedness or businesses of the Issuer, Rio Tinto Limited or any of their subsidiaries or controlled affiliates (the “Rio Tinto Group”), (B) any tender or exchange offer, merger or other business combination involving the Rio Tinto Group or assets of the Rio Tinto Group constituting a significant portion of the consolidated assets of the Rio Tinto Group, (C) any recapitalization, restructuring, liquidation, dissolution or extraordinary transaction with respect to the Rio Tinto Group or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules under the Act) or consents to vote any voting securities of the Issuer, Rio Tinto Limited or any of their controlled affiliates; (ii) form, join or in any way participate in a “group” as defined under Section 13(d) of the Act with respect to the Rio Tinto Group or otherwise act in concert with any person in respect of any such securities; (iii) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, the board of directors or policies of the Rio Tinto Group; (iv) take any action which would or would reasonably be expected to force the Rio Tinto Group to make a public announcement regarding any of the matters set forth in clause (i) of this paragraph; (v) enter into any discussions or arrangements with any third party with respect to any of the matters described in clauses (i) through (iv); or (vi) take any action that might restrict or limit the terms upon which SPV II might undertake an offer for the Rio Tinto Group at any time in the future.

SPV II and Alcoa further agreed to use best efforts to cooperate in good faith to amend the Alcoa Note at any time and from time to time to reflect the parties’ common understanding and intentions with respect to the subject matters set forth in the Alcoa Note and the Memorandum of Understanding between Chinalco and Alcoa, dated January 30, 2008, and in respect of the wider financing arrangements for the acquisition of Ordinary Shares.

On February 6, 2008, SPV II and Alcoa entered into a Charge Over Shares (the “Alcoa Deed”), pursuant to which SPV II granted Alcoa a security interest in certain Ordinary Shares acquired by SPV II with the proceeds from the issuance of the Alcoa Note in connection with the Transactions as security for the discharge of SPV II’s obligations under the Alcoa Note. For purposes of creating the security interest over the Ordinary Shares, SPV II created a securities account and appointed LB International as custodian for such securities account pursuant to a custody agreement.

The foregoing summary of the Alcoa Note and the Alcoa Deed does not purport to be complete and is qualified in its entirety by reference to the full text of the Alcoa Note and the Alcoa Deed, copies of which are filed as Exhibits 99.11 and 99.12 hereto and are incorporated herein by reference.

Senior Secured Term Loan Facility to SPV II

In connection with the Transactions, SPV II and CDB also entered into a Senior Secured Facility Agreement (the “Senior Facility”) dated February 3, 2008, pursuant to which CDB made available to SPV II a US dollar term loan facility of up to US$7.0 billion. As of the date hereof, SPV II has borrowed, but not used, an aggregate amount of US$2.0 billion under the Senior Facility. In connection with the Senior Facility and the Parent Facility (as defined below), on February 3, 2008, SPV II and CDB entered into a Security Over Shares Agreement (the “SPV II Security Agreement”) and a Debenture (the “SPV II Debenture”), pursuant to which SPV II granted CDB a security interest in certain present and future assets of SPV II, including certain Ordinary Shares purchased by it, as security for the discharge of SPV II’s secured obligations. For purposes of creating the security interest over the Ordinary Shares, SPV II created a securities account and appointed LB International as custodian for such securities account pursuant to a custody agreement. The foregoing summaries of the Senior Facility, the SPV II Security Agreement and the SPV II Debenture do not purport to be complete and are qualified in their entirety by reference to the full text of the Senior Facility, the SPV II Security Agreement and the SPV II Debenture, copies of which are filed as Exhibits 99.13, 99.14 and 99.15 hereto and are incorporated herein by reference.

Amendments to Financing Arrangements

CDB, SPV I and SPV II entered into a Waiver Letter, dated February 2, 2008 (the “Waiver Letter”), pursuant to which, among other matters, the parties agreed to cooperate to effect any necessary or desirable amendment or waiver of the Senior Facility or any related finance documents or the Parent Facility and any related finance documents. The foregoing summary of the Waiver Letter does not purport to be complete and is qualified in its entirety by reference to the full text of the Waiver Letter, a copy of which is filed as Exhibit 99.16 hereto and is incorporated herein by reference.


Item 4.	Purpose of Transaction.
The information set forth and/or incorporated by reference in Item 3 of this Schedule 13D is hereby incorporated by reference in this Item 4.
On November 1, 2007, BHP Billiton/BHP Billiton plc (together, "BHP") approached the Issuer and Rio Tinto Limited, an Australian corporation (together, “Rio”), with a proposal to combine Rio and BHP. On November 8, 2007, BHP confirmed that it had approached Rio and subsequently engaged in a global road show relating to its proposal to acquire Rio in a transaction in which Rio shareholders would have received 3 BHP shares for each Ordinary Share which valued Rio at approximately US$130.0 billion. Rio declined to negotiate with BHP and on December 21, 2007 the UK Takeover Panel ruled that BHP had until February 6, 2008 to either announce the intention to make a firm offer or to announce that it had no such intention and withdraw its proposal. On February 5, 2008, BHP made an offer of 3.4 BHP shares for each Ordinary Share which valued Rio at approximately US$147.0 billion (the “Pre-Conditional Offer”). The Pre-Conditional Offer contains a minimum acceptance condition requiring acceptances relating to more than 50% of the Ordinary Shares. BHP also proposed a buy-back of up to US$30.0 billion within one year of completing the Pre-Conditional Offer. The Pre-Conditional Offer is subject to satisfaction or waiver of the pre-conditions in the offer which relate to the obtaining of certain clearances in Europe, Australia, the United States, Canada and South Africa which BHP expects to obtain during the second half of 2008. On February 6, 2008 Rio rejected the Pre-Conditional Offer, stating that the Pre-Conditional Offer significantly undervalued Rio and was not in the best interests of its shareholders.
On February 1, 2008, Chinalco and Alcoa announced that they had entered into the Transactions and that SPV II had acquired 119,705,134 Ordinary Shares representing approximately 12.00% of the outstanding Ordinary Shares as of January 25, 2008.
Chinalco is one of the largest diversified metals and mining companies in China and is engaged in exploration, mining and downstream processing of mineral resources including bauxite, alumina, aluminum, copper, as well as other non-ferrous metals. Chinalco is the largest alumina and primary aluminum producer in China and one of the leading alumina and primary aluminum producers in the world. Alcoa is a world leader in the production and management of primary aluminum, fabricated aluminum and alumina combined, through its active and growing participation in all major aspects of the industry: technology, mining, refining, smelting, fabricating and recycling. Aluminum and alumina represent approximately three-fourths of Alcoa’s revenues. Nonaluminum products include precision castings, industrial fasteners, consumer products, food service and flexible packaging products, plastic closures, and electrical distribution systems for cars and trucks. Alcoa’s products are used worldwide in aircraft, automobiles, commercial transportation, packaging, consumer products, building and construction, and industrial applications.
The Transactions reflect Chinalco’s confidence in the long-term prospects for the rapidly evolving global mining sector. Chinalco has confidence in the fundamental value of the Rio Tinto Group and its management’s strong ability to realize that value for its shareholders. The Transactions are part of Chinalco’s ongoing strategy of growth and diversification consistent with Chinalco’s ambition to become a global leading diversified resource company. Chinalco has operations across 21 provinces in China and has eight overseas subsidiaries in five continents of the world. Accordingly, the Transactions reflect Chinalco’s determination to increase and diversify its exposure to the sector and to be well positioned within this changing industry landscape. Chinalco (through its subsidiaries, including Chinalco Overseas) recently extended its operations to a number of overseas resource projects and made financial investments in Australia, Peru, Vietnam and a number of other countries.
Alcoa has a long history of supporting aluminum industry investments in China and globally. In 2001, Alcoa successfully supported the initial public offering of Chinalco’s subsidiary, Aluminum Corporation of China Ltd. Alcoa is a significant metals producer in Australia, Canada, the United States and Europe. Separately, on May 8, 2007, Alcoa made an offer to acquire all of the outstanding common shares of Alcan Inc. (“Alcan”), in a transaction valued at approximately US$33.0 billion. Subsequently, on July 24, 2007, Rio Tinto Canada Holding Inc., an indirect wholly owned subsidiary of the Issuer made an offer to acquire all of the outstanding common shares of Alcan and successfully completed the purchase of all such shares on November 14, 2007, in a transaction valued at approximately US$42.5 billion.

In their press release of February 1, 2008 relating to the Transactions (a copy of which is filed as Exhibit 99.2 to this Schedule 13D), Chinalco and Alcoa confirmed that they did not currently intend to make an offer for the Issuer (the “Statement”). If a person chooses to make such a statement, under Rule 2.8 and other applicable provisions of The City Code on Takeovers and Mergers of the United Kingdom (which governs conduct in respect of acquisitions and related matters for publicly traded companies in the United Kingdom (the “City Code”)) such person is prohibited from announcing, making or (except for certain permitted actions) taking any steps to prepare to announce or make such an offer for a period of six months following a statement of intent such as the Statement, unless, and except to the extent that, they specifically reserve their rights to do so. In the Statement, however, for purposes of Rule 2.8 and other relevant provisions of the City Code, Chinalco and Alcoa reserved the right to announce an offer or possible offer or make or participate in an offer or possible offer for the Issuer and/or to take any other action which would otherwise be restricted under Rule 2.8 of the City Code within the six-month period, in the event that: (i) an agreement or recommendation from the board of directors of the Issuer is or will be forthcoming; (ii) there is an announcement by a third party, other than BHP, of a possible offer or a firm intention to make an offer for the Issuer, or the Issuer announces that it has received an approach in relation to a possible offer from a third party other than BHP; (iii) BHP announces a firm intention, on improved consideration terms from its initial proposal, to make an offer for the Issuer whether or not subject to any pre-conditions or revises the terms of any such offer; (iv) the Issuer undertakes or announces an intention to undertake any acquisition or disposal of a “material amount” (as defined in Rule 21.1 of the City Code), or any material recapitalization, other than the current purchase of its own shares pursuant to the authority granted at the annual general meeting of the Issuer on April 13, 2007 (where “material” is defined as 10.00% or more of the combined market capitalization of the Issuer and Rio Tinto Limited as at the close of business on the date of the Statement); (v) the Issuer announces a “whitewash” proposal for purposes of Rule 9 of the City Code or a reverse takeover; or (vi) there is a material change of circumstances. The Pre-Conditional Offer satisfies the terms set forth in clause (iii) above, and accordingly Chinalco and Alcoa are no longer restricted from announcing an offer or possible offer or making or participating in an offer or possible offer. In response to BHP’s announcement of the Pre-Conditional Offer, Chinalco and Alcoa on February 6, 2008 issued a joint press release, indicating that they planned to closely monitor further developments, in particular any response from the board of directors of the Issuer. A copy of the joint press release is attached hereto as Exhibit 99.17.

It is not possible to predict developments with respect to the proposed acquisition of the Issuer/Rio Tinto Limited by BHP, nor other developments in the industries and global economy in which those companies, Chinalco and Alcoa operate. However, the Reporting Persons believe that their interest in the Ordinary Shares may provide them with a strategic position in connection with any such developments. In this connection and more generally, the Reporting Persons intend to closely monitor and review the situation generally and their investment in the Issuer in particular on a continuing basis.

Depending on various factors, including, without limitation, developments in respect of the proposal by BHP to acquire the Issuer/Rio Tinto Limited, the Issuer’s financial position and strategic direction, the Issuer’s or other persons’ response to any actions or positions that may be suggested or taken by the Reporting Persons, price levels of the Ordinary Shares, and conditions in the securities market and general economic and industry conditions, the Reporting Persons reserve their right to, subject to the applicable provisions of the City Code (as regulated by the UK Takeover Panel) and other law and regulation, in the future, either alone or in concert with another person, take such actions with respect to the Issuer and their investment in the Issuer as they deem appropriate, including, but not limited to, purchasing or otherwise acquiring additional Ordinary Shares or other interests in the Issuer, selling some or all of their Ordinary Shares, communicating, negotiating with, seeking to negotiate with, or making proposals to the Issuer, investors or BHP or other industry participants, seeking to acquire or exercise control of, or making an offer for, the Issuer or some or all of the Issuer’s assets or properties, or making proposals in such regard, or conducting a proxy solicitation or otherwise exercising their voting power with respect to the board of directors of the Issuer or as to other matters within the power of the shareholders of the Issuer.

As detailed in, and subject to the terms of, the applicable provisions of the City Code, the Reporting Persons reserve their right to change their plans or intentions and to take any and all actions that they may deem appropriate to maximize the value of their investment in the Issuer in light of market conditions, subsequent developments affecting the Issuer, the Reporting Persons and other market participants, the general business and future prospects of the Issuer, the Reporting Persons and other market participants and the Reporting Persons’ investment policies and opportunities.

Other than as set forth herein, the Reporting Persons do not have any present plan or proposal that would relate to, or result in, any of the matters set forth in paragraphs (a) through (j) of Item 4 of Schedule 13D.

Item 5.	Interest in Securities of the Issuer.
(a) and (b) The information contained on the cover pages to this Schedule 13D is incorporated herein by reference.
Chinalco, Chinalco Overseas, SPV I and SPV II beneficially own 119,705,134 Ordinary Shares. The Ordinary Shares beneficially owned by Chinalco, Chinalco Overseas, SPV I and SPV II represent approximately 12.00% of the outstanding Ordinary Shares as of January 25, 2008.
Alcoa does not beneficially own any Ordinary Shares, however, the Alcoa Note is secured by 10,161,745 Ordinary Shares owned by SPV II which represents approximately 1.02% of the outstanding Ordinary Shares as of January 25, 2008. In addition, Alcoa has the right, at any time following the expiration of the six-month period starting on January 31, 2008 or upon any winding-up or the liquidation of SPV II, to require SPV II to elect one of the following options: either (i) subject to applicable laws, to distribute in kind, in exchange for cancellation of the Alcoa Note and any equity interests into which it may have previously been converted, in whole or in part, to Alcoa the Equivalent Ordinary Shares and Other Property or (ii) to purchase Alcoa’s debt and equity interest in SPV II at a price equal to the then-current market value of the Equivalent Ordinary Shares and Other Property. Furthermore, Alcoa may at any time and from time to time on or prior to the close of business on the business day immediately preceding the Alcoa Note Maturity Date convert the Alcoa Note, or any portion thereof, into a specified number of shares of SPV II. Upon the conversion of the full amount of the outstanding principal amount under the Alcoa Note, Alcoa would hold approximately 8.49% of the outstanding shares of SPV II.
(c) For purposes of the Market Transaction, on January 31, 2008, SPV II entered into a letter agreement with LB International, pursuant to which SPV II agreed to purchase up to 12.50% of the outstanding Ordinary Shares from LB International, its broker, on February 1, 2008. In addition, on February 5, 2008, SPV II and LB International agreed in a side letter to that letter agreement that the purchase price per Ordinary Share was GBP 60.00. In connection with the settlement of the Market Transaction, pursuant to a settlement agreement among LB International, Lehman Brothers Special Financing Inc., SPV II and Alcoa, dated February 5, 2008, SPV II directed LB International to transfer 10,161,745 Ordinary Shares to a securities account with LB International to secure the Alcoa Note as described above.
On January 24, 2008, SPV II and LB International entered into a total return equity swap transaction (referred to under Item 3 as the “Swap Transaction”) in respect of 9,462,245 Ordinary Shares (representing approximately 0.95% of the outstanding Ordinary Shares). The Ordinary Shares underlying the Swap Transaction had an initial price of approximately US$93.49 per Ordinary Share. Physical settlement applied to the Swap Transaction unless SPV II elected cash settlement. The Swap Transaction originally provided for settlement and termination on February 22, 2008.
On February 1, 2008, SPV II terminated a portion of the Swap Transaction with respect to 3,491,400 Ordinary Shares, and on February 4, 2008, SPV II terminated the remaining outstanding portion of the Swap Transaction. Physical settlement of the terminated Swap Transaction occurred on February 6, 2008, and LB International delivered to SPV II 9,462,245 Ordinary Shares and SPV II paid LB International an amount in cash equal to US$884,583,695 (excluding stamp duties and financing costs and applying a GBP/USD exchange rate of US$1.9768 for GBP 1.00).
Except as otherwise set forth in this Schedule 13D, none of the Reporting Persons or, to the best of the Reporting Persons’ knowledge as of the date hereof, any of the persons named in Schedules I, II, III and IV hereto, has engaged in any transaction in the Ordinary Shares of the Issuer during the past 60 days.

(d) Other than the Reporting Persons, to the best of the Reporting Persons’ knowledge as of the date hereof, none of the persons named in Schedules I, II, III and IV hereto or any other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from sale of, the Ordinary Shares.
(e) Not applicable.
Item 6.		Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.
The information set forth in Item 3 and Item 4 of this Schedule 13D is hereby incorporated by reference in this Item 6.
Memorandum of Understanding between Chinalco and Alcoa
On January 30, 2008, Chinalco and Alcoa entered into a non-binding Memorandum of Understanding (the “Memorandum”). The Memorandum sets forth the terms and conditions of Alcoa’s participation in the Transactions and contains a summary of the material terms of the Alcoa Note, including Alcoa’s option to convert additional portions of the loan under the Alcoa Note and/or to loan additional funds as agreed by the parties. In addition, the Memorandum contemplates, among other necessary documentation, the entry by the parties within 30 days following the completion of the Transactions into a shareholder agreement that will contain the governance provisions of SPV II and customary protection rights for minority shareholders and anti-dilution provisions. Under the Memorandum, Chinalco and Alcoa also agreed to coordinate and consult with each other on public comments, press releases or announcements relating to the matters described in the Memorandum. The foregoing summary of the Memorandum does not purport to be complete and is qualified in its entirety by reference to the full text of the Memorandum, a copy of which is filed as Exhibit 99.18 hereto and is incorporated herein by reference.
Except as set forth in this Schedule 13D, there are no other contracts, arrangements, understandings or relationships (legal or otherwise) between the Reporting Persons and any other person with respect to any securities of the Issuer.
Item 7.		Material to be Filed as Exhibits
Exhibit		Description of Exhibits
99.1		Joint Filing Agreement, dated as of February 11, 2008 by and among Aluminum Corporation of China, Aluminum Corporation of China Overseas Holdings Limited, Oriental Prospect Pte. Ltd., Shining Prospect Pte. Ltd. and Alcoa Inc.
99.2		Press Release (including no-bid statement under Rule 2.8 of the City Code) of Aluminum Corporation of China and Alcoa Inc., dated February 1, 2008
99.3		English Translation of the Foreign Exchange Loan Contract between Aluminum Corporation of China and China Development Bank, executed on January 30, 2008*
99.4		English Translation of the Foreign Exchange Loan Contract (Carrying a Share Conversion Option) by and among Aluminum Corporation of China, Oriental Prospect Pte. Ltd. and China Development Bank, executed on January 30, 2008*
99.5		Facility Agreement between Oriental Prospect Pte. Ltd. and China Development Bank, executed on February 3, 2008
99.6		Share Charge Over SPV 2 between Oriental Prospect Pte. Ltd. and China Development Bank, executed on February 3, 2008
99.7		Debenture of Oriental Prospect Pte. Ltd. in favour of China Development Bank, executed on February 3, 2008
99.8		English Translation of Guarantee by Aluminum Corporation of China, executed on February 3, 2008*
99.9		Sponsor Undertaking, executed on February 3, 2008
99.10		Intercreditor Agreement among China Development Bank, Oriental Prospect Pte. Ltd. and Shining Prospect Pte. Ltd., executed on February 3, 2008
99.11		Convertible Senior Secured Note between Shining Prospect Pte. Ltd. and Alcoa Inc., executed on January 31, 2008
99.12		Charge Over Shares, dated February 6, 2008, between Shining Prospect Pte. Ltd. and Alcoa Inc.
99.13		Senior Secured Facility Agreement, dated February 3, 2008, between Shining Prospect Pte. Ltd. and China Development Bank
99.14		Security Over Shares Agreement between Shining Prospect Pte. Ltd. and China Development Bank, executed on February 3, 2008
99.15		Debenture of Shining Prospect Pte. Ltd. in favour of China Development Bank, executed on February 3, 2008
99.16		Waiver Letter among China Development Bank, Oriental Prospect Pte. Ltd. and Shining Prospect Pte. Ltd., dated February 2, 2008
99.17		Press Release of Aluminum Corporation of China and Alcoa Inc., dated February 6, 2008
99.18		Memorandum of Understanding, dated January 30, 2008, between Aluminum Corporation of China and Alcoa Inc.

All English translations are being attached for convenience purposes only. In the event of any discrepancy between a translation and the original Chinese version, the Chinese version will prevail.

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: February 11, 2008

		ALUMINUM CORPORATION OF CHINA


		By:	/s/ XIAO YAQING
		Name:	Xiao Yaqing
		Title:	President


		ALUMINUM CORPORATION OF CHINA OVERSEAS HOLDINGS LIMITED


		By:	/s/ REN XUDONG
		Name:	Ren Xudong
		Title:	Chairman


		ORIENTAL PROSPECT PTE. LTD.


		By:	/s/ WANG WENFU
		Name:	Wang Wenfu
		Title:	Director


		By:	/s/ ZHAO ZHENGANG
		Name:	Zhao Zhengang
		Title:	Director


		SHINING PROSPECT PTE. LTD.


		By:	/s/ WANG WENFU
		Name:	Wang Wenfu
		Title:	Director


		By:	/s/ ZHAO ZHENGANG
		Name:	Zhao Zhengang
		Title:	Director

		ALCOA INC.


		By:	/s/ LAWRENCE R. PURTELL
		Name:	Lawrence R. Purtell
		Title:	Executive Vice President and General Counsel

INDEX TO EXHIBITS

Exhibit		Description of Exhibits
99.1		Joint Filing Agreement, dated as of February 11, 2008 by and among Aluminum Corporation of China, Aluminum Corporation of China Overseas Holdings Limited, Oriental Prospect Pte. Ltd., Shining Prospect Pte. Ltd. and Alcoa Inc.

99.2		Press Release (including no-bid statement under Rule 2.8 of the City Code) of Aluminum Corporation of China and Alcoa Inc., dated February 1, 2008

99.3		English Translation of the Foreign Exchange Loan Contract between Aluminum Corporation of China and China Development Bank, executed on January 30, 2008^*

99.4		English Translation of the Foreign Exchange Loan Contract (Carrying a Share Conversion Option) by and among Aluminum Corporation of China, Oriental Prospect Pte. Ltd. and China Development Bank, executed on January 30, 2008*.

99.5		Facility Agreement between Oriental Prospect Pte. Ltd. and China Development Bank, executed on February 3, 2008

99.6		Share Charge Over SPV 2 between Oriental Prospect Pte. Ltd. and China Development Bank, executed on February 3, 2008

99.7		Debenture of Oriental Prospect Pte. Ltd. in favour of China Development Bank, executed on February 3, 2008

99.8		English Translation of Guarantee by Aluminum Corporation of China, executed on February 3, 2008*

99.9		Sponsor Undertaking, executed on February 3, 2008

99.10		Intercreditor Agreement among China Development Bank, Oriental Prospect Pte. Ltd. and Shining Prospect Pte. Ltd., executed on February 3, 2008

99.11		Convertible Senior Secured Note between Shining Prospect Pte. Ltd. and Alcoa Inc., executed on January 31, 2008

99.12		Charge Over Shares, dated February 6, 2008, between Shining Prospect Pte. Ltd. and Alcoa Inc.

99.13		Senior Secured Facility Agreement, dated February 3, 2008, between Shining Prospect Pte. Ltd. and China Development Bank

99.14		Security Over Shares Agreement between Shining Prospect Pte. Ltd. and China Development Bank, executed on February 3, 2008

99.15		Debenture of Shining Prospect Pte. Ltd. in favour of China Development Bank, executed on February 3, 2008

99.16		Waiver Letter among China Development Bank, Oriental Prospect Pte. Ltd. and Shining Prospect Pte. Ltd., dated February 2, 2008

99.17		Press Release of Aluminum Corporation of China and Alcoa Inc., dated February 6, 2008

99.18		Memorandum of Understanding, dated January 30, 2008, between Aluminum Corporation of China and Alcoa Inc.

All English translations are being attached for convenience purposes only. In the event of any discrepancy between a translation and the original Chinese version, the Chinese version will prevail.

SCHEDULE I

The following table sets forth the name, present principal occupation or employment, and the name and principal business of the corporation or organization in which the employment is conducted for each member of Chinalco’s Board of Executive Officers. Unless otherwise indicated, each person listed below is a citizen of the People’s Republic of China. The business address of each such director or executive officer is c/o Aluminum Corporation of China, No. 62, North Xizhimen Street, Beijing 100082, China.

Directors

Chinalco does not have a board of directors.

Executive Officers

Name		Position

Xiao Yaqing		President of Aluminum Corporation of China

Lv Youqing		Vice President and Chief Financial Officer of Aluminum Corporation of China

Ao Hong		Vice President of Aluminum Corporation of China

Liu Caiming		Vice President of Aluminum Corporation of China

Zhang Chengzhong		Vice President of Aluminum Corporation of China

Ren Xudong		Vice President of Aluminum Corporation of China

SCHEDULE II

The following table sets forth the name, present principal occupation or employment, and the name and principal business of the corporation or organization in which the employment is conducted for each member of Chinalco Overseas’s board of directors and each executive officer of Chinalco Overseas. Unless otherwise indicated, each person listed below is a citizen of the People’s Republic of China. The business address of each such director or executive officer is c/o Aluminum Corporation of China Overseas Holdings Limited, Room 4501, 45/F, Far East Finance Centre, No. 16 Harcourt Road, Admiralty, Hong Kong.

Directors

Name		Position

Ren Xudong		Vice President of Aluminum Corporation of China

Zhang Zhankui		Deputy Director of the Financial Department of Aluminum Corporation of China

Wang Wenfu(1)		Director of Aluminum Corporation of China Overseas Holdings Limited; President of Aluminum Corporation of China Overseas Holdings Limited

Zhao Zhengang		Deputy Director of Overseas Development Department of Aluminum Corporation of China; Director of Aluminum Corporation of China Overseas Holdings Limited; Deputy General Manager of Overseas Development Department of Aluminum Corporation of China Limited

Mao Yuanjian		Director, Human Resources Department, Aluminum Corporation of China

Zhao Shouye		Head of Legal Department of Aluminum Corporation of China

Tai Yu(2)		Vice President of Aluminum Corporation of China Overseas Holdings Limited

Executive Officers

Name		Position

Ren Xudong		Chairman

Zhang Zhankui		Chief Financial Officer

Wang Wenfu		President

Tai Yu		Vice President

(1) Citizenship: Australia

(2) Citizenship: Australia

SCHEDULE III

The following table sets forth the name and address, present principal occupation or employment, and the name and principal business of the corporation or organization in which the employment is conducted for each member of Oriental Prospect Pte. Ltd.’s and Shining Prospect Pte. Ltd.’s board of directors. None of Oriental Prospect Pte. Ltd. or Shining Prospect Pte. Ltd. has appointed any executive officers. Unless otherwise indicated, each person listed below is a citizen of the People’s Republic of China.

Directors

Name		Position

Wang Wenfu(3) c/o Aluminum Corporation of China Overseas Holdings Limited Room 4501, 45/F Far East Finance Centre No. 16 Harcourt Road, Admiralty Hong Kong		Director of Aluminum Corporation of China Overseas Holdings Limited; President of Aluminum Corporation of China Overseas Holdings Limited

Zhao Zhengang c/o Aluminum Corporation of China Overseas Holdings Limited Room 4501, 45/F Far East Finance Centre No. 16 Harcourt Road, Admiralty Hong Kong		Deputy Director of Overseas Development Department of Aluminum Corporation of China; Director of Aluminum Corporation of China Overseas Holdings Limited; Deputy General Manager of Overseas Development Department of Aluminum Corporation of China Limited

Chia Hoo Khun Valery Kelvin(4) c/o Kelvin Chia Partnership 6 Temasek Boulevard, 29^th Floor, Suntec Tower Four Singapore 038986		Managing Partner of Kelvin Chia Partnership

(3) Citizenship: Australia

(4) Citizenship: Singapore

SCHEDULE IV

The following table sets forth the name, present principal occupation or employment, and the name and principal business of the corporation or organization in which the employment is conducted for each member of Alcoa’s board of directors and each executive officer of Alcoa. Unless otherwise indicated, each person listed below is a citizen of the United States of America. Unless otherwise indicated, the business address of each such director or executive officer is c/o Alcoa Inc., 390 Park Avenue, New York, New York 10022-4608.

Directors

Name		Position

Alain J. P. Belda(5)		Chairman of the Board and Chief Executive Officer, Alcoa Inc.

Kathryn S. Fuller c/o The Ford Foundation 320 East 43rd Street New York, New York 10017		Chair, The Ford Foundation

Carlos Ghosn(6) c/o Nissan Motor Co., Ltd. 17-1, Ginza 6-chome, Chuo-ku Tokyo 104-8023 Japan		President and Chief Executive Officer, Nissan Motor Co., Ltd., and President and Chief Executive Officer, Renault S.A.

Joseph T. Gorman c/o Moxahela Enterprises,LLC Lakepoint Office Park 3201 Enterprise Parkway Suite 410 Beachwood, Ohio 44122		Chairman and Chief Executive Officer, Moxahela Enterprises, LLC, a venture capital firm

Judith M. Gueron c/o MDRC 16 East 34th Street New York, New York 10016		Scholar in Residence at MDRC, a nonprofit research organization

Klaus Kleinfeld(7)		President and Chief Operating Officer, Alcoa Inc.

Michael G. Morris c/o American Electric Power Co., Inc. 1 Riverside Plaza Columbus, Ohio 43215		Chairman of the Board, President and Chief Executive Officer, American Electric Power Company, Inc.

(5) Citizenship: Brazil and United States

(6) Citizenship: France

(7) Citizenship: Germany

E. Stanley O’Neal c/o Merrill Lynch 623 Fifth Avenue, 35th Floor New York, New York 10022		Former Chairman of the Board and Chief Executive Officer, Merrill Lynch & Co., Inc.

James W. Owens c/o Caterpillar Inc. 100 NE Adams Street Peoria, Illinois 61629		Chairman and Chief Executive Officer, Caterpillar Inc.

Henry B. Schacht c/o Warburg Pincus 466 Lexington Avenue 10th Floor New York, New York 10017		Managing director and senior advisor of Warburg Pincus LLC, a global private equity firm

Ratan N. Tata(8) c/o Tata Sons Limited 24 Homi Mody Street Mumbai 400 001 India		Chairman, Tata Sons Limited, the holding company of the Tata Group

Franklin A. Thomas c/o The Study Group 380 Lexington Avenue 54th Floor New York, New York 10168		Consultant, The Study Group, a nonprofit institution

Ernesto Zedillo(9) c/o Yale Center for the Study of Globalization 393 Prospect Street New Haven, Connecticut 06511		Director, Yale Center for the Study of Globalization

(8) Citizenship: India

(9) Citizenship: Mexico

Executive Officers

Name		Position

Alain J. P. Belda		Director, Chairman of the Board and Chief Executive Officer, Alcoa Inc.

William F. Christopher		Executive Vice President – Alcoa and Group President, Engineered Products and Solutions, Alcoa Inc.

Klaus Kleinfeld		Director, President and Chief Operating Officer. Alcoa Inc.

Charles D. McLane, Jr.		Executive Vice President and Chief Financial Officer, Alcoa Inc.

Lawrence R. Purtell		Executive Vice President and General Counsel; Chief Compliance Officer, Alcoa Inc.

Bernt Reitan(10)		Executive Vice President – Alcoa and Group President, Global Primary Products. Alcoa Inc.

Tony R. Thene		Vice President and Controller, Alcoa Inc.

Paul D. Thomas		Executive Vice President – Alcoa and Group President, Alcoa Packaging and Consumer Products. Alcoa Inc.

Helmut Wieser(11)		Executive Vice President – Alcoa and Group President, Global Rolled Products, Hard Alloy Extrusions & Asia, Alcoa Inc.

(10) Citizenship: Norway

(11) Citizenship: Austria

EX-99.1 2 a08-4773_1ex99d1.htm EX-99.1

Exhibit 99.1

JOINT FILING AGREEMENT

Dated as of February 11, 2008

In accordance with Rule 13d-1(k) under the U.S. Securities Exchange Act of 1934, as amended, the undersigned hereby agree to the joint filing on behalf of each of them of a statement on Schedule 13D (including any amendments thereto) with respect to the ordinary shares (including any American Depositary Shares, each representing the right to receive four ordinary shares) of Rio Tinto plc, and that this Joint Filing Agreement be included as an Exhibit to such joint filing. The undersigned acknowledge that (i) each of the undersigned shall be responsible for the timely filing of such statement, and for the completeness and accuracy of the information concerning such person contained therein and (ii) such person is not responsible for the completeness or accuracy of the information concerning the other persons making the filing, unless such person knows or has reason to believe that such information is inaccurate.

This Joint Filing Agreement may be executed in one or more counterparts, and each such counterpart shall be an original but all of which, taken together, shall constitute but one and the same agreement.

[Remainder of page intentionally left blank.]

IN WITNESS WHEREOF, the parties hereto have executed this Joint Filing Agreement as of the date first written above.

ALUMINUM CORPORATION OF CHINA


By:					/s/ XIAO YAQING
					Name: Xiao Yaqing
					Title: President


ALUMINUM CORPORATION OF CHINA OVERSEAS HOLDINGS LIMITED


By:				/s/ REN XUDONG
				Name: Ren Xudong
				Title: Chairman


ORIENTAL PROSPECT PTE. LTD.


By:			/s/ WANG WENFU
			Name: Wang Wenfu
			Title: Director

By:		/s/ ZHAO ZHENGANG
		Name: Zhao Zhengang
		Title: Director


SHINING PROSPECT PTE. LTD.


By:		/s/ WANG WENFU
		Name: Wang Wenfu
		Title: Director

By:	/s/ ZHAO ZHENGANG
	Name: Zhao Zhengang
	Title: Director

		ALCOA INC.


		By:	/s/ LAWRENCE R. PURTELL
			Name: Lawrence R. Purtell
			Title: Executive Vice President and
			General Counsel

EX-99.2 3 a08-4773_1ex99d2.htm EX-99.2

Exhibit 99.2

FOR IMMEDIATE RELEASE

1 FEBRUARY, 2008

Chinalco and Alcoa

Acquisition of a stake in Rio Tinto plc

Shining Prospect Pte. Ltd. (“SPPL”), a Singapore based entity wholly owned by Chinalco and into which Alcoa has committed US$1.2 billion by way of a convertible instrument, today announces that it has acquired c. 12 per cent. of Rio Tinto plc’s existing share capital*.

Chinalco and Alcoa also confirm that they do not currently intend to make an offer for Rio Tinto plc but, for the purposes of Rule 2.8 and other relevant provisions of the City Code on Takeovers and Mergers (the “City Code”), Chinalco and Alcoa reserve the right to announce an offer or possible offer or make or participate in an offer or possible offer for Rio Tinto plc and/or take any other action which would otherwise be restricted under Rule 2.8 of the City Code within the next six months, in the event that:

(i) an agreement or recommendation from the board of Rio Tinto plc is or will be forthcoming; or

(ii) there is an announcement by a third party other than BHP Billiton, of a possible offer or a firm intention to make an offer for Rio Tinto plc or Rio Tinto plc announces that it has received an approach in relation to a possible offer from a third party other than BHP Billiton; or

(iii) BHP Billiton announces a firm intention, on improved consideration terms from its initial proposal, to make an offer for Rio Tinto plc whether or not subject to any pre-conditions or revises the terms of any such offer; or

(iv) Rio Tinto plc undertakes or announces an intention to undertake any acquisition or disposal of a material amount (where “material amount” is as defined in Rule 21.1 of the City Code), or any material recapitalisation, other than the current purchase of its own shares pursuant to the authority granted at the annual general meeting of Rio Tinto plc on 13 April 2007 (where “material” is defined as 10% or more of the combined market capitalisation of Rio Tinto plc and Rio Tinto Limited as at the close of business on the date of this announcement); or

(v) Rio Tinto plc announces a “whitewash” proposal for the purposes of Rule 9 of the City Code or a reverse takeover; or

(vi) there is a material change of circumstances.

Commenting on the acquisition, President Xiao Yaqing said:

“Our acquisition of a significant strategic stake in Rio Tinto plc today reflects our confidence in the long term prospects for the rapidly evolving global mining sector.

We have confidence in the fundamental value of the Rio Tinto Group and the management’s strong ability to realise that value for shareholders.

This strategic commitment underlines Chinalco’s determination to increase and diversify its exposure to the sector and to be well positioned within this changing industry landscape.”

Alain Belda, Chairman and CEO of Alcoa, said:

“We have long believed that Rio Tinto has a world-class portfolio of assets and is very well positioned to prosper in the current mining cycle. This investment, made in partnership with Chinalco, allows us to mutually benefit from developments

in the sector. We have known Chinalco for many years, dating back to our participation in the successful launch of Chalco’s IPO, and are looking forward to this new venture.”

* This includes an interest of c. 0.6 per cent. held by way of a derivative instrument.

Background to Chinalco

Chinalco is a diversified metals and mining company based in Beijing, China. Chinalco is one of the largest diversified metals and mining companies in China and is engaged in exploration, mining and downstream processing of mineral resources including bauxite, alumina, aluminum, copper, as well as other nonferrous and rare metals. Chinalco is the largest alumina and primary aluminum producer in China and one of the leading alumina and primary aluminum producers in the world.

Headquartered in Beijing and founded in 2001, Chinalco has operations across 21 provinces in China with subsidiaries/offices in 9 countries across 5 continents including operations and investments in Australia, Canada, Peru, Fiji and Guinea. Chinalco employs 221,000 people and for the 2007 financial year had total expected sales of US$18.3 billion with profits of US$2.99 billion.

Chinalco’s largest asset is a 38.56% stake in Chalco which is listed on the New York, Hong Kong, and Shanghai stock exchanges. Chalco has a market capitalisation of more than US$50 billion and had revenues of over US$8 billion in 2006. More information can be found at www.chinalco.com.cn

Background to Alcoa

Alcoa is the world’s leading producer and manager of primary aluminum, fabricated aluminum and alumina facilities, through its growing position in all major aspects of the industry. Alcoa serves the aerospace, automotive, packaging, building and construction, commercial transportation and industrial markets, bringing design, engineering, production and other capabilities of Alcoa’s businesses to customers. In addition to aluminum products and components including flat-rolled products, hard alloy extrusions, and forgings, Alcoa also markets Alcoa® wheels, fastening systems, precision and investment castings, structures and building systems. The Company has 107,000 employees in 44 countries and has been named one of the top most sustainable corporations in the world at the World Economic Forum in Davos, Switzerland. Alcoa is listed on NYSE and has a market value of approximately US$27 billion. More information can be found at www.alcoa.com

Lehman Brothers and China International Capital Corporation acted as financial advisors to Chinalco and SPPL.

Enquiries:

Chinalco		+ 86 10 82 29 85 08

Lv Youqing

Alcoa		+ 1 724 422 78 44

Kevin Lowery

Lehman Brothers International (Europe) Limited		+ 44 (0)20 7102 1000

London

Nick Wiles

Adrian Mee

Samuel Bertrand

Beijing			+ 852 2252 6000

Zhizhong Yang

Hong Kong			+ 852 2252 6000

Anthony Steains

Colin Banfield

China International Capital Corporation	+ 86 10 65 05 11 66

Yicheng Xu

The Maitland Consultancy		+ 44 (0)20 7379 5151

Philip Gawith

Liz Morley

Financial & Corporate Relations Pty Limited (FCR)			+ 61 292 351 666

Anthony Tregoning

Ashley Rambukwella

The Abernathy McGregor Group Inc.		+ 1 212 371 5999

Winnie Lerner

Tom Johnson

This announcement is not intended to, and does not, constitute or form part of any offer, invitation or the solicitation of an offer to purchase, otherwise acquire, subscribe for, sell or otherwise dispose of, any securities whether pursuant to this announcement or otherwise.

The distribution of this announcement in jurisdictions outside the United Kingdom may be restricted by law and therefore persons into whose possession this announcement comes should inform themselves about, and observe such restrictions. Any failure to comply with the restrictions may constitute a violation of the securities law of any such jurisdiction.

Lehman Brothers International (Europe) is advising Chinalco and SPPL and no-one else in relation to the matters contained in this announcement and will not be responsible to anyone other than Chinalco and SPPL for providing the protections afforded to clients of Lehman Brothers International (Europe) or for providing advice in relation to the matters contained in this announcement.

EX-99.3 4 a08-4773_1ex99d3.htm EX-99.3

Exhibit 99.3

ORIGINAL COPY

Contract No. : 1100126372008511512

CHINA DEVELOPMENT BANK

FOREIGN EXCHANGE LOAN CONTRACT

Type of Loan:		Self-Operated Foreign Exchange Loan
Name of Project:		Chinalco Overseas Development Project
Borrower:		Chinalco
Lender:		China Development Bank
Execution Date:		January 2008

Table of Contents

Article I Definitions	2

Article II Loan Commitment Amount	3

Article III Purpose of Use of the Loan	3

Article IV Term of the Loan	3

Article V Interest Rate and Interest of the Loan	3

Article VI Interest On Overdue Payments	4

Article VII Conditions Precedent for Drawdowns	4

Article VIII Drawdown	5

Article IX Disbursement of Funds	6

Article X Repayment of Principal and Interest	6

Article XI Prepayment	7

Article XII Order of Repayment	8

Article XIII Account Management	8

Article XIV Representations and Warranties of Borrower	8

Article XV Inspection on the Use Status of the Funds	9

Article XVI Information Disclosure	10

Article XVII Supervision of the Loan Project	10

Article XVIII Rights and Obligations of the Borrower	10

Article XIX Events of Default and Breach of Contract Liabilities of Borrower	11

Article XX Modification and Termination of Contract	12

Article XXI Entire Contract	13

Article XXII Confidentiality	13

Article XXIII Resolution of Disputes	13

Article XXIV Miscellaneous	13

Article XXV Effectiveness and Expiry of the Contract	13

Annex 1 Drawdown Application	15

Borrower: Aluminum Corporation of China (“Chinalco”)

Domicile: 62, Xizhimenbei Avenue, Beijing

Legal Representative: Xiao Yaqing

Post code: 100088

Handling Person: Zhang Zhankui

Tel: 82298288

Fax: 82298209

Lender: China Development Bank

Domicile: 29, Fuchengmeiwai Avenue, Xicheng District, Beijing

Legal Representative: Chen Yuan

Postcode: 100037

Handling Entity: Corporate Department, CDB

Domicile of Handling Entity: 158, Fuxingmennei Avenue, Xicheng District, Beijing

Head of the Handling Entity: Xu Qiying

Post code: 100031

Handling Person: Deng Xiaoliang

Tel: 66492154

Fax: 66413956

For the purpose of its overseas development project, the Borrower applies for a foreign exchange loan with the Lender, and the Lender agrees to extend the said loan. In accordance with relevant requirements of the laws and regulations of the state, and in observance of the principles of equality, voluntariness, fairness and good faith, the Lender and the Borrower hereby enter into this Contract upon mutual consultations and agreement:

ARTICLE I
DEFINITIONS

Unless otherwise defined herein, the following terms shall have the following meanings in this Contract:

1.1 Lender means China Development Bank.

1.2 Borrower means Chinalco.

1.3 Project means the overseas development project of Chinalco.

1.4 Loan Commitment Amount means the maximum loan amount the Lender agrees to make available to the Borrower.

1.5 Loan Balance means the loan amount actually disbursed by the Lender and not yet repaid by the Borrower.

1.6 Drawdown Period has the meaning as defined in Article 8.3 hereof.

1.7 Loan Account means the account opened by the Lender for the Borrower for the purpose of recording the disbursements, repayments, etc. of the loan under this Contract.

1.8 Deposit Account means the account opened by the Lender for the Borrower for the purpose of handling the operation of converting the borrowing into deposits as well as settlement operations under this Contract.

1.9 Fund Disbursement means the disbursement of Loan Funds made by the Lender in accordance with the needs of the Borrower out of the Deposit Account opened by the Borrower with the Handling Entity of the Lender, or the direct disbursement of Loan Funds made by the Lender on the basis of the drawdown application of the Borrower.

1.10 Handling Entity means the branch entity of the Lender that is specifically responsible for the execution of this project contract, the post-lending management work and related matters, all as authorized by the Lender.

1.11 Interest Period has the meaning as defined in Article 5.2 hereof.

1.12 Interest Payment Date means the date on which the Borrower shall repay the interest to the Lender, as set out in Article 5.2 hereof.

1.13 Principal Repayment Date means the date on which the Borrower repays the principal of loan, as set out in Article 10.1 hereof.

1.14 Business Day means any working day of the Lender, other than the statutory holidays of the state and public holidays.

1.15 LIBOR means the London Interbank Offered Rate (USD) published by British Bankers’ Association, and for the purpose of this Contract, the 6-month USD LIBOR rate, as displayed on TELERATE Screen 3750 (If no quotes are available on this screen, the equivalent screen of the Reuters terminal can be used) at London Time 11:00 am on the day which falls two Business Days prior to the commencement of each Interest Period, shall be used.

ARTICLE II
LOAN COMMITMENT AMOUNT

The Loan Commitment Amount hereunder shall be USD Three Point Six billion (USD$ 3,600,000,000).

ARTICLE III
PURPOSE OF USE OF THE LOAN

The loan hereunder shall be used for the overseas development project of Chinalco. The Borrower shall neither misappropriate nor divert the loan, nor shall the Borrower employ the capital hereunder in areas expressly prohibited by the state. If the Borrower misappropriates or diverts the loan funds, a penalty interest shall be calculated and paid in accordance with relevant stipulations of the People’s Bank of China.

ARTICLE IV
TERM OF THE LOAN

The loan hereunder shall have a term of 2 years, beginning as from January 31, 2008 and ending as of January 30, 2010.

ARTICLE V
INTEREST RATE AND INTEREST OF THE LOAN

5.1 Interest of the Loan

The interest rate of the loan hereunder shall be LIBOR (6-month USD) + 0.5%.

5.2 Interest Period and Interest Payment Date

The Interest Periods of the loan shall be 6 months each, commencing as of the date of first drawdown of the Loan Funds hereunder. The first Interest Period shall begin as from January 31, 2008 and end as of Jul.30, 2008.

The Interest Payment Dates shall be July 31^st and January 31^st of each year. The last Interest Payment Date under this Contract shall be the Principal Payment Date of the last repayment of the loan, on which the interest will become fully paid off along with the full repayment of the principal. If an Interest Payment Date occurs on a date that is not a Business Day, it shall be extended accordingly to the immediately following Business Day, provided that if such next Business Day falls in the next month, the said Interest Payment Date shall be advanced to its immediately preceding Business Day.

5.3 Calculation of the Interest

The interest shall accrue on the Loan Balance on the basis of the actual days and a 360-days year.

The interest calculation formula shall be:

Loan Balance × Loan Interest Rate × Actually Accrued Days of the Loan During the Corresponding Interest Period ÷ 360 Days.

ARTICLE VI
INTEREST ON OVERDUE PAYMENTS

6.1 If the Borrower fails to repay the due principal, interest and fee of the loan in accordance with the provisions of this Contract, the Lender shall charge the Borrower an interest on overdue payment at the interest rate of LIBOR (6-month USD) +1.5%.

6.2 The calculation formula for the Interest on Overdue Payments shall be:

Overdue Amount × Interest Rate of Interest on Overdue Payments × Overdue Days ÷ 360.

6.3 Should the Borrower still fail to repay the overdue principal, interest and fee of the loan by the next principal and interest repayment date, the Lender will charge the Borrower compounded interest at the then prevailing interest rate of the interest on overdue payments and on the basis of the Interest Period.

6.4 If the interest rate of the loan is a floating rate, the then prevailing penalty rate of all overdue amounts shall float along with the then prevailing loan interest rate.

ARTICLE VII
CONDITIONS PRECEDENT FOR DRAWDOWNS

7.1 The conditions precedent for the first drawdown of the Borrower shall include all of the following:

(a) The Lender has received from the Borrower the following documents or materials:

(1) Approval replies of relevant authorities of the state consenting to the Project;

(2) The legal person business license of the Borrower, a copy of the articles of association of the Borrower, and audited financial reports (both consolidated and non-consolidated) of the most recent three years and a financial flash report (both consolidated and non-consolidated) of the most recent quarter of the Borrower;

(3) The resolution of the relevant power organ of the Borrower consenting to the Borrower’s execution and performance of this Contract;

(4) The signature specimen of the legal representative of the Borrower for the execution of this Contract, or the power of attorney and signature specimen of an authorized signatory of the Borrower;

(b) The Borrower has opened the Loan Account and the Deposit Account in accordance with Article 13;

7.2 The conditions precedent for each drawdown (inclusive of the first drawdown) of the Borrower shall include the following:

(a) The representations of the Borrower as set forth in Article 14 hereof are true and valid;

(b) The Borrower is not in breach of the warranties set forth in Article 14 hereof;

ARTICLE VIII
DRAWDOWN

8.1 Drawdown Plan

The Borrower’s drawdown plan hereunder with respect to the Loan Commitment Amount shall be as follows:

January 31, 2008, USD 3 billion; February 1, 2008, USD 0.6 billion.

If the Borrower intends to change its drawdown plan, it shall give a 2 Business Days prior notice to the Lender.

8.2 Drawdown Procedure

The Borrower shall submit to the Lender an irrevocable drawdown application (the form of which is attached hereto as Annex 1) 3 Business Days prior to the drawdown date. Upon receipt and review and approval of said drawdown application, the Lender shall on the drawdown date transfer the drawdown amount applied for by the Borrower from the Loan Account of the Borrower into the Deposit Account of the Borrower, or, shall directly disburse the said amount into the account designated in the drawdown application by the party making the drawdown.

8.3 Drawdown Period

(a) The Drawdown Period under this Contract shall be 1 month, beginning as of January 31, 2008 and ending as of February 29, 2008.

(b) The Borrower may make drawdowns during the Drawdown Period only. Upon expiry of the Drawdown Period, the undrawn portion of the Loan Commitment Amount shall be cancelled automatically.

(c) The Drawdown Period shall not be extended without the consent of the Lender. Should the Borrower need to extend the Drawdown Period, it shall submit to the Lender a written application therefor 30 days before the expiry of the Drawdown Period. Only upon written consent of the Lender shall the Drawdown Period be extended.

ARTICLE IX
DISBURSEMENT OF FUNDS

The Borrower shall project its funding needs and shall, within 5 Business Days prior to the date of drawdown, notify the Handling Entity of the Lender of the fund disbursement needs by way of telephone, fax or otherwise.

The Borrower shall submit a disbursement notice to the Handling Entity of the Lender on the same date of the proposed fund disbursement. The Lender shall review the notice in accordance with its internal management procedures. If upon review the disbursement request is found true and complete, the Lender will complete the disbursement procedures on the same day of receipt of the disbursement notice. If upon review the disbursement request is found either untrue or incomplete, the Lender may temporarily postpone or may refuse the disbursement.

The basis for Fund Disbursements to be produced by the Borrower shall include: Statement on the

Status of Use of the CDB Loan and Letter on the Drawdown Plan for the Partial Rome Equity Acquisition Project, etc.

ARTICLE X
REPAYMENT OF PRINCIPAL AND INTEREST

10.1 Modality of Principal Repayment

The Borrower shall repay the principal of the loan in accordance with the following schedule:

January 31, 2009 USD 1.8 billion;

January 30, 2010 USD 1.8 billion.

10.2 The Lender will issue the Principal and Interest Repayment Notice to the Borrower prior to the principal and interest repayment date.

10.3 The Borrower shall, 2 Business Days prior to the principal and interest repayment date, remit the amounts payable into an account designated by the Lender.

10.4 Whether the Lender has notified the Borrower and whether the content of the Principal and Interest Repayment Notice is accurate shall not release the Borrower from the obligation to fully and promptly repay the principal and interest.

10.5 The Lender may on its own debit the corresponding amount from the Deposit Account opened by the Borrower with the Lender on the principal and interest repayment date.

ARTICLE XI
PREPAYMENT

This article shall only apply to the circumstance where the Borrower voluntarily makes prepayments with respect to the loan under this Contract.

11.1 The Borrower may not make any prepayment without the consent of the Lender.

11.2 If the Borrower needs to make a prepayment, it shall submit to the Lender a 15 days prior written application to that effect.

11.3 If the Lender consents to a prepayment by the Borrower, the Borrower shall, 2 Business Days prior to the determined Principal Repayment Date, remit the prepaid principal and corresponding interest and fee into an account designated by the Lender.

11.4 The prepayment amounts shall first be applied towards the repayment of the last maturing loan amount, i.e. the repayment shall be effected in a reversed order.

11.5 The prepayment application of the Borrower shall be irrevocable. No drawdown applications shall be made subsequently with respect to prepaid amounts.

ARTICLE XII
ORDER OF REPAYMENT

Should the repayment amounts of the Borrower be less than the aggregate amounts due and payable as of the relevant date under this Contract, such repayment amounts shall be applied in the following order:

(a) payment of indemnity and liquidated damages;

(b) payment of due penalty interest;

(d) payment of overdue principal ;

(e) payment of due fees;

(f) payment of due interest;

(g) payment of due principal.

If the repayment amounts of the Borrower are not sufficient to fully repay payable items of the same order, repayment shall then be made on the basis of the order of accrual of the relevant payable items.

ARTICLE XIII
ACCOUNT MANAGEMENT

The Borrower shall open the Loan Account and the Deposit Account with the Handling Entity of the Lender prior to January 31, 2008, for the purpose of loan disbursement, settlement, and loan principal and interest recovery by the Lender.

ARTICLE XIV
REPRESENTATIONS AND WARRANTIES OF BORROWER

14.1 The Borrower is a lawfully established legal person, possesses a valid business license, and owns its assets and operates its business in accordance with law;

14.2 The Borrower has completed all internal authorization procedures necessary for the execution of this Contract; the person signing this Contract is a duly authorized representative of the Borrower; and this Contract shall become legally binding on the Borrower immediately upon its effectiveness;

14.3 The financial reports furnished by the Borrower to the Lender have been prepared in accordance with currently effective laws, regulations and accounting standards and have truthfully and accurately reflected the financial position of the Borrower as of the relevant reporting year;

14.4 All other materials furnished by the Borrower to the Lender are true and accurate and all submitted copies are in conformity with their originals;

14.5 The Borrower confirms that its Loan Project has obtained approval, consent and registration from National Development and Reform Commission, State Administration of Foreign Exchange and other relevant examination and approval authorities and it further guarantees that all approval documents will be provided prior to its start of use of the foreign exchange.

ARTICLE XV
INSPECTION ON THE USE STATUS OF THE FUNDS

Upon disbursement of the loan funds, the Lender shall be entitled to inspect, either onsite or offsite, the use of the Loan Funds hereunder. The Borrower shall, in accordance with the requirement of the Lender, submit to the Handling Entity of the Lender an Implementation Status Report on the use of the Loan Funds together with corresponding fund use vouchers. The Lender may inspect onsite the use status of the loan and the Borrower shall actively cooperate with the Lender on the inspection and shall, in accordance with the requirement of the Lender, provide relevant materials. The content of the inspection of the Lender shall include the following:

(a) Whether the purpose of use of the loan has been changed; whether upon disbursements the loan has been channeled into domestic securities trading, futures trading, real estate business operation, venture capital and other areas prohibited by the Lender;

(b) Whether the Project has proceeded smoothly and whether there has occurred any material accident;

(c) Whether the cumulative completed volume of the acquisition matches the cumulative financial expenditures of the Project;

(d) Whether the estimated total investment can be controlled within the budget range.

If the Lender finds that smooth completion of the Loan Project has been affected by Borrower’ misuse of the funds, it may require the Borrower to rectify the same within a set time limit.

ARTICLE XVI
INFORMATION DISCLOSURE

16.1 The Borrower shall, prior to May 31 each year, submit to the Lender the full set of financial reports (both consolidated and non-consolidated) (including balance sheet, income statement, cashflow statement and auditor’s report) of the previous fiscal year as audited by an accounting firm acceptable to the Lender; and shall, prior to Sept.10^th each year, submit to the Lender the full set of financial statements (unaudited) (both consolidated and non-consolidated) of the first half of the year.

16.2 In the event of a change to its company name, domicile, registered capital, business scope, or company type, or its articles of association, or in the event of a material financial change, the Borrower shall provide a 10 days prior written notice to the Lender and shall file relevant documents with the Lender for record. In the event of a material change to its legal representative or its financial head, the Borrower shall promptly notify the Lender of the same in writing.

16.3 The Lender shall be entitled to request the Borrower to provide essential dynamic information on the use of funds over the period from the approval of the Project to the termination of contract, together with relevant loan fund use vouchers. The Borrower shall provide the same without delay.

ARTICLE XVII
SUPERVISION OF THE LOAN PROJECT

The Lender may periodically visit the Borrower and the loan Project and may gather information on the Loan Project through the following means:

(a) to hear reports of the key responsible person/s of the Borrower on the status of the loan Project;

(b) to inspect the financial reports, accounting vouchers, accounting books and like financial and accounting documentation and other relevant documentation of the Borrower or the loan Project;

The Borrower shall cooperate with the Lender on the above activities.

ARTICLE XVIII
RIGHTS AND OBLIGATIONS OF THE BORROWER

18.1 The Borrower shall have the right to request the Lender to extend the loan in accordance with this Contract;

18.2 The Borrower shall effect drawdowns in accordance with the Drawdown Plan hereunder;

18.3 The Borrower shall repay the principal and interest of the loan in accordance with this Contract;

18.4 If the Lender believes that a transaction conduct in respect of the loan Project hereunder contains a defect that may result in nullification of this Contract, or if the transaction fails, the Lender shall be entitled to request the Borrower to immediately repay the loan and the Borrower shall so repay immediately upon receipt of the notice of the Lender.

18.5 The Borrower shall promptly handle and complete all formalities in accordance with relevant foreign exchange administration regulations of the state;

18.6 The Borrower shall obtain prior written consent of the Lender with respect to any transfer of its operating assets amounting to 50% or above of its total assets;

18.7 In the event of a merger, spin-off or other ownership or structural changes, the Borrower shall provide the Lender with a 30 days notice of the relevant plan of change and must obtain the Lender’s consent thereto. No such plan of change shall prejudice the legitimate rights and interest of the Lender under this Contract;

18.8 If the Borrower provides guarantee to a third party and if the cumulative guarantee amount threatens to exceed 70% of the net assets stated in the financial statements of the most recent fiscal year of the Borrower, the Borrower must obtain from the Lender its written consent thereto.

18.9 The Borrower shall not apply for loans with the Lender by way of false project reporting, etc.

18.10 The Borrower shall cooperate with the Lender on its credit rating work and shall provide relevant documents in accordance with the request of the Lender.

18.11 The Borrower shall within 10 days of the occurrence of the conduct of acquisition provide information on the acquired shares and the use of the Loan Funds.

18.12 Any money or other derivatives transaction undertaken by the Borrower under this Contract shall obtain the consent of the Lender.

ARTICLE XIX
EVENTS OF DEFAULT AND BREACH OF
CONTRACT LIABILITIES OF BORROWER

19.1 If the Borrower breaches the provisions of Articles 15, 16, 17 or 18 hereof, or if any of the Borrower’s representations or warranties set out in Article 14 is found inaccurate or misleading, the Lender shall be entitled to request the Borrower to rectify the same within a set time limit. In case the Borrower fails to so rectify within such time limit, the Lender shall have the right to take one or more of the following measures:

(a) to cease the disbursement of the loan;

(b) to declare accelerated maturity of the loan, and to simultaneously request the Borrower to repay the principal and interest of the disbursed portion of the loan within a set time limit. Moreover, the Lender shall have the right to directly deduct the repayable amounts from the accounts opened by the Borrower (By executing this Contract, the Borrower has authorized the Lender to exercise such right to directly deduct the repayable amounts);

(c) to unilaterally terminate this Contract.

19.2 If the Borrower breaches provisions other than those set forth in 19.1 above, the Lender shall have the right to request the Borrower to rectify the same within a set time limit. If the Borrower fails to so rectify within such time limit, the Lender shall have the right to request the Borrower to pay a liquidated damages equal to 0.5% of the amount borrowed as of the time of occurrence of the breach, provided that if such liquidated damages are not sufficient to cover the financial losses suffered by the Lender, the Lender shall have the right to request the Borrower to compensate for the same.

19.3 If the act of breach of the Borrower results in a litigation, the Borrower shall assume the attorney’s fee incurred by the Lender in connection with the litigation.

ARTICLE XX
MODIFICATION AND TERMINATION OF CONTRACT

20.1 Unless otherwise set forth herein, neither party shall unilaterally modify or terminate this Contract upon its effectiveness. Any amendment to or modification of this Contract shall be mutually agreed upon by the Lender and Borrower through consultations and shall be concluded in a written instrument.

20.2 The Lender may partially or wholly assign its rights hereunder to a third party. The Lender shall notify the Borrower of such assignment.

20.3 If, due to a change of the laws, regulations or policies of the state, all or part of the provisions of this Contract become inconsistent with the requirements of such laws, regulations or policies, the Borrower and the Lender shall promptly consult each other and shall amend relevant provisions as soon as possible.

20.4 If, due to a force majeure event, either the Borrower or the Lender is unable to perform the Contract, the relevant party shall promptly notify the other party and shall take effective measures to prevent the widening of the losses. The party affected by the force majeure event shall within 20 days of the occurrence of the event provide the other party with details on such force majeure event as well as the certificate issued by relevant governmental authorities on the occurrence and impact of said force majeure event. The Borrower and the Lender shall promptly consult each other on the measures to deal with such force majeure event.

ARTICLE XXI
ENTIRE CONTRACT

All supplements, amendments or changes to this Contract shall be an integral part of the Contract.

ARTICLE XXII
CONFIDENTIALITY

Without the consent of the other party, neither party shall disclose to a third party the content of this Contract or the business secrets of the other party.

ARTICLE XXIII
RESOLUTION OF DISPUTES

Disputes between the Borrower and the Lender arising out of the performance of this Contract shall be resolved through consultations. Failing such resolution, the dispute shall be resolved through litigation before the People’s Court of the domicile of the Lender.

ARTICLE XXIV
MISCELLANEOUS

24.1 Matters not covered by this Contract shall be dealt with by the Borrower and the Lender through consultations or shall be dealt with according to the stipulations of relevant laws and regulations of the state.

24.2 This Contract is made in two originals, with the Borrower and the Lender each holding one copy thereof; and in eight duplicates, with the Borrower holding two copies and the Lender holding six copies thereof.

ARTICLE XXV
EFFECTIVENESS AND EXPIRY OF THE CONTRACT

This Contract shall become effective as of the date of signature and sealing by both the Borrower and the Lender, and shall expire on the date of full repayment of the entire debt hereunder.

Borrower:	(Company Seal or Special Seal for Contracts)

Legal Representative		/s/ Zhang Zhankui
	Deputy Director, Financial Department
(or Authorized Representative)

	January 30, 2008

Opening Bank & Account No. of Borrower:

Lender			(Special Seal for Contracts)

Legal Representative		/s/ Xu Qiying

(or Authorized Representative)

		(mm) (dd) (yy)

Place of Execution: Xi Cheng District, Beijing

Annex 1

DRAWDOWN APPLICATION

(No. )

China Development Bank:

Pursuant to the Foreign Exchange Loan Contract between our Company and your Bank dated (mm) (dd) (yy)(Contract No. ), we hereby irrevocably file the following loan drawdown application with the Bank:

· Drawdown Amount: ;

· Drawdown Date: (mm) (dd) (yy);

· Purpose of Use of Drawdown Fund: ;

· We hereby authorize the Bank to transfer the said amount into the Deposit Account opened by us with the Bank, the Account No. of which is ;

· We hereby authorize the Bank to directly disburse on the Drawdown Date the said amount to , whose opening bank and account number are .

We hereby declare that we have satisfied all of the conditions precedent for drawdowns set forth in the Foreign Exchange Loan Contract (Contract No. ) and that there has occurred no event of default whatsoever under the said Contract. The foregoing drawdown will constitute a drawdown by us on the Bank and we will assume all debts arising therefrom.

		Borrower:
		(company seal or special seal for contracts)

		Legal Representative
		(or Authorized Representative):
				(signature)

		Date: (mm) (dd) (yy)


		(affixed with the bank’s Special Seal for Contracts)

EX-99.4 5 a08-4773_1ex99d4.htm EX-99.4

Exhibit 99.4

ORIGINAL COPY

Contract No. : 1100126372008511514

CHINA DEVELOPMENT BANK

FOREIGN EXCHANGE LOAN CONTRACT

(Carrying a Share Conversion Option)

Type of Loan:	Self-Operated Foreign Exchange Loan
	(Carrying a Share Conversion Option)
Name of Project:	Chinalco Overseas Development Project
Borrower:	Chinalco
Lender:	China Development Bank
Third Party:	Singapore SPV1
Execution Date:	January 2008

Table of Contents

Article I Definitions	2

Article II Loan Commitment Amount	3

Article III Purpose of Use of the Loan	3

Article IV Term of the Loan	4

Article V Interest Rate and Interest of the Loan	4

Article VI Interest on Overdue Payments	5

Article VII Conditions Precedent for Drawdowns	5

Article VIII Drawdown	6

Article IX Disbursement of Funds	7

Article X Repayment of Principal and Interest	7

Article XI Prepayment	8

Article XII Order of Repayment	8

Article XIII Account Management	9

Article XIV Representations and Warranties of Borrower and Singapore SPV1	9

Article XV Inspection on the Use Status of the Funds	10

Article XVI Information Disclosure	10

Article XVII Supervision of the Loan Project	11

Article XVIII Rights and Obligations of the Borrower	11

Article XIX [Share Conversion Option]	12

Article XX Events of Default and Breach of Contract Liabilities of Borrower	13

Article XXI Modification and Termination of Contract	14

Article XXII Entire Contract	15

Article XXIII Confidentiality	15

Article XXIV Governing Law and Resolution of Disputes	15

Article XXV Miscellaneous	15

Article XXVI Effectiveness and Expiry of the Contract	16

Drawdown Application	18

Borrower: Aluminum Corporation of China (“Chinalco”)

Domicile: 62, Xizhimenbei Avenue, Beijing

Legal Representative: Xiao Yaqing

Post code: 100088

Handling Person: Zhang Zhankui

Tel: 82298288

Fax: 82298208

Lender: China Development Bank

Domicile: 29, Fuchengmeiwai Avenue, Xicheng District, Beijing

Legal Representative: Chen Yuan

Postcode: 100037

Handling Entity: Corporate Department, CDB

Domicile of Handling Entity: 158, Fuxingmennei Avenue, Xicheng District, Beijing

Head of the Handling Entity: Xu Qiying

Post code: 100031

Handling Person: Deng Xiaoliang

Tel: 66492154

Fax: 66413956

Third Party: Oriental Prospect Pte. Ltd.

Domicile: 6 Temasek Boulevard, 29^th Floor, Suntec Tower Four, Singapore 038986

Legal Representative: Wang Wenfu

Handling Person: Jin Yanbing

Contact Telephone: +86-10-82298263; +86-0-13911887640

For the purpose of Chinalco’s overseas development project, the Borrower applies for a foreign exchange loan with the Lender, and the Lender agrees to extend the said loan. In accordance with relevant requirements of the laws and regulations of the state, and in observance of the principles of equality, voluntariness, fairness and good faith, the Lender and the Borrower hereby enter into this Contract upon mutual consultations and agreement:

ARTICLE I
DEFINITIONS

Unless otherwise defined herein, the following terms shall have the following meanings in this Contract:

1.1 Lender means China Development Bank.

1.2 Borrower means Chinalco.

1.3 [HK SPV] means the wholly-owned subsidiary established by Chinalco in Hong Kong; [Singapore SPV1] means the overseas target company established by [HK SPV] for the purpose of this Project; [Singapore SPV2] means the wholly-owned subsidiary established by [Singapore SPV1].

1.4 Project means the overseas development project of Chinalco.

1.5 Loan Commitment Amount means the maximum loan amount the Lender agrees to make available to the Borrower.

1.6 Loan Fund means any loan principal under the Loan Commitment Amount that has been disbursed or will be disbursed to the Borrower in accordance with the terms of this Contract, including the Capital Interest recorded in accordance with Article 5.4 hereof.

1.7 Loan Balance means the Loan Funds actually disbursed by the Lender and not yet repaid by the Borrower, including the Capital Interest recorded in accordance with Article 5.4 hereof.

1.8 Drawdown Period has the meaning as defined in Article 8.3 hereof.

1.9 Loan Account means the account opened by the Lender for the Borrower for the purpose of recording the disbursements, repayments, etc. of the loan under this Contract.

1.10 Deposit Account means the account opened by the Lender for the Borrower for the purpose of handling the operation of converting the borrowing into deposits as well as settlement operations under this Contract.

1.11 Fund Disbursement means the disbursement of a Loan Fund made by the Lender in accordance with the needs of the Borrower out of the Deposit Account opened by the Borrower with the Lender, or the direct disbursement of a Loan Fund made by the Lender on the basis of the drawdown application of the Borrower.

1.12 Interest Period means, with respect to any Loan Fund, the interest period as defined in Article 5.2 hereof.

1.13 Interest Payment Date means the date on which the Borrower shall pay the interest to the Lender, as set out in Article 5.2 hereof.

1.14 Principal Repayment Date means the date on which the Borrower repays the principal of the loan, as set out in Article 10.1 hereof.

1.15 Business Day means any working day of the Lender, other than the statutory holidays of the state and public holidays.

1.16 LIBOR means the London Interbank Offered Rate (USD) published by British Bankers’ Association, and for the purpose of this Contract, the 6-month USD LIBOR rate, as displayed on TELERATE Screen 3750 (If no quotes are available on this screen, the equivalent screen of the Reuters terminal can be used) at London Time 11:00 am on the day which falls two Business Days prior to the commencement of each Interest Period, shall be used.

1.17 Cash Interest Rate means, with respect to any Loan Fund, the annual interest rate of 1%.

1.18 Cash Interest means the cash interest accrued in accordance with Article 5.3 hereof.

1.19 Capital Interest Rate means, with respect to any Loan Fund, LIBOR-0.5%.

1.20 Capital Interest means the capital interest accrued in accordance with Article 5.4 hereof.

ARTICLE II
LOAN COMMITMENT AMOUNT

The Loan Commitment Amount hereunder shall be determined on the basis of the amount of convertible debt as mutually agreed by the two parties and shall include: (a) a maximum of Two Point Four Billion US dollars (US$2,400,000,000) Loan Funds available to drawdowns by the Borrower under this Contract; and (b) the Capital Interest as capitalized in accordance with this Contract.

ARTICLE III
PURPOSE OF USE OF THE LOAN

The loan hereunder shall be used for Chinalco’s overseas development project. The Borrower shall neither misappropriate nor divert the loan, nor shall the Borrower employ the capital hereunder in areas expressly prohibited by the state. If the Borrower misappropriates or diverts a Loan Fund, a penalty interest shall be calculated and paid in accordance with relevant stipulations of the People’s Bank of China.

ARTICLE IV
TERM OF THE LOAN

The loan hereunder shall have a term of 3 years, beginning as from February 1, 2008 and ending as of January 31, 2011.

ARTICLE V
INTEREST RATE AND INTEREST OF THE LOAN

5.1 Interest Rate of the Loan

The interest rate of the loan hereunder shall be calculated in the form of convertible debt as mutually agreed by the two parties. The interest rate of the loan shall be LIBOR (6-month USD) + 0.5%, inclusive of both the Cash Interest Rate and the Capital Interest Rate.

5.2 Interest Period and Interest Payment Date

The Interest Periods hereunder shall be 6 months each and shall start to run from the date of the first drawdown of the Loan Funds hereunder. The first Interest Period shall commence as from February 1, 2008 and end as of July 31, 2008.

The Interest Payment Dates shall be July 31^st and January 31^st of each year. The last Interest Payment Date under this Contract shall be the Principal Payment Date of the last repayment of the loan, on which the interest will become fully paid off along with the full repayment of the principal. If an Interest Payment Date falls on a date that is not a Business Day, it shall be extended to the immediately following Business Day, provided that if such next Business Day falls in the next month, the said Interest Payment Date shall then be advanced to the immediately preceding Business Day.

5.3 Calculation and Payment of Cash Interest

A Cash Interest shall accrue on the Loan Funds on the basis of the number of actually accrued days and a 360-days year. The Borrower shall pay on each Interest Payment Date the Cash Interest accrued from the Loan Funds during the corresponding Interest Period.

The calculation formula for the Cash Interest shall be: Loan Balance × Cash Interest Rate × Actually Accrued Days of the Loan During the Corresponding Interest Period ÷ 360 Days.

5.4 Calculation and Payment of Capital Interest

In addition to the Cash Interest as set out in Article 5.3 above, a Capital Interest shall accrue on the Loan Funds on the basis of the number of actually accrued days and a 360-days year. The Capital Interest accrued from the Loan Fund during the corresponding Interest Period shall be automatically capitalized into new Loan Fund on each Interest Payment Date and shall be recorded into the Loan Balance. Any Capital Interest so accrued shall, upon such capitalization on each Interest Payment Date, be deemed part of the principal of the loan disbursed under this Contract, including without limitation, to the effect that such capitalized Capital Interest shall accrue both Cash Interest and Capital Interest in accordance with this Contract and that such capitalized Capital Interest shall be repaid or prepaid by the Borrower in accordance with this Contract.

The calculation formula for the Capital Interest shall be: Loan Balance × Capital Interest Rate × Actually Accrued Days of the Loan During the Corresponding Interest Period ÷ 360.

ARTICLE VI
INTEREST ON OVERDUE PAYMENTS

6.1 If the Borrower fails to repay the due principal, interest and fee of the loan in accordance with the provisions of this Contract, the Lender shall charge the Borrower an interest on overdue payment at an interest rate equal to LIBOR (6-month USD) +1.5%.

6.2 The calculation formula for the interest on overdue payments shall be: Overdue Amount × Interest Rate of the Interest on Overdue Payments × Overdue Days ÷ 360.

6.4 If the interest rate of the loan is a floating rate, the then prevailing penalty rate of all overdue amounts shall float along with the then prevailing loan interest rate.

ARTICLE VII
CONDITIONS PRECEDENT FOR DRAWDOWNS

7.1 The conditions precedent for the first drawdown of the Borrower shall include all of the following:

(a) The Lender has received from the Borrower the following documents or materials:

(1) Approval replies of relevant authorities of the state consenting to the Project;

(2) The legal person business license of the Borrower, a copy of the articles of association of the Borrower, and audited financial reports (both consolidated and non-consolidated) of the most recent three years of the Borrower and a financial flash report (both consolidated and non-consolidated) of the most recent quarter of the Borrower;

(3) The resolution of the relevant power organ of the Borrower consenting to the Borrower’s execution and performance of this Contract;

(4) The signature specimen of the legal representative of the Borrower for the execution of this Contract, or the power of attorney and signature specimen of an authorized signatory of the Borrower;

(b) The Borrower has opened the Loan Account and the Deposit Account in accordance with Article 13;

7.2 The conditions precedent for each drawdown (inclusive of the first drawdown) of the Borrower shall include the following:

(a) The representations of the Borrower as set forth in Article 14 hereof are true and valid;

(b) The Borrower is not in breach of the covenants and warranties set forth in Article 14 hereof;

(c) No event of default has occurred under Article 19 hereof.

ARTICLE VIII
DRAWDOWN

8.1 Drawdown Plan

The Borrower’s drawdown plan hereunder with respect to the Loan Commitment Amount shall be as follows:

February 1, 2008, USD 2.4 billion

If the Borrower intends to change its drawdown plan, it shall give a 2 Business Days prior notice to the Lender.

8.2 Drawdown Procedure

The Borrower shall submit to the Lender an irrevocable drawdown application (the form of which is attached hereto as Annex 1) 2 Business Days prior to the drawdown date. Upon receipt and review and approval of said drawdown application, the Lender shall on the drawdown date transfer the drawdown amount applied for by the Borrower from the Loan Account of the Borrower into the Deposit Account of the Borrower, or, shall directly disburse the said amount into the account designated in the drawdown application by the party making the drawdown.

8.3 Drawdown Period

(a) The Drawdown Period under this Contract shall be 1 month, beginning as from January 31, 2008 and ending as of February 29, 2008.

(b) The Borrower may make drawdowns during the Drawdown Period only. Upon expiry of the Drawdown Period, the undrawn portion of the Loan Commitment Amount shall be cancelled automatically.

(c) The Drawdown Period shall not be extended without the consent of the Lender. Should the Borrower need to extend the Drawdown Period, it shall submit to the Lender a written application therefor 30 days before the expiry of the Drawdown Period. Only upon written consent of the Lender shall the Drawdown Period be extended.

ARTICLE IX
DISBURSEMENT OF FUNDS

The basis for Fund Disbursements to be produced by the Borrower shall include the Statement on the Status of Use of the CDB Loan, and the Letter on the Drawdown Plan for the Partial Rome Equity Acquisition Project, etc.

ARTICLE X
REPAYMENT OF PRINCIPAL AND INTEREST

10.1 Modality of Principal Repayment

The Borrower shall fully repay all of the Loan Balance on the date of January 31, 2011 (“Principal Repayment Date”).

10.2 The Lender will issue the Principal and Interest Repayment Notice to the Borrower prior to the principal and interest repayment date.

10.3 The Borrower shall, 2 Business Days prior to the principal and interest repayment date, remit the amounts payable into an account designated by the Lender.

10.5 The Lender may on its own debit the corresponding amount from the Deposit Account opened by the Borrower with the Lender on the principal and interest repayment date.

ARTICLE XI
PREPAYMENT

This article shall only apply to the circumstance where the Borrower voluntarily makes prepayments with respect to the loan under this Contract.

11.1 The Borrower may not make any prepayment without the consent of the Lender.

11.2 If the Borrower needs to make a prepayment, it shall submit to the Lender a 15 days prior written application to that effect.

11.4 The prepayment amounts shall first be applied towards the repayment of the last maturing loan amount, i.e. the repayment shall be effected in a reversed order.

11.5 The prepayment application of the Borrower shall be irrevocable. No drawdown applications shall be made subsequently with respect to prepaid amounts.

ARTICLE XII
ORDER OF REPAYMENT

(a) payment of indemnity and liquidated damages;

(b) payment of due penalty interest;

(c) payment of Interest on Overdue Payments;

(d) payment of overdue principal ;

(e) payment of due fees;

(f) payment of due interest;

(g) payment of due principal.

ARTICLE XIII
ACCOUNT MANAGEMENT

The Borrower shall open the Loan Account and the Deposit Account with the handling entity of the Lender prior to January 31^st, 2008, for the purpose of loan disbursement, settlement, and loan principal and interest recovery by the Lender.

ARTICLE XIV
REPRESENTATIONS AND WARRANTIES OF
BORROWER AND SINGAPORE SPV1

The Borrower represents and warrants as follows:

(a) It is a lawfully established legal person, possesses a valid business license, and owns its assets and operates its business in accordance with law;

(b) It has completed all internal authorization procedures necessary for the execution of this Contract; the person signing this Contract is a duly authorized representative of it; and this Contract shall become legally binding on it immediately upon its effectiveness;

(c) The financial reports furnished by it to the Lender have been prepared in accordance with currently effective laws, regulations and accounting standards and have truthfully and accurately reflected its financial position as of the relevant reporting year;

(d) All other materials furnished by it to the Lender are true and accurate and all submitted copies are in conformity with their originals;

(e) It confirms that its loan Project has obtained approval, consent and registration from National Development and Reform Commission, State Administration of Foreign Exchange and other relevant examination and approval authorities and it further guarantees that all approval documents will be provided prior to its start of use of the Loan Funds.

Singapore SPV1 represents, warrants and undertakes as follows:

(a) It is a company established in accordance with local law, and owns its assets and operates its business in accordance with law;

(b) It has completed all internal authorization procedures necessary for the execution of this Contract; the person signing this Contract is a duly authorized representative of Borrower; and this Contract shall become legally binding on the Borrower immediately upon its effectiveness;

(d) During the term of this Contract, it shall not issue any new shares without the consent of the Lender.

ARTICLE XV
INSPECTION ON THE USE STATUS OF THE FUNDS

Upon disbursement of a Loan Fund, the Lender shall be entitled to inspect, either onsite or offsite, the use of the Loan Fund hereunder. The Borrower shall, in accordance with the requirement of the Lender, submit to the handling entity of the Lender an Implementation Status Report on the use of the Loan Funds together with corresponding fund use vouchers. The Lender may inspect on-site the use status of the loan and the Borrower shall actively cooperate with the Lender on the inspection and shall, in accordance with the requirement of the Lender, provide relevant materials. The content of the inspection of the Lender shall include the following:

(a) Whether the purpose of use of the loan has been changed; whether upon disbursement the loan has been channeled into domestic securities trading, futures trading, real estate business operation, venture capital and other areas prohibited by the Lender;

(b) Whether the Project has proceeded smoothly and whether there has occurred any material accident;

(c) Whether the cumulative completed volume of the acquisition matches the cumulative financial expenditures of the Project;

(d) Whether the estimated total investment can be controlled within the budget range.

If the Lender finds that smooth completion of the Loan Project has been affected by Borrower’ misuse of the funds, it may require the Borrower to rectify the same within a set time limit.

ARTICLE XVI
INFORMATION DISCLOSURE

16.3 The Lender shall be entitled to request the Borrower to provide essential dynamic information on the use of funds over the period from the approval of the Project to the termination of contract, together with relevant fund use vouchers. The Borrower shall provide the same without delay.

ARTICLE XVII
SUPERVISION OF THE LOAN PROJECT

The Lender may periodically visit the Borrower and the loan Project and may gather information on the loan Project through the following means:

(a) to hear reports of the key responsible person/s of the Borrower on the status of the loan Project;

(b) to inspect the financial reports, accounting vouchers, accounting books and like financial and accounting documentation and other relevant documentation of the Borrower or the loan Project;

(c) to verify the financial and fund status of the Borrower.

The Borrower shall cooperate with the Lender on the above activities.

ARTICLE XVIII
RIGHTS AND OBLIGATIONS OF THE BORROWER

18.1 The Borrower shall have the right to request the Lender to extend the loan in accordance with this Contract;

18.2 The Borrower shall effect drawdowns in accordance with the Drawdown Plan hereunder;

18.3 The Borrower shall repay the principal and interest of the loan in accordance with this Contract;

18.5 The Borrower shall promptly handle and complete all formalities in accordance with relevant foreign exchange administration regulations of the state;

18.6 The Borrower shall obtain prior written consent of the Lender with respect to any transfer of its operating assets amounting to 50% or above of its total assets;

18.7 In the event of a merger, spin-off or other ownership or structural change, the Borrower shall provide the Lender a 30 days notice of the relevant plan of change and must obtain the Lender’s consent thereto. No such plan of change shall prejudice the legitimate rights and interest of the Lender under this Contract;

18.8 If the Borrower provides guarantee to a third party and if the cumulative guarantee amount threatens to exceed 70% of its net assets stated in the financial statements of the most recent fiscal year, the Borrower must obtain from the Lender its written consent thereto.

18.9 The Borrower shall not apply for loans with the Lender by way of false reporting, etc.

18.10 The Borrower shall cooperate with the Lender on its credit rating work and shall provide relevant documents in accordance with the request of the Lender.

18.11 The Borrower shall within 10 days of the occurrence of the conduct of acquisition provide information on the acquired shares and the use of the Loan Funds.

18.12 Any money or other derivatives transactions undertaken by the Borrower under this Contract shall obtain the consent of the Lender.

ARTICLE XIX
[SHARE CONVERSION OPTION ]

19.1 Unless otherwise set forth herein, the Borrower shall maintain its 100% interest, held by it directly or indirectly, in [HK SPV], [Singapore SPV1] and [Singapore SPV2] .

19.2 The Borrower and [Singapore SPV1] agree that upon disbursement of the Loan Funds, the Lender shall have the right (but not the obligation) to serve one or multiple notices on the Borrower and [Singapore SPV1] (“Exercise Notice”) and to thereby request converting all or part of the Loan Balance under this Contract into shares of [Singapore SPV1] on a repayment date or earlier (“Share Conversion Right”). For the purpose of the foregoing, the Lender shall in its served notice specify the amount of the Loan Balance in respect of which it intends to exercise the Share Conversion Right (“Exercise Amount”), and such Exercise Amount shall be subject to a deduction of the Capital Interest that has been added, for the purpose of the calculation of Capital Interests, as from the drawdown date of the Loan Fund (“Net Exercise Amount”).

19.3 Upon completion of the exercise of the Share Conversion Right, the number of the shares in [Singapore SPV1] obtainable by the Lender as a result of its exercise of such Share Conversion Right (“Exercised Shares”) shall be determined in accordance with the following formula:

[Number of Exercised Shares] = Net Exercise Amount÷US$2,400,000,000 ÷ (12%×
Total Number of Shares Issued by [Singapore SPV1] on the date of execution of this Contract÷88%)].

19.4 [Singapore SPV1] shall (and the Borrower shall procure that [Singapore SPV1]) shall, at its own expense, issue the Exercised Shares to the Lender in accordance with this Article immediately upon receipt of the Exercise Notice served by the Lender.

19.5 Unless and until the Lender has, with respect to the Exercise Amount, been formally confirmed as the holder of the Exercised Shares in accordance with the laws of its place of incorporation, neither the exercise of the Share Conversion Right nor the serving of the Exercise Notice shall affect the Borrower’s obligations with respect to the Exercise Amount under other provisions of this Contract.

19.6 Upon completion of the exercise of the Share Conversion Right in accordance with this Article, the Borrower shall, to the extent of the Exercise Amount, be accordingly released from its repayment obligation under this Contract, and [Singapore SPV1] shall also be accordingly released from its repayment obligation under the company loan extended by the Borrower to [Singapore SPV1] through [HK SPV] with the Loan Funds hereunder.

19.7 The Borrower and [Singapore SPV1] shall (and the Borrower shall procure that [Singapore SPV1] shall), at its own expense, as directed by the Lender, take all actions and execute all documents necessary for the consummation of the share conversion under this Article (including without limitation all relevant approvals, registrations, filings and consents and other procedures), and shall complete all actions required by the laws of the place of incorporation of [Singapore SPV1].

ARTICLE XX
EVENTS OF DEFAULT AND BREACH OF
CONTRACT LIABILITIES OF BORROWER

20.1 If the Borrower or [Singapore SPV1] breaches the provisions of Articles 15, 16, 17,18 or 19 hereof, or if any of the Borrower’s representations or warranties set out in Article 14 is found inaccurate or misleading, the Lender shall be entitled to request the Borrower to rectify the same within a set time limit. In case the Borrower fails to so rectify within such time limit, the Lender shall have the right to take one or more of the following measures:

(a) to cease the disbursement of Loan Funds;

(b) to declare accelerated maturity of all or part of the Loan Funds, and to simultaneously request the Borrower to repay the principal and interest of the disbursed portion of the loan within a set time limit. Moreover, the Lender shall have the right to directly deduct the repayable amounts from the accounts opened by the Borrower (By executing this Contract, the Borrower has authorized the Lender to exercise such right to directly deduct the repayable amounts);

(c) to unilaterally terminate this Contract.

20.2 If the Borrower breaches provisions other than those set forth in 20.1 above, the Lender shall have the right to request the Borrower to rectify the same within a set time limit. If the Borrower fails to so rectify within such time limit, the Lender shall have the right to request the Borrower to pay a liquidated damages equal to 0.5% of the Loan Balance as of the time of occurrence of the breach, provided that if such liquidated damages are not sufficient to cover the financial losses suffered by the Lender, the Lender shall have the right to request the Borrower to compensate for the same.

20.3 If an act of breach of the Borrower or [Singapore SPV1] results in a litigation, the Borrower or [Singapore SPV1] shall assume the attorney’s fee incurred by the Lender in connection with the litigation.

ARTICLE XXI
MODIFICATION AND TERMINATION OF CONTRACT

21.1 Unless otherwise set forth herein, neither party shall unilaterally modify or terminate this Contract upon its effectiveness. Any amendment to or modification of this Contract shall be mutually agreed upon by the Lender and Borrower through consultations and shall be concluded in a written instrument.

21.2 The Lender may partially or wholly assign its rights hereunder to a third party. The Lender shall notify the Borrower and [Singapore SPV1] of such assignment.

21.3 If, due to a change of the laws, regulations or policies of the state, all or part of the provisions of this Contract become inconsistent with the requirements of such laws, regulations or policies, the Borrower and the Lender shall promptly consult each other and shall amend relevant provisions as soon as possible.

21.4 If, due to a force majeure event, either the Borrower or the Lender/a party hereto is unable to perform the Contract, the relevant party shall promptly notify the other party/ies and shall take effective measures to prevent the widening of the losses. The party

affected by the force majeure event shall, within 20 days of the occurrence of the event, provide the other party/ies with details on such force majeure event as well as the certificate issued by relevant governmental authorities on the occurrence and impact of said force majeure event. The parties hereto/the Borrower and the Lender shall promptly consult each other on the measures to deal with such force majeure event.

ARTICLE XXII
ENTIRE CONTRACT

All supplements, amendments or changes to this Contract shall be an integral part of the Contract.

ARTICLE XXIII
CONFIDENTIALITY

Without the consent of all parties hereto, none of the parties shall disclose to a third party the content of this Contract or the business secrets of the other party/ies.

ARTICLE XXIV
GOVERNING LAW AND RESOLUTION OF DISPUTES

This Contract shall be governed by and construed in accordance with the laws of PRC.

Disputes between the Borrower and the Lender/ the parties hereto arising out of the performance of this Contract shall be resolved through consultations between the parties. Failing such resolution, the dispute shall be resolved through litigation before the People’s Court of the domicile of the Lender.

ARTICLE XXV
MISCELLANEOUS

25.1 Matters not covered by this Contract shall be dealt with by the Borrower and the Lender / all parties hereto through consultations or shall be dealt with according to the stipulations of relevant laws and regulations of the state.

25.2 This Contract is made in three originals, with the Borrower, the Lender and [Singapore SPV1] each holding one copy thereof; and in eight duplicates, with the Borrower holding two copies and the Lender holding six copies thereof.

ARTICLE XXVI
EFFECTIVENESS AND EXPIRY OF THE CONTRACT

This Contract shall become effective as from the date on which it has been executed and sealed by the Borrower and the Lender and further been executed by [Singapore SPV1], and shall expire on the date of full repayment of the entire debt hereunder.

Borrower:	(Company Seal or Special Seal for Contracts)

Legal Representative	/s/ Zhang Zhankui
	Deputy Director, Financial Department
(or Authorized Representative)

	January 30, 2008

Opening Bank & Account No. of Borrower:

Lender	(Special Seal for Contracts)

Legal Representative	/s/ Xu Qiying

(or Authorized Representative)

	January 30, 2008

[Singapore SPV1]:

Representative	/s/ Zhao Zhengang
	Director
(or Authorized Representative)
	/s/ Wang Wenfu
	Director

	January 30, 2008

Place of Execution: Xi Cheng District, Beijing

ANNEX 1

DRAWDOWN APPLICATION

(No. )

China Development Bank:

Pursuant to the Foreign Exchange Loan Contract between our Company and your Bank and [Singapore SPV1] dated (mm) (dd) (yy)(Contract No. ), we hereby irrevocably file the following loan drawdown application with the Bank:

· Drawdown Amount: ;

· Drawdown Date: (mm) (dd) (yy);

· Purpose of Use of Drawdown Fund: ;

· We hereby authorize the Bank to transfer the said amount into the Deposit Account opened by us with the Bank, the Account No. of which is ;

· We hereby authorize the Bank to directly disburse on the Drawdown Date the said amount to , whose opening bank and account number are .

Borrower:
	(company seal or special seal for contracts)

Legal Representative

(or Authorized Representative):

		(signature)

Date: (mm) (dd) (yy)

EX-99.5 6 a08-4773_1ex99d5.htm EX-99.5

Exhibit 99.5

		LIMITED LIABILITY PARTNERSHIP
		1100126372008511515

EXECUTION VERSION

US$7,000,000,000

FACILITY AGREEMENT

Dated February 2008

for

ORIENTAL PROSPECT PTE. LTD.

as Borrower

arranged by

CHINA DEVELOPMENT BANK

with

CHINA DEVELOPMENT BANK

acting as Agent

and

CHINA DEVELOPMENT BANK

acting as Security Agent

FACILITY AGREEMENT

CONTENTS

Clause		Page

1.	Definitions and Interpretation	1
2.	The Facility	14
3.	Purpose	14
4.	Conditions of Utilisation	14
5.	Utilisation - Loans	16
6.	Repayment	17
7.	Prepayment and Cancellation	17
8.	Interest	21
9.	Interest Periods	22
10.	Changes to the Calculation of Interest	22
11.	Fees	24
12.	Tax Gross Up and Indemnities	25
13.	Increased Costs	27
14.	Other Indemnities	28
15.	Mitigation by the Lenders	30
16.	Costs and Expenses	30
17.	Representations	32
18.	Information Undertakings	35
19.	General Undertakings	38
20.	Events of Default	43
21.	Changes to the Lenders	47
22.	Changes to the Borrower	50
23.	Role of the Agent and the Arranger	51
24.	Conduct of Business by the Finance Parties	56
25.	Sharing among the Finance Parties	57
26.	Payment Mechanics	59
27.	Set-off	62
28.	Application of Proceeds	62
29.	Notices	63
30.	Calculations and Certificates	65
31.	Partial Invalidity	65

32.	Remedies and Waivers	65
33.	Amendments and Waivers	66
34.	Counterparts	67
35.	Governing Law	68
36.	Enforcement	68

SCHEDULE 1 THE ORIGINAL PARTIES		69
	Part I The Borrower	69
	Part II The Original Lenders	70

SCHEDULE 2 CONDITIONS PRECEDENT TO INITIAL UTILISATION		71

SCHEDULE 3 REQUESTS		73

SCHEDULE 4 FORM OF TRANSFER CERTIFICATE		74

SCHEDULE 5 TIMETABLES		76

THIS AGREEMENT is dated February 2008 and made between:

(1) ORIENTAL PROSPECT PTE. LTD. (Company Registration Number 200801581H) (the “Borrower”);

(2) CHINA DEVELOPMENT BANK as mandated lead arranger (the “Arranger”);

(3) THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 (The Original Parties) as lenders (the “Original Lenders”);

(4) CHINA DEVELOPMENT BANK as agent of the other Finance Parties (the “Agent”); and

(5) CHINA DEVELOPMENT BANK as security agent for the Secured Parties (the “Security Agent”).

IT IS AGREED as follows:

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this Agreement:

“Acquisition” means the acquisition by the Company of shares in the Target by way of market purchases up to a maximum of 14.99% of the issued outstanding share capital of the Target.

“Acquisition Costs” means all stamp duties and registration expenses incurred by the Borrower in connection with the Acquisition or the Transaction Documents.

“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.

“Alcoa Investment Documents” means the Alcoa Loan Agreement and the Alcoa Security Document.

“Alcoa Loan Agreement” means the loan agreement in an amount of up to $1,200,000,000 (plus accrued and capitalised interest) dated after the date of this Agreement and entered into between the Borrower and Alcoa Inc and pursuant to which Alcoa Inc makes available certain funds to the Borrower for purposes of financing the acquisition of Target Shares by the Company.

“Alcoa Security Document” means the security document dated on or about the date of the Alcoa Loan Agreement and pursuant to which the Company grants security over a part of its shareholding in Target (together with associated cash and dividends relating thereto) in favour of Alcoa Inc in a form approved by the Agent.

“Authorisation” means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration in each case required by law or regulation.

“Availability Period” means the period from and including the date of this Agreement to the date falling six month after the date of this Agreement.

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

(a) the amount of its participation in any outstanding Loans under the Facility; and

(b) in relation to any proposed Utilisation, the amount of its participation in any Loans that are due to be made under the Facility on or before the proposed Utilisation Date.

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

“Borrower Debenture” means the debenture granted by the Borrower in favour of the Security Agent, in form and substance acceptable to the Security Agent and the Agent (each acting reasonably).

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

(a) the interest (less the Margin) 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, Hong Kong, Singapore and Beijing.

“Cash Pay Interest” means:

(i) In respect of each Interest Period ending prior to the PIK Limit Date, 1 per cent. per annum;

(ii) In respect of the Interest Period ending on the PIK Limit Date, the aggregate of:

(a) 1 per cent. per annum; and

(b) the aggregate amount by which (x) the sum of (i) the PIK Interest Portion accrued in respect of such Interest Period and (ii) the total

aggregate amount of all PIK Interest Portion capitalisations made pursuant to Clause 8.3 (PIK Interest Portion) exceeds (y) the PIK Limit Amount; and

(iii) In respect of each Interest Period ending after the PIK Limit Date, the total interest payable pursuant to Clause 8.1 (Calculation of interest).

“Charged Property” means all the assets of the Borrower which from time to time are, or are expressed to be, the subject of the Transaction Security.

“Commitment” means:

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

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

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

“Company” means Shining Prospect Pte. Ltd.

“Confidentiality Undertaking” means a confidentiality undertaking substantially in a recommended form of the LMA from time to time or in any other form agreed between the Borrower and the Agent.

“Default” means an Event of Default or any event or circumstance specified in Clause 20 (Events of Default) which would (with the expiry of a grace period or the giving of notice or any combination of any of the foregoing) be an Event of Default.

“Delegate” means any delegate, agent, attorney or co-trustee appointed by the Security Agent.

“Disruption Event” means either or both of:

(a) a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

(b) the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

(i) from performing its payment obligations under the Finance Documents; or

(ii) from communicating with other Parties in accordance with the terms of the Finance Documents,

(and which (in either such case)) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

“Event of Default” means any event or circumstance specified as such in Clause 20 (Events of Default).

“Facility” means the term loan facility made available under this Agreement as described in Clause 2 (The Facility).

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

“Fee Letter” means any letter or letters (if any) dated on or after the date of this Agreement between the Arranger and the Borrower (or the Agent and the Borrower or the Security Agent and the Borrower) setting out any of the fees referred to in Clause 11 (Fees).

“Finance Document” means this Agreement, the Security Documents, any Hedging Agreement, the Intercreditor Agreement, the Guarantee, the Sponsor Undertaking, any Fee Letter and any other document designated as a “Finance Document” by the Agent and the Borrower.

“Finance Party” means the Agent, the Arranger, the Security Agent, a Lender or a Hedge Counterparty.

“Financial Indebtedness” means (without double-counting) any indebtedness for or in respect of:

(a) moneys borrowed;

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

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

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

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

(f) any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;

(g) any derivative transaction 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) 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;

(i) any amount raised by the issue of redeemable shares;

(j) any amount of any liability under an advance or deferred purchase agreement if one of the primary reasons behind the entry into this agreement is to raise finance; and

(k) (without double counting) the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (j) above.

“Financing Costs” means the aggregate of:

(a) amounts in the nature of interest payable by an Obligor under this Agreement (including default interest); and

(b) all commitment, agency and other fees payable (but without double counting and excluding any arrangement or upfront fee) by the Borrower under this Agreement.

“Funds Flow” means the funds flow setting out the movement of cash and purchases of Target Shares in connection with the Acquisition.

“GAAP” means generally accepted accounting principles in Singapore or such other jurisdiction as may be agreed.

“Group” means the Borrower and the Parent.

“Group Structure Chart” means the group structure chart showing:

(a) all holding companies of the Borrower and the Borrower, including current name and company registration number, its jurisdiction of incorporation and/or establishment and a list of shareholders;

(b) any person in which any member of the Group holds shares in its issued share capital or equivalent ownership interest of such person.

“Guarantee” means the guarantee dated on or about the date of this Agreement and issued in favour of the Lenders by the Guarantor and guaranteeing the obligations of the Borrower under this Agreement in an agreed form satisfactory to the Agent (acting reasonably).

“Guarantor” means Aluminum Corporation of China.

“Hedge Counterparty” means a person which has become a party to the Intercreditor Agreement as a Hedge Counterparty in accordance with the provisions of the Intercreditor Agreement.

“Hedging Agreement” means any master agreement, confirmation, schedule or other agreement in agreed form entered into or to be entered into by the Borrower and a Hedge Counterparty for the purpose of hedging interest rate liabilities and/or any exchange rate or other risks in relation to the Facility in accordance with a Hedging Letter.

“Hedging Letter” means any letter (if any) agreed (or to be agreed) between the Agent on behalf the Lenders and the Borrower setting out the conditions on which the Borrower may enter into any Hedging Agreement from time to time.

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

“Intercreditor Agreement” means the intercreditor agreement dated the same date as this Agreement and made between, amongst others, the Borrower and China Development Bank as Security Agent.

“Interest Payment Date” means each date on which Interest is payable pursuant to Clause 8.2 (Payment of interest).

“Interest Period” means, in relation to a Loan, each period determined in accordance with Clause 9 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 8.4 (Default interest).

“Investments” means

(a) any stocks, shares, debentures, securities and certificates of deposit;

(b) all interests in collective investment schemes; and

in each case whether held directly by or to the order of the Borrower or by any trustee, nominee, fiduciary or clearance system on its behalf.

“Investor” means the Guarantor.

“Joint Venture” means any joint venture entity, whether a company, unincorporated firm, undertaking, association, joint venture or partnership or any other entity.

“Legal Reservations” means the principle that equitable remedies may be granted or refused at the discretion of a court, the limitation on enforcement by laws relating to insolvency, liquidation, reorganisation, court schemes, moratoria, administration and other laws generally affecting the rights of creditors, and similar principles, rights, defences and limitations under laws of any applicable jurisdictions; the time barring of

claims under any applicable limitation laws, the possibility that a court may strike out provisions as being invalid for reasons of oppression, undue influence or similar reasons, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of stamp duty may be void, defences of set-off or counterclaim and similar principles or limitations under laws of applicable jurisdictions; and general principles, reservations or qualifications in each case as to matters of law contained in any legal opinions delivered to the Agent under any provision or otherwise in connection with any Senior Finance Documents.

“Lender” means:

(a) any Original Lender; and

(b) any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 21 (Changes to the Lenders),

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

“LIBOR” means, in relation to any Loan:

(a) the applicable Screen Rate; or

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

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

“LMA” means the Loan Market Association.

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

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

“Margin” means in relation to any Loan 1.00 per cent. per annum.

“Market Purchase Plan” means any document setting out certain steps for the execution of market purchases of Target Shares by the Borrower in a form agreed

between the Lenders and the Borrower and as submitted to the Lenders by the Borrower prior to the date of this Agreement.

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

(a) the business, operations or financial condition of the Group taken as a whole;

(b) the ability of the Borrower to perform its payment obligations under the Finance Documents; or

(c) subject to Legal Reservations and Perfection Requirements the validity or enforceability of the Finance Documents taken as a whole or the rights or remedies of the Finance Parties under the Finance Documents taken as a whole.

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

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

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

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

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

“Obligors” means the Borrower, the Guarantor and the Company.

“Onshore Loan Agreements” means the two loan agreements between China Development Bank and Aluminum Corporation of China dated on or about the date of this Agreement that are in an aggregate of or about US$6,000,000,000.

“Party” means a party to this Agreement.

“Perfection Requirements” means the making or the procuring of the appropriate registrations, filings, notarisations, stampings and/or notifications of the Security Documents.

“PIK Limit Date” means the last day of the Interest Period when the sum of (i) the aggregate amount of all PIK Interest Portion capitalisations made pursuant to Clause 8.3 (PIK Interest Portion) and (ii) the amount of the accrued PIK Interest Portion in respect of the relevant Interest Period exceeds the PIK Limit Amount.

“PIK Limit Amount” means $595,000,000.

“PIK Interest Portion” means the interest rate payable in respect of each Interest Period and calculated pursuant to Clause 8.1 (Calculation of interest) less 1 per cent..

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

“Receiver” means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Property.

“Reference Banks” means the principal offices of HSBC, BNP Paribas and Citibank N.A. or such other banks as may be agreed by the Agent and the Borrower.

“Relevant Interbank Market” means the London interbank market.

“Relevant Jurisdiction” means:

(a) the jurisdiction of incorporation of each member of the Group; and

(b) the jurisdiction of the express governing law under any Security Document to which such member of the Group is party.

“Repayment Date” means 3 years after the first Utilisation Date, but if any such date is not a Business Day, then that Repayment Date shall be deemed to be the immediately succeeding Business Day.

“Repeating Representations” means each of the representations set out in Clauses 17.1 (Status) to 17.6 (Governing law and enforcement) or Clause 17.7(a) (No default).

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

“Secured Obligations” means all obligations at any time due, owing or incurred by any Obligor to any Secured Party under the Finance Documents, whether present or future, actual or contingent (and whether incurred solely or jointly and whether as principal or surety or in some other capacity).

“Secured Parties” has the meaning set out in the Intercreditor Agreement.

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

“Security Documents” means:

(a) the Borrower Debenture;

(b) the Borrower Debenture (as defined in the Senior Facility Agreement);

(c) the security agreement entered into by the Company creating security over the Debt Service Reserve Account (if any), as defined in the Senior Facility Agreement;

(d) the security agreements creating security over the Borrower’s rights under any Hedging Agreement; and

(e) charge over all shares in Target held by the Company from time to time,

together with any other document entered into by any Obligor creating or expressed to create any Security over all or any part of its assets in respect of the obligations of any of the Obligors under any of the Finance Documents.

“Selection Notice” means a notice substantially in the form set out in Part II of Schedule 3 (Requests) given in accordance with Clause 9 (Interest Periods).

“Senior Facility Agreement” means the $7,000,000,000 senior secured facility agreement dated on the same date as this Agreement and entered into between, amongst others, the Company as borrower and China Development Bank as Lender.

“Senior Finance Documents” means the Finance Documents as defined in the Senior Facility Agreement.

“Settlement Date” shall have the meaning given to it in the Senior Facility Agreement.

“Specified Time” means a time determined in accordance with Schedule 5 (Timetables).

“Sponsor Undertaking” means the undertaking from the Guarantor regarding the indirect ownership of the Borrower in favour of the Lenders and dated on or about the date hereof.

“Structural Intra-Group Loans” means any loans made by the Borrower to the Company for purposes of downstreaming the proceeds of Onshore Loan Agreements.

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

(a) which is controlled, directly or indirectly, by the first mentioned company or corporation;

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

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 direct its affairs and/or to control the composition of its board of directors or equivalent body.

“Target” means Rio Tinto PLC.

“Tax” means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).

“Total Commitments” means the aggregate of the total Commitments being $7,000,000,000 at the date of this Agreement.

Transaction Security” means the Security created or expressed to be created in favour of the Security Agent pursuant to the Security Documents.

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

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

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

(b) the date on which the Agent executes the Transfer Certificate.

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

“US Lender” means any person or financial institution acting through a branch or office located in the United States of America.

“Utilisation” means a utilisation of the Facility.

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

“Utilisation Request” means a notice substantially in the form set out in Part I of Schedule 3 (Requests).

“VAT” means value added tax as provided for in the Value Added Tax Act 1994 and any other tax of a similar nature.

1.2 Construction

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

(i) the “Agent”, the “Arranger”, the “Security Agent”, any “Finance Party”, any “Secured Party”, any “Lender”, any “Obligor” or any

“Party” shall be construed so as to include its successors in title, permitted assigns and permitted transferees and, in the case of the Security Agent, any person for the time being appointed as Security Agent or Security Agents in accordance with this Agreement;

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

(iii) a “Finance Document” or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended, replaced or restated;

(iv) “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;

(v) a “person” includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);

(vi) a “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but if not having the force of law being one with which it is the practice in the jurisdiction of the relevant person to comply with) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;

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

(viii) a time of day is a reference to London time.

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

(c) Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.

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

1.3 Currency Symbols and Definitions

“$” and “dollars” denote the lawful currency of the United States of America.

1.4 Third party rights

(a) Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Contracts (Rights of Third Parties)

Act 1999 (the “Third Parties Act”) to enforce or to enjoy the benefit of any term of this Agreement.

(b) Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.

1.5 Certificates

No personal liability shall attach to any director or officer of an Obligor for any representation or statement made in any or for any certificate or notice or request given by any such director or officer. Any such director or officer may rely on and enforce this provision notwithstanding Clause 1.4(a).

SECTION 2

THE FACILITY

2. THE FACILITY

2.1 The Facility

Subject to the terms of this Agreement, the Lenders make available to the Borrower a dollar term loan facility 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.

3. PURPOSE

3.1 Purpose

The Borrower shall apply all amounts borrowed by it under the Facility towards the financing of market purchases of shares in Target by the Company up to a maximum of 14.99% of the outstanding share capital of Target.

3.2 Monitoring

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

4. CONDITIONS OF UTILISATION

4.1 Initial conditions precedent

The Borrower may not make a Utilisation unless the Agent has received or is satisfied that it will receive, on the Utilisation Date all of the documents and other evidence listed in Schedule 2 (Conditions precedent) in form and substance satisfactory to the Agent (acting reasonably). The Agent shall notify the Borrower and the Lenders promptly upon being so satisfied.

4.2 Further conditions precedent

Subject to Clause 4.1 (Initial Conditions Precedent), the Lenders will only be obliged to comply with Clause 5.4 (Lenders’ participation) in relation to any Utilisation, if on the date of the Utilisation Request and on the proposed Utilisation Date:

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

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

4.3 Deemed Utilisation

(a) At any time from the date of this Agreement, the Agent may (if instructed by all Lenders) unless the Borrower has specifically requested in writing otherwise advance one or more Loans under the Facility for application by the Borrower or the Company (as applicable) in accordance with the Market Purchase Plan.

(b) Any Loans to be advanced under (a) above following instructions from all Lenders shall not be subject to any other conditions to Utilisation in this Clause 4 (including, without limitation, the delivery of a Utilisation Request by the Borrower) but shall in all other respects and for purposes of all other provisions of this Agreement be deemed to constitute a Utilisation made under this Agreement and any Loans so advanced shall be subject to the terms and conditions of this Agreement as if it had been made pursuant to Clause 4.1 (Initial Conditions Precedent) to Clause 4.2 (Further Conditions Precedent).

(c) The Borrower:

(i) undertakes to procure that the Company applies the proceeds of all Loans advanced by the Lenders pursuant to (a) above solely towards purchases of Target Shares in accordance with the Market Purchase Plan and does not make any market purchases of Target Shares other than as set out in the Market Purchase Plan without the prior written consent from the Majority Lenders; and

(ii) confirms that, notwithstanding that the advance of Loans under (a) above may be made unilaterally by the Lenders, any such Loans advanced pursuant to (a) above shall constitute a direct borrowing of the Borrower and shall be subject to the same terms and conditions as any other Loan advanced by the Lenders pursuant to Clause 4.1 (Initial Conditions Precedent) to Clause 4.2 (Further Conditions Precedent) including, without limitation, in respect of Clauses 6 (Repayment) and 8 (Interest).

SECTION 3

UTILISATION

5. UTILISATION - LOANS

5.1 Delivery of a Utilisation Request

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

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 the Facility;

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

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

(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 dollars.

(b) The amount of the proposed Loan must be an amount which is not more than the Available Facility and which is a minimum of $30,000,000, or if less, 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.

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

(c) The Agent shall notify each Lender of the amount of each Loan and the amount of its participation in that Loan, in each case by the Specified Time.

5.5 Cancellation of Commitment

The Total Commitments shall be immediately cancelled at the end of the Availability Period for the Facility.

SECTION 4

REPAYMENT, PREPAYMENT AND CANCELLATION

6. REPAYMENT

6.1 Repayment of Loans

(a) The Borrower shall repay the Loans made to it in full on the Repayment Date.

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

7. PREPAYMENT AND CANCELLATION

7.1 Illegality

If, at any time after it became party to this Agreement, it is or within 3 months will become unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Loan:

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

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

(c) the Borrower shall to the extent of the illegality repay that Lender’s participation in the Loans made to the Borrower on the last day of the Interest Period for each Loan occurring after the Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law), provided that on or prior to such date the Borrower shall have the right to require that Lender to transfer (and such Lender shall transfer if so required) its affected Commitments and participations in Loans to another person nominated for such purpose by the Borrower which has agreed to purchase such rights and obligations.

7.2 Change of control and ownership of Target Shares

(a) In the event that Parent ceases to (directly or indirectly) control the Borrower or Aluminum Corporation of China ceases to (directly or indirectly) control the Parent, or in the event that Company fails to obtain ownership of shares in the Target acquired pursuant to the Sale and Purchase Agreement or is compelled by law or regulation which is complied with in the ordinary course to dispose of shares in the Target acquired pursuant to the Sale and Purchase Agreement, then in any such event:

(i) the Borrower shall promptly notify the Agent upon becoming aware of such event;

(ii) a Lender shall not be obliged to fund a Utilisation;

(iii) if the Majority Lenders so require, the Agent shall, by not less than 30 days notice to the Borrower, cancel the Total Commitments and declare

all outstanding Loans, together with accrued interest and all other amounts accrued under the Finance Documents, immediately due and payable, at which time the Total Commitments will be cancelled and all such outstanding amounts will become immediately due and payable.

(b) For the purpose of paragraph (a) above “control” means the holding of 40 per cent. or more of the issued share capital of the Borrower by the Guarantor or such lesser percentage as may be agreed by the Borrower and the Majority Lenders.

7.3 Disposal Proceeds

(a) For the purposes of this Clause 7.3:

“Disposal” means a sale, lease, transfer or other disposal by a person of any interest in the shares of the Target (whether by a voluntary or involuntary single transaction or series of transactions) pledged to the Finance Parties;

“Net Disposal Proceeds” means the cash proceeds of any Disposal of the shares of the Target pledged to the Finance Parties after deducting:

(i) any fees, costs and expenses which are incurred by the Borrower and/or the Company in connection therewith; and

(ii) any Tax incurred and required to be paid or reserved against by the Borrower and/or the Company in connection with that Disposal (as reasonably determined by the Borrower and taking into account any available credit deduction or allowance).

(b) The Borrower shall, unless the Majority Lenders otherwise agree, after the discharge in full of all liabilities under the Senior Facility Agreement only, prepay the Loans in an amount equal to all Net Disposal Proceeds received by the Borrower;

(c) Any prepayment made under this Clause shall be applied on the last day of the Interest Period for a Loan next to occur.

7.4 Voluntary cancellation

The Borrower may, if it gives the Agent not less than 20 Business Days’ (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of $25,000,000) of an Available Facility. Any cancellation under this Clause 7.4 shall reduce the Commitments of the Lenders rateably under the Facility.

7.5 Voluntary prepayment of Loans

(a) The Borrower may, if it gives the Agent not less than 20 Business Days’ (or such shorter period as the Majority Lenders may agree) prior notice, with the prior consent of the Majority Lenders prepay the whole or any part of any Loan (but, if in part, being an amount that reduces the amount of the Loan by a minimum amount of $25,000,000).

(b) A Loan may only be prepaid after the last day of the Availability Period (or, if earlier, the day on which the applicable Available Facility is zero).

7.6 Right of repayment and cancellation in relation to a single Lender

(a) If:

(i) any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 12.2 (Tax gross-up);

(ii) any Lender claims indemnification from the Borrower under Clause 12.3 (Tax indemnity) or Clause 13.1 (Increased costs),

the Borrower may, whilst (in the case of paragraphs (i) and (ii) above) the circumstance giving rise to the requirement for indemnification continues, give the Agent notice of cancellation of the Commitment of that Lender and its intention to procure the repayment of that Lender’s participation in the Loans or replace such Lender by requiring such Lender to (and such Lender shall promptly) transfer all of its rights and obligations under the Finance Documents at par (together with any accrued but unpaid interest and fees due to it) to any person selected by the Borrower willing to take such transfer.

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

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

7.7 Restrictions

(a) Any notice of cancellation or prepayment given by any Party under this Clause 7 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

(b) Any prepayment under 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 may not reborrow any part of the Facility which is prepaid.

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

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

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

SECTION 5

COSTS OF UTILISATION

8. INTEREST

8.1 Calculation of interest

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

(a) Margin; and

(b) LIBOR.

8.2 Payment of interest

Subject to the terms of the Intercreditor Agreement, on the last day of each Interest Period the Borrower shall pay accrued Cash Pay Interest on the Loan to which that Interest Period relates (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).

8.3 PIK Interest Portion

In respect of each Interest Period ending on or prior to the PIK Limit Date:

(a) in addition to interest payable pursuant to Clause 8.2 (Payment of interest) and Clause 10.2 (Market disruption), interest shall accrue on the Loan at a rate equal to the PIK Interest Portion; and

(b) on the dates falling at six Monthly intervals after the date of Utilisation the amount of interest accrued under paragraph (a) above shall be automatically capitalised and added to the outstanding principal amount of the Loan. Any such accrued interest shall, after being so capitalised, be treated as part of the principal amount of the Loan and shall, subject to the terms of the Intercreditor Agreement, be payable in accordance with the repayment or prepayment provisions of this Agreement,

provided that, in respect of the Interest Period which ends on the PIK Limit Date and notwithstanding (a) and (b) above, the PIK Interest Portion shall be only capitalised in a proportion such that the sum of (i) the aggregate amount of all PIK Interest Portion capitalisations made prior to such date and (ii) the amount of the PIK Interest Portion capitalisation to be made in respect of the Interest Period ending on such date equals the PIK Limit Amount and the excess part of any PIK Interest Portion accrued during such Interest Period shall be payable in the form of Cash Pay Interest pursuant to Clause 8.2 (Payment of interest).

8.4 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 one per cent higher than the rate which would have been payable if the overdue amount had, during the period

of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this Clause 8.4 shall be immediately payable by the Obligor on demand by the 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 one per cent. higher than 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.

8.5 Notification of rates of interest

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

9. INTEREST PERIODS

9.1 Selection of Interest Periods

(a) Each Interest Period shall be six Months, which shall end on 31 March or 30 September (as the case may be) and the first Interest Period shall end on 31 March 2008.

(b) 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.

9.2 Non-Business Days

If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).

9.3 Consolidation and division of Loans

If two or more Interest Periods which relate to Loans end on the same date, those Loans will, unless 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.

10. CHANGES TO THE CALCULATION OF INTEREST

10.1 Absence of quotations

Subject to Clause 10.2 (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 the Quotation Day, the applicable LIBOR shall be determined on the basis of the quotations of the remaining Reference Banks.

10.2 Market disruption

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

(i) the Margin; and

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

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

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

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

10.3 Alternative basis of interest or funding

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

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

10.4 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 the 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 Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.

11. FEES

11.1 Agency fee

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

11.2 Security Agent fee

The Borrower shall pay to the Security Agent (for its own account) the Security Agent fee (if any) in the amount and at the times agreed in a Fee Letter.

SECTION 6

ADDITIONAL PAYMENT OBLIGATIONS

12. TAX GROSS UP AND INDEMNITIES

12.1 Definitions

(a) In this Clause 12.1:

“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 any Obligor to a Finance Party under Clause 12.2 (Tax gross-up) or a payment under Clause 12.3 (Tax indemnity).

(b) Unless a contrary indication appears, in this Clause 12 a reference to “determines” or “determined” means a determination made in the absolute discretion of the person making the determination.

12.2 Tax gross-up

(a) All payments to be made by an Obligor to any Finance Party under the Finance Documents shall be made free and clear of and without any Tax Deduction unless such Obligor is required to make a Tax Deduction, in which case the sum payable by such Obligor (in respect of which such Tax Deduction is required to be made) shall be increased to the extent necessary to ensure that such Finance Party receives a sum net of any deduction or withholding equal to the sum which it would have received had no such Tax Deduction been made or required to be made.

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

(c) 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.

(d) Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax

Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

12.3 Tax indemnity

(a) Without prejudice to Clause 12.2 (Tax gross-up), if any Finance Party is required to make any payment of or on account of Tax on or in relation to any sum received or receivable under the Finance Documents (including any sum deemed for purposes of Tax to be received or receivable by such Finance Party whether or not actually received or receivable) or if any liability in respect of any such payment is asserted, imposed, levied or assessed against any Finance Party, the Borrower shall, within three Business Days of demand of the Agent, promptly indemnify the Finance Party which suffers a loss or liability as a result against such payment or liability, together with any interest, penalties, costs and expenses payable or incurred in connection therewith, provided that this Clause 12.3 shall not apply to:

(b) any Tax imposed on and calculated by reference to the net income actually received or receivable by such Finance Party (but, for the avoidance of doubt, not including any sum deemed for purposes of Tax to be received or receivable by such Finance Party but not actually receivable) by the jurisdiction in which such Finance Party is incorporated; or

(c) any Tax imposed on and calculated by reference to the net income of the Facility Office of such Finance Party actually received or receivable by such Finance Party (but, for the avoidance of doubt, not including any sum deemed for purposes of Tax to be received or receivable by such Finance Party but not actually receivable) by the jurisdiction in which its Facility Office is located.

(d) A Finance Party intending to make a claim under paragraph (a) shall notify the Agent of the event giving rise to the claim, whereupon the Agent shall notify the Borrower thereof.

(e) A Finance Party shall, on receiving a payment from an Obligor under this Clause 12.3, notify the Agent.

12.4 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.

12.5 Stamp taxes

The Borrower shall (a) pay and, (b) 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 and other similar Taxes payable in respect of any Finance Document.

12.6 Indirect 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 Indirect Tax. If any Indirect Tax 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 Indirect Tax.

(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 Indirect Tax incurred by that Finance Party in respect of the costs or expenses to the extent the Finance Party reasonably determines that it is not entitled to credit or repayment in respect of the Indirect Tax.

13. INCREASED COSTS

13.1 Increased costs

(a) Subject to Clause 13.3 (Exceptions) the Borrower shall, within five Business Days of a demand by the Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or (ii) compliance with any law or regulation made after the date of this Agreement or if later, the date it became a party to this Agreement. The terms “law” and “regulation” in this paragraph (a) shall include, without limitation, any law or regulation concerning capital adequacy, prudential limits, liquidity, reserve assets or Tax.

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

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

(ii) an additional or increased cost; or

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

which is incurred or suffered by a Finance Party or any of its Affiliates as a result of it having entered into its Commitment or funding or performing its obligations under any Finance Document.

13.2 Increased cost claims

(a) A Finance Party intending to make a claim pursuant to Clause 13.1 (Increased costs) shall promptly upon becoming aware of the claim notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Borrower.

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

13.3 Exceptions

(a) Clause 13.1 (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 12.3 (Tax indemnity) (or would have been compensated for under Clause 12.3 (Tax indemnity) but was not so compensated solely because one of the exclusions in Clause 12.3 (Tax indemnity) applied); or

(iii) attributable to the breach by the relevant Finance Party or its Affiliates of any law or regulation or the terms of a Finance Document.

In this Clause 13.3, a reference to a “Tax Deduction” has the same meaning given to the term in Clause 12.1 (Definitions).

14. OTHER INDEMNITIES

14.1 Currency indemnity

(a) If any sum due from the Borrower 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;

(ii) obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,

the Borrower shall as an independent obligation, within five Business Days of demand, indemnify each Secured Party and the Arranger to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B)

the rate or rates of exchange available to that person at the time of its receipt of that Sum.

(b) The Borrower 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.

14.2 Other indemnities

(a) The Borrower shall, within five Business Days of demand, indemnify each Secured Party and the Arranger against any cost, loss or liability incurred by that Secured Party or Arranger as a result of:

(i) the occurrence of any Event of Default;

(ii) a failure by the Borrower 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 25 (Sharing among the Finance Parties);

(iii) funding, or making arrangements to fund, its participation in a Loan requested by the Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or

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

(b) The Borrower shall, within three Business Days of demand, indemnify each the Initial Lenders, the Agent and the Arranger against any and all claims, damages, losses, liabilities, costs and expenses (including, without limitation, fees and disbursements of legal counsel), joint or several, that may be incurred in connection with or relating to the Finance Documents or the transactions contemplated by the Finance Documents or any use made or proposed to be made of the proceeds of the Facility save as may arise from their negligence, wilful default or breach of the Finance Documents.

14.3 Indemnity to the Agent

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

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

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

14.4 Indemnity to the Security Agent

(a) The Borrower shall promptly indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability incurred by any of them as a result of:

(i) the taking, holding, protection or enforcement of the Transaction Security;

(ii) the exercise of any of the rights, powers, discretions and remedies vested in the Security Agent and each Receiver and Delegate by the Finance Documents or by law; and

(iii) any default by the Borrower in the performance of any of the obligations expressed to be assumed by it in the Finance Documents.

(b) The Security Agent may, in priority to any payment to the Secured Parties, indemnify itself out of the Charged Property in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 14.4 and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all moneys payable to it.

15. MITIGATION BY THE LENDERS

15.1 Mitigation

(a) Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 12 (Tax gross-up and indemnities) or Clause 13 (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 the Borrower under the Finance Documents.

15.2 Limitation of liability

(a) The Borrower shall indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 15.1 (Mitigation).

(b) A Finance Party is not obliged to take any steps under Clause 15.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

16. COSTS AND EXPENSES

16.1 Transaction expenses

The Borrower shall within a reasonable period of time pay the Agent, the Arranger and the Security Agent the amount of all reasonable costs and expenses (including, but not limited to, legal fees) reasonably incurred by any of them (and, in the case of the Security Agent, by any Receiver or Delegate) in connection with the negotiation, preparation, printing, execution, syndication and perfection of:

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

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

16.2 Amendment costs

If (a) the Borrower requests an amendment, waiver or consent or (b) an amendment is required pursuant to Clause 26.9 (Change of currency), the Borrower shall, within a reasonable period of time, reimburse each of the Agent and the Security Agent for the amount of all reasonable costs and expenses (including, but not limited to, legal fees) reasonably incurred by the Agent and the Security Agent (and in the case of the Security Agent, by any Receiver or Delegate) in responding to, evaluating, negotiating or complying with that request or requirement.

16.3 Security Agent’s ongoing costs

(a) In the event of (i) the occurrence of an Event of Default or (ii) the Security Agent being requested by the Borrower or the Majority Lenders to undertake duties which the Security Agent and the Borrower agree to be of an exceptional nature and/or outside the scope of the normal duties of the Security Agent under the Finance Documents, the Borrower shall pay to the Security Agent any additional remuneration that may be agreed between them.

(b) If the Security Agent and the Borrower fail to agree upon the nature of the duties or upon any additional remuneration, that dispute shall be determined by an investment bank (acting as an expert and not as an arbitrator) selected by the Security Agent and approved by the Borrower or, failing approval, nominated (on the application of the Security Agent) by the President for the time being of the Law Society of England and Wales (the costs of the nomination and of the investment bank being payable by the Borrower) and the determination of any investment bank shall be final and binding upon the parties to this Agreement.

16.4 Enforcement and preservation costs

The Borrower shall, within five Business Days of demand, pay to each Secured Party and the Arranger the amount of all costs and expenses (including, but not limited to, legal fees) incurred by that Secured Party and the Arranger in connection with the enforcement of, or the preservation of any rights under, any Finance Document and the Transaction Security and any proceedings instituted by or against the Security Agent as a consequence of taking or holding the Transaction Security or enforcing these rights save to the extent arising out of the gross negligence or wilful default of the Security Agent.

SECTION 7

REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT

17. REPRESENTATIONS

The Borrower makes the representations and warranties set out in this Clause 17 to each Finance Party on the date of this Agreement.

17.1 Status

(a) It is a corporation, 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 in all material respects as it is being conducted.

17.2 Binding obligations

The obligations expressed to be assumed by it in each Finance Document are, subject to the Legal Reservations and Perfection Requirements, legal valid, binding and enforceable obligations.

17.3 Non-conflict with other obligations

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

(a) any law or regulation applicable to it in any respect which would be considered materially and adverse to the interests of the Finance Parties;

(b) its or any of its Subsidiaries’ constitutional documents; or

(c) any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries’ assets which would have a Material Adverse Effect.

17.4 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.

17.5 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

(b) to make the Finance Documents to which it is a party admissible in evidence in each Relevant Jurisdiction,

have been (or will by the required date be) obtained or effected and are (or will be the required date be) in full force and effect.

17.6 Governing law and enforcement

(a) The choice of governing law of each of the Finance Documents will be recognised and enforced in each Relevant Jurisdiction.

(b) Any judgment obtained in England in relation to a Finance Document will be recognised and enforced in each Relevant Jurisdiction.

17.7 No default

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

(b) No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or any of its Subsidiaries or to which its (or any of its Subsidiaries’) assets are subject which default would reasonably be expected to have a Material Adverse Effect.

17.8 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.

17.9 Compliance with laws and regulations

It has complied with all applicable material laws and regulations relating to and in connection with the acquisition by the Company of the outstanding share capital of Target.

17.10 No proceedings pending or threatened

No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency which, is reasonably likely to be adversely determined, and if so adversely determined would reasonably be expected to have a Material Adverse Effect has (to the best of its knowledge and belief) been started or threatened against any member of the Group.

17.11 Taxation

(a) It has duly and punctually paid and discharged all material Taxes imposed upon it or its assets within the time period allowed without incurring penalties (except to the extent that (i) payment is being contested in good faith, (ii) it has maintained adequate reserves for those Taxes and (iii) payment can be lawfully withheld).

(b) It is not materially overdue in the filing of any Tax returns.

(c) So far as the Borrower is aware, no claims are being or are reasonably likely to be asserted against it with respect to Taxes.

17.12 No Immunity

In any proceedings taken in a Relevant Jurisdiction in relation to the Finance Documents, it will not be entitled to claim for itself or any of its assets immunity from suit, execution, attachment or other legal process.

17.13 Private and commercial acts

Its execution of the Finance Documents constitutes, and its exercise of its rights and performance of its obligations under this Agreement will constitute, private and commercial acts done and performed for private and commercial purposes.

17.14 Security

No Security exists over all or any of the present or future assets of the Borrower other than any Security permitted under Clause 19.3 (Negative Pledge).

17.15 Ranking

Save as set out in the Intercreditor Agreement, the Transaction Security has or will have first ranking priority and it is not subject to any prior ranking or pari passu ranking Security.

17.16 Transaction Security

Subject to Legal Reservations and Perfection Requirements each Security Document validly creates the Security which is expressed to be created by that Security Document and evidences the Security it is expressed to evidence.

17.17 Legal and Beneficial Owner

It is the absolute legal owner and beneficial owner of the assets subject to the Transaction Security to which it is a party.

17.18 Shares

The shares which are subject to the Transaction Security are fully paid and not subject to any option to purchase or similar rights. The constitutional documents of companies whose shares are subject to the Transaction Security (with the exception of the shares in the Company) do not restrict or inhibit any transfer of those shares on creation or on enforcement of the Transaction Security.

17.19 Group Structure

The Group Structure Chart delivered to the Agent pursuant to Schedule 2 (Conditions Precedent) is true, complete and accurate in all material respects.

17.20 Ownership of the Company

The Borrower owns (directly or indirectly) 100 per cent. of the issued share capital of the Company.

17.21 Repetition

The Repeating Representations are deemed to be made by the Borrower (by reference to the facts and circumstances then existing) on the date of each Utilisation Request and the first day of each Interest Period.

18. INFORMATION UNDERTAKINGS

The undertakings in this Clause 18 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.

18.1 Financial statements

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

(a) as soon as the same become available, but in any event within 90 days after the end of each of its financial years (or such other date as may be agreed between the Borrower and the Agent), its audited financial statements for that financial year; and

(b) as soon as the same become available, but in any event within 60 days after the end of each half of each of its financial years (or such other date as may be agreed between the Borrower and the Agent), its financial statements for that financial half year.

18.2 Requirements as to financial statements

(a) Each set of financial statements delivered by the Borrower pursuant to Clause 18.1 (Financial statements) shall be certified by a director of the Borrower as fairly representing its financial condition in all material respects as at the date at which those financial statements were drawn up.

(b) The Borrower shall procure that each set of financial statements delivered pursuant to Clause 18.1 (Financial statements) is prepared using GAAP.

18.3 Information: miscellaneous

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

(a) all documents despatched by the Borrower 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 the Borrower (or against the directors of the Borrower), and which would be reasonably likely, if adversely determined, have a Material Adverse Effect; and

(c) promptly, such further information regarding the financial condition, business and operations of the Borrower as any Finance Party (through the Agent) may reasonably request (subject to legal or regulatory restrictions on disclosures).

18.4 Notification of default

(a) The Borrower shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence.

(b) The Borrower shall notify the Agent of any material change in the corporate status or business of the Borrower no later than 15 days after the occurrence of any such change.

(c) Promptly upon a request by the Agent, the Borrower shall supply to the Agent a certificate signed by a director or senior officer on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).

18.5 Use of websites

(a) The Borrower may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders (the “Website Lenders”) who accept this method of communication by posting this information onto an electronic website designated by the Borrower and the Agent (the “Designated Website”) if:

(i) the Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;

(ii) both the Borrower and the Agent are aware of the address of and any relevant password specifications for the Designated Website; and

(iii) the information is in a format previously agreed between the Borrower and the Agent.

If any Lender (a “Paper Form Lender”) does not agree to the delivery of information electronically then the Agent shall notify the Borrower accordingly and the Borrower shall supply the information to the Agent (in sufficient copies for each Paper Form Lender) in paper form. In any event the Borrower shall supply the Agent with at least one copy in paper form of any information required to be provided by it.

(b) The Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Borrower and the Agent.

(c) The Borrower shall promptly upon becoming aware of its occurrence notify the Agent if:

(i) the Designated Website cannot be accessed due to technical failure;

(ii) the password specifications for the Designated Website change;

(iii) any new information which is required to be provided under this Agreement is posted onto the Designated Website;

(iv) any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or

(v) the Borrower becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.

If the Borrower notifies the Agent under paragraph (c)(i) or paragraph (c)(v) above, all information to be provided by the Borrower under this Agreement after the date of that notice shall be supplied in paper form unless and until the Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.

(d) Any Website Lender may request, through the Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Borrower shall comply with any such request within ten Business Days.

18.6 “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 the Borrower or the composition of the shareholders of the Borrower 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 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, the Borrower shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the 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 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 Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the 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.

19. GENERAL UNDERTAKINGS

The undertakings in this Clause 19 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.

19.1 Authorisations

The Borrower shall promptly:

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

(b) if requested by the Agent (acting reasonably) supply certified copies to the Agent of,

any material Authorisation required under any law or regulation of the Relevant Jurisdictions to enable it to perform its obligations under the Finance Documents and to ensure the legality, validity, enforceability or admissibility in evidence in each Relevant Jurisdiction of any Finance Document.

19.2 Compliance with laws

The Borrower shall comply in all respects with all laws to which it may be subject, if failure so to comply would materially impair its ability to perform its obligations under the Finance Documents.

19.3 Negative pledge

(a) The Borrower shall not create or permit to subsist any Security over any of its assets.

(b) The Borrower shall not:

(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 any Holding Company or Affiliate;

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

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

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

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

(c) Paragraphs (a) and (b) above do not apply to (i) the Transaction Security, (ii) the Senior Finance Documents, (iii) the Alcoa Security Documents, (iv) any Security arising by operation of law; (v) security and set-off rights over bank accounts arising under the standard terms of the entity holding such accounts.

19.4 Disposals

19.5 Merger

The Borrower shall not enter into any amalgamation, demerger, merger or corporate reconstruction.

19.6 Change of business

The Borrower shall ensure that no substantial change is made to the general nature of its business from that carried on at the date of this Agreement without the prior written consent by the Majority Lenders.

19.7 Taxation

The Borrower shall duly and punctually pay and discharge all Taxes imposed upon it or its assets within the time period allowed without incurring penalties (except to the extent that (a) such payment is being contested in good faith, (b) adequate reserves are being maintained for those Taxes and (c) such payment can be lawfully withheld), where a failure to do so would have a Material Adverse Effect.

19.8 Acquisitions

The Borrower shall not without the prior written consent by the Majority Lenders acquire any company, business, assets or undertaking.

19.9 Loans and Guarantees

19.10 Dividends

The Borrower shall not pay, make or declare any dividend or other distribution (whether by way of loans or otherwise) in respect of any of its financial years without the prior written consent of the Majority Lenders.

19.11 Syndication

limitation, by making senior management available for the purpose of making presentations to, or meeting, potential lending institutions) and will comply with all reasonable requests for information from potential syndicate members prior to completion of syndication.

19.12 Indebtedness

(a) The Borrower shall not without the prior written consent by the Majority Lenders incur, create or permit to subsist or have outstanding any Financial Indebtedness or enter into any agreement or arrangement whereby it is entitled to incur, create or permit to subsist any Financial Indebtedness.

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

(i) any Financial Indebtedness arising under or permitted by the Finance Documents;

(ii) any Financial Indebtedness which is fully subordinated to the Borrower’s obligations under the Finance Documents on customary terms satisfactory to the Agent (acting reasonably); or

(iii) any Financial Indebtedness arising as a result of any Security Documents entered into by the Borrower.

19.13 Access

The Borrower shall:

(a) on request of the Agent, provide the Agent and Security Agent with any information the Agent or Security Agent may reasonably require about its business and affairs, the Charged Property and its compliance with the terms of the Security Documents; and

(b) following the occurrence of an Event of Default which is continuing permit the Security Agent, its representatives, delegates, professional advisers and contractors, free access at all reasonable times and on reasonable notice at the cost of the Borrower, (i) to inspect and take copies and extracts from the books, accounts and records of the Borrower and (ii) to view the Charged Property (without becoming liable as mortgagee in possession).

19.14 Joint ventures

The Borrower shall not without the prior written consent by the Majority Lenders:

(a) enter into, invest in or acquire (or agree to acquire) any shares, stocks, securities or other interest in any Joint Venture; or

(b) transfer any assets or lend to or guarantee or give an indemnity for or give Security for the obligations of a Joint Venture or maintain the solvency of or provide working capital to any Joint Venture (or agree to do any of the foregoing).

19.15 Special Purpose Companies

The Borrower shall not without the consent of the Majority Lenders trade, carry on any business or own any assets or incur any liabilities which in any such case is material in the context of the Borrower’s business as anticipated as of the date hereof except for:

(a) the provision of administrative services (excluding treasury services) customary for such a company (including administration and payment of applicable Tax) and liabilities in respect of tax;

(b) ownership of shares in the Company, intra-Group debit balances, intra-Group credit balances and other credit balances in bank accounts, cash and cash equivalent investments but only if those shares, credit balances, cash and cash equivalent investments are subject to the Transaction Security;

(c) any liabilities under the Finance Documents to which it is a party or the transactions contemplated by them and establishment costs and professional fees and administration costs in the ordinary course of business as a special purpose company holding a single asset.

19.16 Pari passu ranking

Subject to the terms of the Intercreditor Agreement, the Borrower shall ensure that at all times any unsecured and unsubordinated claims of a Finance Party or Hedge Counterparty against it under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors except those creditors whose claims are mandatorily preferred by laws of general application to companies.

19.17 Arm’s length basis

The Borrower shall not enter into any material transaction with any person except on arm’s length terms and for full market value.

19.18 Structural Intra-Group Loans

The Borrower shall not without the prior written consent by the Majority Lenders:

(i) repay or prepay any principal amount (or capitalised interest) outstanding under the Structural Intra-Group Loans;

(ii) pay any interest or any other amounts payable in connection with the Structural Intra-Group Loans; or

(iii) purchase, redeem, defease or discharge, exchange or enter into any sub-participation arrangements in respect of any amount outstanding with respect to the Structural Intra-Group Loans.

19.19 Treasury Transactions

The Borrower shall not enter into any Treasury Transaction, other than hedging transactions contemplated by a Hedging Letter in the agreed form and documented by relevant Hedging Agreements in the agreed form and, save with the prior written

consent of the Majority Lenders, shall not terminate or close any such hedging transactions.

19.20 Employees

The Borrower shall not have any employees or premises or have any Subsidiary (save for the Borrower’s shareholding in the Company) or become a director of any company, save as may be required under applicable local law.

19.21 Further assurance

(a) The Borrower shall promptly do all such acts or execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions) as the Security Agent may reasonably specify (and in such form as the Security Agent may reasonably require in favour of the Security Agent or its nominee(s)):

(i) to perfect the Security created or intended to be created under or evidenced by the Security Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights powers and remedies of the Security Agent provided by or pursuant to the Finance Documents or by law;

(ii) to confer on the Security Agent Security over any property and assets of that Obligor located in any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Security Documents; and/or

(iii) to facilitate the realisation of the assets which are, or are intended to be, the subject of the Transaction Security.

(b) The Borrower shall take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Security Agent or the Finance Parties by or pursuant to the Finance Documents.

19.22 Conditions Subsequent

(a) The Borrower shall no later than 10 days after the initial Utilisation provide to the Lenders a report setting out in detail how each Loan have been applied in purchases of Target Shares by the Company and which report shall specify the amount of Target Shares purchased and the price paid in respect of such purchased Target Shares.

(b) The Borrower shall procure (i) that the relevant Security Document creating first ranking and valid security interests over the Target Shares is executed and delivered by the Company to the Security Agent and (ii) that the security over the Target Shares granted pursuant to the relevant Security Document is

duly perfected and any notice or other confirmation required to be given to, and use all reasonable endeavours to obtain the countersignature of, the custodian under such Security Document have been so given and countersigned and in each case no later than the date falling 10 Business Days after the Settlement Date.

(c) The Borrower shall no later than 10 Business Days after the Settlement Date deliver to the Agent:

(i) the Funds Flow in form and substance satisfactory to the Agent; and

(ii) the constitutional documents of the Borrower together with a any shareholders’ agreement or resolution amending or varying the rights attaching to the shares in the Borrower and removing any restrictions on transfer of the shares in the Borrower.

20. EVENTS OF DEFAULT

Each of the events or circumstances set out in this Clause 20 is an Event of Default (save as for Clause 20.15 (Acceleration).

20.1 Non-payment

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

(a) its failure to pay is caused by:

(i) administrative or technical error; or

(ii) a Disruption Event; and

(b) payment is made within:

(i) (in the case of (a)(i) above 3 Business Days of its due date; or

(ii) (in the case of (a)(ii) above 5 Business Days of its due date.

20.2 Other obligations

(a) The Borrower does not comply with any provision of the Finance Documents (other than those referred to in Clause 20.1 (Non-payment)).

(b) No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 30 days of the Agent giving notice to the Borrower or the Borrower becoming aware of the failure to comply.

20.3 Misrepresentation

Any representation made or deemed to be made by a Borrower in the Finance Documents or any other document delivered by or on behalf of the Borrower 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 and if capable of remedy the circumstances giving rise to that misrepresentation are not remedied within 30 days of the Agent giving notice.

20.4 Cross default

(a) Any Financial Indebtedness of any Obligor is not paid when due nor within any originally applicable grace period.

(b) Any Financial Indebtedness of any Obligor 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).

(c) Any commitment for any Financial Indebtedness of any Obligor is cancelled or suspended by a creditor of any Obligor as a result of an event of default (however described).

(d) Any creditor of any Obligor becomes entitled to declare any Financial Indebtedness of any Obligor due and payable prior to its specified maturity as a result of an event of default (however described).

(e) No Event of Default will occur under this Clause 20.4 if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (a) to (d) above at any time is less than $5,000,000 (or its equivalent in any other currency or currencies).

20.5 Insolvency

(a) An Obligor is unable or admits inability to pay its debts as they fall due (excluding under section 123(i) of the Insolvency Act 1986), suspends 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 (not being the Finance Parties or any of them) with a view to rescheduling any of its indebtedness.

(b) The value of the assets of any Obligor is less than its liabilities (taking into account contingent and prospective liabilities).

(c) A moratorium is declared in respect of any indebtedness of any Obligor.

20.6 Insolvency proceedings

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

(a) 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;

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

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

(d) enforcement of any Security over any assets of any Obligor,

or any analogous procedure or step is taken in any jurisdiction.

20.7 Creditors’ process

Any expropriation, attachment, sequestration, distress or execution affects any asset or assets of an Obligor with a value of $5,000,000 or more.

20.8 Unlawfulness

It is or becomes unlawful for an Obligor to perform any of its material obligations under the Finance Documents or any Transaction Security created or expressed to be created or evidenced by the Security Documents ceases to be effective.

20.9 Repudiation

An Obligor repudiates a Finance Document or any of the Transaction Security or evidences an intention to repudiate a Finance Document or any of the Transaction Security.

20.10 Governmental Intervention

By or under the authority of any government:

(a) the management of any Obligor is wholly or partially displaced or the authority of any Obligor in the conduct of its business is wholly or partially curtailed; or

(b) all or a majority of the issued shares of any Obligor or the whole or any part (the book value of which is 10 per cent. or more of the book value of the whole) of its revenues or assets is seized, nationalised, expropriated or compulsorily acquired and which has a Material Adverse Effect.

20.11 Transaction Security

(a) Any Obligor fails to perform or comply with any of the material obligations assumed by it in the Security Documents.

(b) At any time any of the Transaction Security is or becomes unlawful or is not, or ceases to be legal, valid, binding or enforceable or otherwise ceases to be effective in any respect which is materially adverse to the interests of the Lenders.

(c) At any time, any of the Transaction Security fails to have first ranking priority or is subject to any prior ranking or pari passu ranking Security.

20.12 Auditors Qualification

The Auditors of any Obligor qualify the annual financial statements of such Obligor in a manner which is materially prejudicial to the interests of the Finance Parties.

20.13 Material Litigation

Any litigation, arbitration, proceeding or dispute is started or threatened in writing against any Obligor and which is reasonably likely to be adversely determined and, if so determined, will have a Material Adverse Effect.

20.14 Material adverse change

Any event or circumstance occurs which has or is reasonably likely to have a Material Adverse Effect.

20.15 Acceleration

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

(a) cancel the Total Commitments, at which time they shall immediately be cancelled;

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

(c) declare that all or part of the Loans be payable on demand, at which time they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders; and/or

(d) exercise, or direct the Security Agent to exercise, any or all of its rights, remedies and powers under any of the Finance Documents.

SECTION 8

CHANGES TO PARTIES

21. CHANGES TO THE LENDERS

21.1 Assignments and transfers by the Lenders

Subject to this Clause 21, a Lender (the “Existing Lender”) may after consultation with the Borrower:

(a) assign any of its rights; or

(b) transfer by novation any of its rights and obligations,

to another bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets or another entity with the consent of the Borrower (the “New Lender”).

21.2 Conditions of assignment or transfer

(a) An assignment will only be effective on:

(i) receipt by the Agent of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will assume the same obligations to the other Finance Parties and the other Secured Parties as it would have been under if it was an Original Lender; and

(ii) performance by the Agent of all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of which the Agent shall promptly notify to the Existing Lender and the New Lender.

(b) A transfer will only be effective if the procedure set out in Clause 21.5 (Procedure for transfer) is complied with.

(c) If:

(i) a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and

(ii) as a result of circumstances existing at the date the assignment, transfer or change occurs, the Borrower would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 12 (Tax gross-up and indemnities) or Clause 13 (Increased costs),

then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under those Clauses to the same extent as the Existing Lender or Lender acting through its previous Facility Office would have been if the assignment, transfer or change had not occurred.

21.3 Assignment or transfer fee

The New Lender shall, on the date upon which an assignment or transfer takes effect, pay to the Agent (for its own account) a fee in an amount to be agreed.

21.4 Limitation of responsibility of Existing Lenders

(a) Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:

(i) the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents, the Transaction Security or any other documents;

(ii) the financial condition of any Obligor;

(iii) the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or

(iv) the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,

and any representations or warranties implied by law are excluded.

(b) Each New Lender confirms to the Existing Lender and the other Finance Parties that it:

(i) has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and

(ii) will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.

(c) Nothing in any Finance Document obliges an Existing Lender to:

(i) accept a re-transfer from a New Lender of any of the rights and obligations assigned or transferred under this Clause 21; or

(ii) support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.

21.5 Procedure for transfer

(a) Subject to the conditions set out in Clause 21.2 (Conditions of assignment or transfer) a transfer is effected in accordance with paragraph (c) below when the Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to

paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate.

(b) The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.

(c) On the Transfer Date:

(i) to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents and in respect of the Transaction Security each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and in respect of the Transaction Security and their respective rights against one another shall be cancelled (being the “Discharged Rights and Obligations”);

(ii) each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender;

(iii) the Agent, the Arranger, the Security Agent, the New Lender and the other Lenders shall acquire the same rights and assume the same obligations between themselves and in respect of the Transaction Security as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Agent, the Arranger, the Security Agent and the Existing Lender shall each be released from further obligations to each other under the Finance Documents; and

(iv) the New Lender shall become a Party as a “Lender”.

21.6 Copy of Transfer Certificate to Borrower

The Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate, send to the Borrower a copy of that Transfer Certificate.

21.7 Disclosure of information

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

(a) to (or through) whom that Lender assigns or transfers (or may potentially assign or transfer) all or any of its rights and obligations under this Agreement;

(b) with (or through) whom that Lender enters into (or may potentially enter into) any sub-participation in relation to, or any other transaction under which payments are to be made by reference to, this Agreement or any Obligor; or

(c) to whom, and to the extent that, information is required to be disclosed by any applicable law or regulation,

any information about any Obligor, the Group and the Finance Documents as that Lender shall consider appropriate if, in relation to paragraphs (a) and (b) above, the person to whom the information is to be given has entered into a Confidentiality Undertaking.

22. CHANGES TO THE BORROWER

The Borrower may not assign any of its rights or transfer any of its rights or obligations under the Finance Documents.

SECTION 9

THE FINANCE PARTIES

23. ROLE OF THE AGENT AND THE ARRANGER

23.1 Appointment of the Agent

(a) Each other Finance Party (other than the Security Agent) appoints the Agent to act as its agent under and in connection with the Finance Documents.

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

23.2 Duties of the Agent

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

(b) Except where a Finance Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.

(c) If the Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.

(d) If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent, the Arranger or the Security Agent) under this Agreement it shall promptly notify the other Finance Parties.

(e) The Agent’s duties under the Finance Documents are solely mechanical and administrative in nature.

(f) The Agent shall promptly forward to the Security Agent a copy of all notices issued pursuant to Clause 20.15 (Acceleration).

23.3 Role of the Arranger

Except as specifically provided in the Finance Documents, the Arranger has no obligations of any kind to any other Party under or in connection with any Finance Document.

23.4 No fiduciary duties

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

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

23.5 Business with the Group

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

23.6 Rights and discretions of the Agent

(a) The Agent may rely on:

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

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

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

(i) no Default has occurred (unless it has actual knowledge of a Default arising under Clause 20.1 (Non-payment));

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

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

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

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

(e) The Agent may disclose to any other Party any information it reasonably believes it has received as Agent under this Agreement.

(f) Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent nor the Arranger is obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.

23.7 Majority Lenders’ instructions

(a) Unless a contrary indication appears in a Finance Document, the Agent shall (i) exercise any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by the Majority Lenders (or, if so instructed by the Majority Lenders, refrain from exercising any right, power, authority or discretion vested in it as Agent) and (ii) not be liable for any act

(or omission) if it acts (or refrains from taking any action) in accordance with an instruction of the Majority Lenders.

(b) Unless a contrary indication appears in a Finance Document, any instructions given by the Majority Lenders will be binding on all the Finance Parties other than the Security Agent.

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

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

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

23.8 Responsibility for documentation

Neither the Agent nor the Arranger is responsible for:

(a) the adequacy, accuracy and/or completeness of any information (whether oral or written) provided by the Agent, the Arranger, an Obligor or any other person given in or in connection with any Finance Document, the Information Memorandum or the transactions contemplated by the Finance Documents; or

(b) the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or the Transaction Security or any other agreement, arrangement or document entered into, made or executed in anticipation of or in connection with any Finance Document or the Transaction Security.

23.9 Exclusion of liability

(a) Without limiting paragraph (b) below (and without prejudice to the provisions of paragraph (e) of Clause 26.10 (Disruption to Payment Systems etc.), the Agent will not be liable (including, without limitation, for negligence or any other category of liability whatsoever) for any action taken by it under or in connection with any Finance Document or the Transaction Security, unless directly caused by its gross negligence or wilful misconduct or breach of the Finance Documents.

(b) No Party (other than the Agent) may take any proceedings against any officer, employee or agent of the Agent in respect of any claim it might have against the Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or agent of the Agent may rely on this Clause subject to Clause 1.4 (Third Party Rights) and the provisions of the Third Parties Act.

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

(d) Nothing in this Agreement shall oblige the Agent or the Arranger to carry out any “know your customer” or other checks in relation to any person on behalf of any Lender and each Lender confirms to the Agent and the Arranger that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Agent or the Arranger.

23.10 Lenders’ indemnity to the Agent and the Security Agent

Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Agent and the Security Agent, within three Business Days of demand, against any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by the Agent or the Security Agent (otherwise than by reason of the Agent’s or the Security Agent’s gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 26.10 (Disruption to Payment Systems etc.) notwithstanding the Agent’s negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent ) in acting as Agent or as Security Agent under the Finance Documents (unless the Agent has been reimbursed by an Obligor pursuant to a Finance Document).

23.11 Resignation of the Agent

(a) The Agent may resign and appoint one of its Affiliates acting through an office in a jurisdiction to be agreed as successor by giving notice to the other Finance Parties and the Borrower.

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

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

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

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

(f) Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of this Clause 23. Its successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.

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

23.12 Confidentiality

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

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

23.13 Relationship with the Lenders

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

(b) Each Secured Party shall supply the Agent with any information that the Security Agent may reasonably specify (through the Agent) as being necessary or desirable to enable the Security Agent to perform its functions as Security Agent. Each Lender shall deal with the Security Agent exclusively through the Agent and shall not deal directly with the Security Agent.

23.14 Credit appraisal by the Lenders

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

(a) the financial condition, creditworthiness, condition, affairs, status and nature of each Obligor;

(b) the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and the Transaction Security and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Transaction Security;

(c) whether that Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the Transaction Security, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;

(d) the adequacy, accuracy and/or completeness of the Information Memorandum and any other information provided by the Agent, the Security Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and

(e) the right or title of any person in or to, or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security or the existence of any Security affecting the Charged Property,

and each Lender warrants to the Agent and the Arranger that it has not relied on and will not at any time rely on the Agent or the Arranger in respect of any of these matters.

23.15 Reference Banks

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

23.16 Deduction from amounts payable by the Agent

If any Party owes an amount to the Agent under the Finance Documents the Agent may, after giving notice to that Party, deduct an amount not exceeding that amount from any payment to that Party which the Agent would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents that Party shall be regarded as having received any amount so deducted.

24. CONDUCT OF BUSINESS BY THE FINANCE PARTIES

No provision of this Agreement will:

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

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

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

25. SHARING AMONG THE FINANCE PARTIES

25.1 Payments to Finance Parties

If a Finance Party (a “Recovering Finance Party”) receives or recovers any amount from an Obligor other than in accordance with Clause 26 (Payment mechanics) or Clause 28 (Application of Proceeds) and applies that amount to a payment due under the Finance Documents then:

(a) the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Agent;

(b) the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance with Clause 26 (Payment mechanics), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and

(c) the Recovering Finance Party shall, within three Business Days of demand by the Agent, pay to the Agent an amount (the “Sharing Payment”) equal to such receipt or recovery less any amount which the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 26.5 (Partial payments).

25.2 Redistribution of payments

The Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it between the Finance Parties (other than the Recovering Finance Party) in accordance with Clause 26.5 (Partial payments).

25.3 Recovering Finance Party’s rights

(a) On a distribution by the Agent under Clause 25.2 (Redistribution of payments), the Recovering Finance Party will be subrogated to the rights of the Finance Parties which have shared in the redistribution.

(b) If and to the extent that the Recovering Finance Party is not able to rely on its rights under paragraph (a) above, the relevant Obligor shall be liable to the Recovering Finance Party for a debt equal to the Sharing Payment which is immediately due and payable.

25.4 Reversal of redistribution

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

(a) each Finance Party which has received a share of the relevant Sharing Payment pursuant to Clause 25.2 (Redistribution of payments) shall, upon request of the Agent, pay to the Agent for account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that

Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay); and

(b) that Recovering Finance Party’s rights of subrogation in respect of any reimbursement shall be cancelled and the Borrower will be liable to the reimbursing Finance Party for the amount so reimbursed.

25.5 Exceptions

(a) This Clause 25 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor.

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

(i) it notified that other Finance Party of the legal or arbitration proceedings; and

(ii) that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.

SECTION 10

ADMINISTRATION

26. PAYMENT MECHANICS

26.1 Payments to the Agent

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

(b) Payment shall be made to such account in the principal financial centre of the country of that currency with such bank as the Agent specifies.

26.2 Distributions by the Agent

Each payment received by the Agent under the Finance Documents for another Party shall, subject to Clause 26.3 (Distributions to an Obligor), Clause 26.4 (Clawback) and Clause 23.16 (Deduction from amounts payable by the Agent) be made available by the Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account as that Party may notify to the Agent by not less than five Business Days’ notice with a bank in the principal financial centre of the country of that currency.

26.3 Distributions to the Borrower

The Agent may (with the consent of the Borrower or in accordance with Clause 27 (Set-off)) apply any amount received by it for the Borrower in or towards payment (on the date and in the currency and funds of receipt) of any amount due from the Borrower under the Finance Documents or in or towards purchase of any amount of any currency to be so applied.

26.4 Clawback

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

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

26.5 Partial payments

(a) If the Agent receives a payment that is insufficient to discharge all the amounts then due and payable by the Borrower under the Finance Documents,

the Agent shall apply that payment towards the obligations of the Borrower under the Finance Documents in the following order:

(i) first, in or towards payment pro rata of any unpaid fees, costs and expenses of the Agent and the Security Agent (including of any Receiver or Delegate) and the Arranger under the Finance Documents;

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

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

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

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

(c) Paragraphs (a) and (b) above will override any appropriation made by the Borrower.

26.6 No set-off by the Borrower

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

26.7 Business Days

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

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

26.8 Currency of account

(a) Subject to paragraphs (b) and (c) below, dollars is the currency of account and payment for any sum from the Borrower under any Finance Document.

(b) Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.

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

26.9 Change of currency

(a) Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:

(i) any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Agent (after consultation with the Borrower); and

(ii) any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent (acting reasonably).

(b) If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Borrower) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Interbank Market and otherwise to reflect the change in currency.

26.10 Disruption to Payment Systems etc.

If either the Agent determines (in its discretion) that a Disruption Event has occurred or the Agent is notified by the Borrower that a Disruption Event has occurred:

(a) the Agent may, and shall if requested to do so by the Borrower, consult with the Borrower with a view to agreeing with the Borrower such changes to the operation or administration of the Facility as the Agent may deem necessary in the circumstances;

(b) the Agent shall not be obliged to consult with the Borrower in relation to any changes mentioned in paragraph (a) if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;

(c) the Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;

(d) any such changes agreed upon by the Agent and the Borrower shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 33 (Amendments and Waivers);

(e) the Agent shall not be liable for any damages, costs or losses whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud

of the Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 26.10; and

(f) the Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.

27. SET-OFF

A Finance Party may, following a payment Event of Default which is continuing, set off any matured obligation due from the Borrower under the Finance Documents (to the extent beneficially owned by that Finance Party) against any matured obligation owed by that Finance Party to the Borrower, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.

28. APPLICATION OF PROCEEDS

28.1 Order of Application

All moneys from time to time received or recovered by the Security Agent in connection with the realisation or enforcement of all or any part of the Transaction Security shall be held by the Security Agent on trust to apply them at such times as the Security Agent sees fit, to the extent permitted by applicable law, in the following order of priority:

(a) in discharging any sums owing to the Security Agent (in its capacity as trustee), any Receiver or any Delegate;

(b) in payment to the Agent, on behalf of the Secured Parties, for application towards the discharge of all sums due and payable by any Obligor under any of the Finance Documents in accordance with Clause 26.5 (Partial Payments);

(c) if none of the Obligors is under any further actual or contingent liability under any Finance Document, in payment to any person to whom the Security Agent is obliged to pay in priority to any Obligor; and

(d) the balance, if any, in payment to the relevant Obligor.

28.2 Investment of Proceeds

Prior to the application of the proceeds of the Transaction Security in accordance with Clause 28.1 (Order of Application) the Security Agent may, at its discretion, hold all or part of those proceeds in an interest bearing suspense or impersonal account(s) in the name of the Security Agent or Agent with any financial institution (including itself) and for so long as the Security Agent thinks fit (the interest being credited to the relevant account) pending the application from time to time of those monies at the Security Agent’s discretion in accordance with the provisions of this Clause 28.

28.3 Currency Conversion

(a) For the purpose of or pending the discharge of any of the Secured Obligations the Security Agent may convert any moneys received or recovered by the

Security Agent from one currency to another, at the spot rate at which the Security Agent is able to purchase the currency in which the Secured Obligations are due with the amount received.

(b) The obligations of the Borrower to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion.

28.4 Permitted Deductions

The Security Agent shall be entitled (a) to set aside by way of reserve amounts required to meet and (b) to make and pay, any deductions and withholdings (on account of Tax or otherwise) which it is or may be required by any applicable law to make from any distribution or payment made by it under this Agreement, and to pay all Tax which may be assessed against it in respect of any of the Charged Property, or as a consequence of performing its duties, or by virtue of its capacity as Security Agent under any of the Finance Documents or otherwise (except in connection with its remuneration for performing its duties under this Agreement).

28.5 Discharge of Secured Obligations

(a) Any payment to be made in respect of the Secured Obligations by the Security Agent may be made to the Agent on behalf of the Lenders and that payment shall be a good discharge to the extent of that payment, to the Security Agent.

(b) The Security Agent is under no obligation to make payment to the Agent in the same currency as that in which any Unpaid Sum is denominated.

28.6 Sums received by the Borrower

If the Borrower receives any sum which, pursuant to any of the Finance Documents, should have been paid to the Security Agent, that sum shall promptly be paid to the Security Agent for application in accordance with this Clause.

29. NOTICES

29.1 Communications in writing

Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by fax or letter.

29.2 Addresses

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

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

(b) in the case of each Lender, that notified in writing to the Agent on or prior to the date on which it becomes a Party; and

(c) in the case of the Agent and Security Agent, that identified with its name below,

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

29.3 Delivery

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

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

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

and, if a particular department or officer is specified as part of its address details provided under Clause 29.2 (Addresses), if addressed to that department or officer.

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

(c) All notices from or to the Borrower shall be sent through the Agent.

(d) All notices to a Lender from the Security Agent shall be sent through the Agent.

29.4 Notification of address and fax number

Promptly upon receipt of notification of an address and fax number or change of address or fax number pursuant to Clause 29.2 (Addresses) or changing its own address or fax number, the Agent shall notify the other Parties.

29.5 Electronic communication

(a) Any communication to be made between the Agent or the Security Agent and a Lender under or in connection with the Finance Documents may be made by electronic mail or other electronic means, if the Agent, the Security Agent and the relevant Lender:

(i) agree that, unless and until notified to the contrary, this is to be an accepted form of communication;

(ii) notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and

(iii) notify each other of any change to their address or any other such information supplied by them.

(b) Any electronic communication made between the Agent and a Lender or the Security Agent will be effective only when actually received in readable form and in the case of any electronic communication made by a Lender to the Agent or the Security Agent only if it is addressed in such a manner as the Agent or Security Agent shall specify for this purpose.

29.6 English language

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

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

(i) in English; or

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

30. CALCULATIONS AND CERTIFICATES

30.1 Accounts

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

30.2 Certificates and Determinations

Any certification or determination by a Finance Party of a rate or amount under any Finance Document is, in the absence of manifest error, prima facie evidence of the matters to which it relates.

30.3 Day count convention

Any interest, commission or fee accruing under a Finance Document will accrue from day to day and is calculated on the basis of the actual number of days elapsed and a year of 360 days or, in any case where the practice in the Relevant Interbank Market differs, in accordance with that market practice.

31. PARTIAL INVALIDITY

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

32. REMEDIES AND WAIVERS

No failure to exercise, nor any delay in exercising, on the part of any Secured Party or the Arranger, any right or remedy under the Finance Documents shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any

further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.

33. AMENDMENTS AND WAIVERS

33.1 Required consents

(a) Subject to Clause 33.2 (Exceptions), any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Obligors and any such amendment or waiver will be binding on all Parties.

(b) The Agent, or in respect of the Security Documents the Security Agent, may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause.

33.2 Exceptions

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

(i) the definition of “Majority Lenders” in Clause 1.1 (Definitions);

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

(iii) a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable;

(iv) an increase in or an extension of any Commitment;

(v) a change to the Borrower;

(vi) any provision which expressly requires the consent of all the Lenders;

(vii) Clause 2.2 (Finance Parties’ rights and obligations), Clause 21 (Changes to the Lenders) or this Clause 33;

(viii) an amendment or waiver which relates to the rights or obligations of the Agent, the Arranger, the Security Agent or a Hedge Counterparty may not be effected without the consent of the Agent, the Arranger, the Security Agent, or that Hedge Counterparty; or

(ix) the nature or scope of the Charged Property or the manner in which the proceeds of enforcement of the Transaction Security are distributed;

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

(b) An amendment or waiver which relates to the rights or obligations of the Agent, the Security Agent or the Arranger may not be effected without the consent of the Agent, the Security Agent or the Arranger as the case may be.

34. COUNTERPARTS

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

SECTION 11

GOVERNING LAW AND ENFORCEMENT

35. GOVERNING LAW

This Agreement is governed by English law.

36. ENFORCEMENT

36.1 Jurisdiction

(a) The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or the consequences of its nullity) (a “Dispute”).

(b) The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.

(c) This Clause 36.1 (Jurisdiction) is for the benefit of the Finance Parties only. As a result, and notwithstanding paragraph (a) of Clause 36.1, any Finance Party may take proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.

36.2 Service of process

Without prejudice to any other mode of service allowed under any relevant law, the Borrower:

(a) irrevocably appoints Clifford Chance Secretaries Limited as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and

(b) agrees that failure by an agent for service of process to notify the Borrower of the process will not invalidate the proceedings concerned.

36.3 Waiver of Immunity

The Borrower waives generally all immunity it or its assets or revenues may otherwise have in any jurisdiction, including immunity in respect of:

(a) the giving of any relief by way of injunction or order for specific performance or for the recovery of assets or revenues; and

(b) the issue of any process against its assets or revenues for the enforcement of a judgment or, in an action in rem, for the arrest, detention or sale of any of its assets and revenues.

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

SCHEDULE 1

THE ORIGINAL PARTIES

Part I
The Borrower

Name of Borrower		Registration number (or equivalent, if any)

ORIENTAL PROSPECT PTE. LTD.		200801581H

Part II

The Original Lenders

Name of Original Lender		Commitment

CHINA DEVELOPMENT BANK		US$7,000,000,000

SCHEDULE 2

CONDITIONS PRECEDENT TO INITIAL UTILISATION

1. Corporate Documents

(a) A copy of the constitutional documents of each Obligor (other than Aluminum Corporation of China) together with any shareholders’ agreement or resolution amending or varying the rights attaching to the shares in the Borrower.

(b) A copy of a resolution of the board of directors of each Obligor (other than Aluminum Corporation of China):

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

(ii) authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and

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

(d) A certificate of each Obligor (other than Aluminum Corporation of China) (signed by an authorised signatory of each Obligor) confirming that borrowing or guaranteeing or securing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing, securing or similar limit binding on any Obligor to be exceeded.

(e) A certificate of an authorised signatory of the relevant Obligor (other than Aluminum Corporation of China) certifying that each copy document relating to it specified in this Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.

2. Finance Documents

The Finance Documents duly executed by the relevant parties with the exception of those Finance Documents agreed between the parties to be delivered as a condition subsequent under Clause 19.22 (Conditions Subsequent).

3. Shares

(a) All original share certificates and share/stock transfer forms or any other documents of title duly executed or delivered by the relevant Obligor in blank in relation to the shares in an Obligor subject to or expressed to be subject to the Transaction Security.

(b) A copy of the register of members of the Borrower.

4. Legal opinions

(a) A legal opinion of Clifford Chance LLP, legal advisers to the Arranger and the Agent in England, substantially in the form distributed to the Original Lenders prior to signing this Agreement.

(b) If (i) an Obligor is incorporated in a jurisdiction other than England and Wales, or (ii) any asset which is purported to be subject to the Transaction Security is located or subject to the laws of a jurisdiction other than England and Wales, a legal opinion of the legal advisers to the Arranger and the Agent in the Relevant Jurisdiction, substantially in the form distributed to the Original Lenders prior to signing this Agreement.

5. Other documents and evidence

(a) Evidence that any agent for service of process referred to in Clause 36.2 (Service of process), if not an Obligor, has accepted its appointment.

(b) A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document.

(c) Evidence that the fees, costs and expenses (if any) then due from the Borrower pursuant to Clause 11 (Fees) and Clause 16 (Costs and expenses) have been paid or will be paid by the first Utilisation Date.

(d) Certified copies of the Confirmation that funds have been drawn down under the Onshore Loan Agreements and transferred to the Borrower.

(e) The Guarantee executed by the Guarantor in form and substance satisfactory to the Agent.

(f) Funds Flow;

(g) Group Structure Chart;

(h) The original bizfile authorisation letter issued by each of the Borrower and the Parent in a form provided by the Singapore law legal advisors to the Arranger and the Agent relating to the registration of the charge created by the relevant Security Documents.

SCHEDULE 3

REQUESTS

Utilisation Request

From:		The Borrower

To:		[Agent]

Dated:

Dear Sirs

ORIENTAL PROSPECT PTE. LTD. –$7,000,000,000 Facility Agreement

dated February 2008 (the “Agreement”)

1. We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.

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

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

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

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

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

5. This Utilisation Request is irrevocable.

	Yours faithfully


	authorised signatory for
	ORIENTAL PROSPECT PTE. LTD.

SCHEDULE 4

FORM OF TRANSFER CERTIFICATE

To:		[ ] as Agent

From:		[The Existing Lender] (the “Existing Lender”) and [The New Lender] (the “New Lender”)

Dated:

ORIENTAL PROSPECT PTE. LTD. –$[7,000,000,000] Facility Agreement

dated February 2008 (the “Agreement”)

1. We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.

2. We refer to Clause 21.5 (Procedure for transfer):

(a) The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all or part of the Existing Lender’s Commitment, rights and obligations referred to in the Schedule in accordance with Clause 21.5 (Procedure for transfer).

(b) The proposed Transfer Date is [ ].

(c) The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 29.2 (Addresses) are set out in the Schedule.

3. The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in paragraph (c) of Clause 21.4 (Limitation of responsibility of Existing Lenders).

4. This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.

5. This Transfer Certificate is governed by English law.

THE SCHEDULE

Commitment/rights and obligations to be transferred

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

[Existing Lender]		[New Lender]

By:		By:

This Transfer Certificate is accepted by the Agent and the Transfer Date is confirmed as [ ].

[Agent]

By:

SCHEDULE 5

TIMETABLES

		Loans in dollars

Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Utilisation Request) or a Selection Notice (Clause 9.1 (Selection of Interest Periods))		U-3 9.30am

Agent notifies the Lenders of the Loan in accordance with Clause 5.4 (Lenders’ participation)		U-3 3.00pm

LIBOR is fixed		Quotation Day as of 11:00 a.m. London time in respect of LIBOR

“U” = date of utilisation or, if applicable, in the case of a Loan that has already been borrowed, the first day of the relevant Interest Period for that Loan

SIGNATURES

THE BORROWER

ORIENTAL PROSPECT PTE. LTD.

By:/s/ ZHANG ZHANKUI

Address:

Fax:

THE ARRANGER

CHINA DEVELOPMENT BANK

By:/s/ XU QIYING

Address:

Fax:

THE AGENT

CHINA DEVELOPMENT BANK

By:/s/ XU QIYING

Address:

Fax:

Attention:

THE SECURITY AGENT

CHINA DEVELOPMENT BANK

By:/s/ XU QIYING

Address:

Fax:

Attention:

THE ORIGINAL LENDERS

CHINA DEVELOPMENT BANK

By:/s/ XU QIYING

Address:

Fax:

Attention:

February 3, 2008

EX-99.6 7 a08-4773_1ex99d6.htm EX-99.6

Exhibit 99.6

CLIFFORD
CHANCE
WONG

CLIFFORD CHANCE WONG PTE LTD

EXECUTION VERSION

DATED Feburary 2008

ORIENTAL PROSPECT PTE. LTD.
as Chargor

in favour of

CHINA DEVELOPMENT BANK
as Security Agent

SHARE CHARGE OVER SPV2

CONTENTS

Clause		Page

1.	Definitions And Interpretation	1

2.	Covenant To Pay And Charge	3

3.	Deposit Of Certificates, Related Rights And Release	3

4.	Voting Rights And Dividends	4

5.	Further Assurance	5

6.	Chargor’s Representations And Warranties	6

7.	Power Of Attorney	7

8.	Security Enforcement	8

9.	Receivers And Administrators	9

10.	Chargor’s Obligations	11

11.	Effectiveness Of Collateral	11

12.	Costs And Expenses, Liability	13

13.	Application Of Proceeds	13

14.	Other Security Interests	14

15.	Suspense Accounts	14

16.	Notices	15

17.	Assignment	16

18.	Waivers And Counterparts	17

19.	Law	17

20.	Enforcement	17

The Schedule		18

THIS DEED is made on

(1) ORIENTAL PROSPECT PTE. LTD., a company incorporated in Singapore with company registration number 200801581H (the “Chargor”);

IN FAVOUR OF:

(2) CHINA DEVELOPMENT BANK as security agent for the Secured Parties on the terms and conditions set out in the Intercreditor Agreement (the “Security Agent” which expression shall include any person for the time being appointed as security agent or as an additional security agent for the purpose of and in accordance with the Intercreditor Agreement).

RECITALS:

(A) The Board of Directors of the Chargor is satisfied that entering into this Deed is for the purposes and to the benefit of the Chargor and its purchasers.

(B) The Security Agent holds the benefit of this Deed on trust for the Secured Parties on the terms of the Finance Documents.

IT IS AGREED as follows.

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this Deed:

“Acceleration Event” means the giving of notice pursuant to clauses 20.15(b) or (c) (Acceleration) (and demand has subsequently been made) of the First Ranking Facility Agreement or pursuant to clauses 20.15(b) or (c) (Acceleration) (and demand has subsequently been made) of the Second Ranking Facility Agreement.

“Act” means the Conveyancing and Law of Property Act, Chapter 61 of Singapore.

“Charged Portfolio” means the Shares and the Related Assets.

“Collateral Rights” means all rights, powers and remedies of the Security Agent provided by this Deed or by law.

“Company” means Shining Prospect Pte. Ltd. (Singapore company registration no. 200801638R).

“Facility Agreements” means the First Ranking Facility Agreement and the Second Ranking Facility Agreement (each a “Facility Agreement”).

“Finance Document” has the same meaning as in the Intercreditor Agreement.

“Intercreditor Agreement” means the intercreditor agreement dated on or about the date hereof of this deed between inter alia the Company, Oriental Prospect Pte. Ltd. as

the borrower under the second ranking facility agreement, the Security Agent, China Development Bank as the first ranking agent and China Development Bank as the second ranking agent.

“Party” means a party to this Deed.

“Related Assets” means all dividends, distributions, interest and other monies at any time payable at any time in respect of the Shares and all other rights, benefits and proceeds in respect of or derived from the Shares (whether by way of allotment, accretion, redemption, bonus, preference, option, rights, substitution, conversion or otherwise) held by, to the order or on behalf of the Chargor at any time.

“Secured Obligations” has the same meaning as the Intercreditor Agreement.

“Secured Parties” has the same meaning as the Intercreditor Agreement.

“Security” means the security created under or pursuant to or evidenced by this Deed.

“Shares” means all of the shares in the share capital of the Company held by, to the order or on behalf of the Chargor at any time.

1.2 Terms defined in other Finance Documents

Unless defined in this Deed or the context otherwise requires, a term defined in the Intercreditor Agreement and in other Finance Documents has the same meaning in this Deed or any notice given under or in connection with this Deed, as if all references in such defined terms to the Facility Agreements or other Finance Document were a reference to this Deed or such notice.

1.3 Construction

Clause 1.2 (Construction) of the Intercreditor Agreement will apply as if incorporated in this Deed or in any notice given under or in connection with this Deed, as if all references in such Clauses to the Intercreditor Agreement were a reference to this Deed or such notice.

1.4 Third Party Rights

Save for the Secured Parties, any Receiver, joint receiver, any attorney of the Security Agent, any person appointed by the Security Agent’s attorneys, any nominee or delegate if the Security Agent or any attorney of the Receiver referred to in this Debenture or unless expressly provided to the contrary, a person who is not a party to this Deed has no right under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore to enforce or enjoy any term of this Deed. Notwithstanding the foregoing, the consent of any third party is not required for any rescission, variation (including any release or compromise of any liability under) or termination of this Deed.

2. COVENANT TO PAY AND CHARGE

2.1 Covenant to Pay

The Chargor covenants with the Security Agent to discharge each of the Secured Obligations on its due date (subject to any applicable grace periods) in accordance with the terms of the Finance Documents.

2.2 Charge

The Chargor charges the Charged Portfolio, as legal and beneficial owner and by way of first fixed charge in favour of the Security Agent, and assigns and agrees to assign absolutely to the Security Agent all its present and future rights, title and interest in and to the Charged Portfolio, in each case for the payment, discharge and satisfaction of the Secured Obligations.

3. DEPOSIT OF CERTIFICATES, RELATED RIGHTS AND RELEASE

3.1 Deposit of certificates and other necessary action

The Chargor will promptly and in any event within 15 Business Days of the execution of this Deed (or upon coming into possession of the Chargor at any time):

(a) (in the case of Shares which are represented by share certificates) deposit (or procure there to be deposited) with the Security Agent all certificates and other documents of title to the Shares, and share or stock transfer forms (executed in blank by or on behalf of the Chargor) in respect of the Shares; and

(b) (in the case of Shares which are not represented by share certificates) deliver or cause to be delivered to the Security Agent or any other person as the Security Agent may specify, all such documents, notices or instruments duly executed by the Chargor and/or the relevant person or persons as may be required or deemed necessary by the Security Agent to grant or create in favour of the Security Agent or its nominees a first-priority security interest by way of a charge in such Shares in accordance with any law as may be applicable to such Shares.

3.2 Related Assets

The Chargor shall, promptly and in any event, within 10 Business Days, upon the accrual, offer or issue of any Related Assets (in the form of stocks, shares, rights, warrants or other securities) in which the Chargor has a beneficial interest, procure the delivery to the Security Agent of:

(a) (in the case of Related Assets which are represented by share certificates) (i) all certificates and other documents of title representing those Related Assets and (ii) such share or stock transfer forms or other instruments of transfer (executed in blank by or on behalf of the Chargor) in respect of those Related Assets as the Security Agent may request; and

(b) (in the case Related Assets which are not represented by share certificates) all such documents, notices or instruments duly executed by the Chargor and/or the relevant person or persons as may be required or deemed necessary by the

Security Agent to grant or create in favour of the Security Agent or its nominees a first-priority security interest by way of a charge in the Related Assets in accordance with any law as may be applicable to such Shares.

3.3 Release

Upon:

(a) the Secured Obligations being irrevocably paid or discharged in full, and the Security Agent and the Secured Parties having no further actual or contingent obligations to make advances or provide other financial accommodation to the Chargor or any other person under the Finance Documents; or

(b) pursuant to any disposals permitted under the Finance Documents,

the Security Agent shall, at the request and cost of the Chargor release all the security granted by this Deed, subject to Clause 11.7 (Avoidance of Payments) without recourse to, and without any representations or warranties by, the Security Agent or any of its nominee(s).

4. VOTING RIGHTS AND DIVIDENDS

4.1 Voting rights and dividends prior to an Acceleration Event

Prior to the occurrence of an Acceleration Event, the Chargor shall:

(a) be entitled to all dividends, interest and other monies or distributions of an income nature arising from the Charged Portfolio; and

(b) be entitled to exercise all voting rights in relation to the Charged Portfolio provided that the Chargor shall not exercise such voting rights in any manner which (other than as permitted under the Finance Documents) would result in, or otherwise permit or agree to, any:

(i) variation of the rights attaching to or conferred by all or any part of the Charged Portfolio;

(ii) increase in the issued share capital of any company whose shares are charged pursuant to this Deed;

(iii) exercise, renunciation or assignment of any right to subscribe for any shares, stocks, warrants or other securities; or

(iv) reconstruction, amalgamation, sale or other disposal of any company or any of the assets of any company (including the exchange, conversion or reissue of any shares or securities as a consequence thereof) whose shares are charged under this Deed,

which adversely affects or prejudices the validity, enforceability or the value of, or the ability of the Security Agent to realise, the security created by this Deed or which would cause an Event of Default to occur. The proceeds of any such action shall form part of the Charged Portfolio.

4.2 Voting rights and dividends after an Acceleration Event

Upon the occurrence of an Acceleration Event, the Security Agent may, at its discretion, (in the name of the Chargor or otherwise and without any further consent or authority from the Chargor):

(a) exercise (or refrain from exercising) any voting rights in respect of the Charged Portfolio;

(b) apply all dividends, interest and other monies arising from the Charged Portfolio as though they were the proceeds of sale under this Deed;

(c) transfer the Charged Portfolio into the name of the Security Agent or such nominee(s) of the Security Agent as it shall require; and

(d) exercise (or refrain from exercising) the powers and rights conferred on or exercisable by the legal or beneficial owner of the Charged Portfolio, including all the powers given to trustees by sections 11(3), 11(4), 11(5) and 11(6) of the Trustees Act, Chapter 337 of Singapore in respect of securities or property subject to a trust, and the right, in relation to the Company, to concur or participate in:

(i) the reconstruction, amalgamation, sale or other disposal of such company or any of its assets or undertaking (including the exchange, conversion or reissue of any shares or securities as a consequence thereof),

(ii) the release, modification or variation of any rights or liabilities attaching to such shares or securities, and

(iii) the exercise, renunciation or assignment of any right to subscribe for any shares or securities,

in each case in the manner and on the terms the Security Agent thinks fit. The proceeds of any such action shall form part of the Charged Portfolio.

5. FURTHER ASSURANCE

5.1 Covenant for Further Assurance

The Chargor will promptly at its own cost do all such acts or execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions) as the Security Agent may specify (and in such form as the Security Agent may require in favour of the Security Agent or its nominee(s)) for the purpose of exercising the Collateral Rights or perfecting the Security created or intended to be created in respect of the Charged Portfolio (which may include the execution by the Chargor of a mortgage, charge or assignment over all or any of the assets constituting, or intended to constitute, the Charged Portfolio) or for the exercise of the rights, powers and remedies of the Security Agent provided by or pursuant to this Deed or by law in each case in accordance with the rights vested in it under this Deed.

6. CHARGOR’S REPRESENTATIONS AND WARRANTIES

6.1 Representations

The Chargor hereby makes the following representations and warranties to the Security Agent (for and on behalf of the Secured Parties) and acknowledges that the Secured Parties have relied upon those representations and warranties.

(a) Legal Beneficial Owner

It is the sole and absolute legal and beneficial owner of all of its Charged Portfolio free from any Security (as defined in the Senior Secured Facility Agreement) (except as created by this Deed and save as otherwise expressly permitted hereunder).

(b) No disposal

Save as otherwise expressly permitted/required by this Deed, it has not sold, transferred or otherwise disposed of, or agreed to sell, transfer or otherwise dispose of, the benefit of all or any of its rights, title and interest in its Charged Portfolio or any part thereof.

(c) Particulars of Share Capital

The particulars of the Shares as set out in Schedule 1 (Particulars of Shares) are accurate in all respects and the Shares constitute the entire issued share capital of the Company.

(d) Repetition

The representations set out in this Clause 6.1 (Representations) are deemed to be made by the Chargor (by reference to the facts and circumstances then existing) on the date of each Utilisation Request and the first day of each Interest Period.

6.2 Undertakings

(a) Disposals and Negative pledge

The Chargor shall not enter into a single transaction or a series of transactions (whether related or not) and whether voluntarily or involuntarily, to sell, lease, transfer or otherwise dispose of the whole or any part of the Charged Portfolio and will not create or permit to subsist any security interest on any part of the Charged Portfolio or otherwise deal with any part of the Charged Portfolio, save as may be permitted under the Finance Documents.

(b) Calls on Shares

the Chargor on demand together with interest on those sums. Such interest shall be calculated from the due date up to the actual date of payment (after, as well as before, judgment) in accordance with the provisions of the Senior Secured Facility Agreement.

(c) Registration

The Chargor shall procure and shall do all things necessary to ensure that the details of the Charges created by this Deed (in form reasonably satisfactory to the Security Agent) are duly registered with the Accounting and Corporate Regulatory Authority in Singapore within 10 Business Days of the date of this Deed, and shall procure that all registration and stamping requirements necessary for the perfection of the security created under this Deed are effected within the applicable time frame.

7. POWER OF ATTORNEY

7.1 Appointment and powers

The Chargor by way of security irrevocably appoints the Security Agent and any Receiver severally to be its attorney and in its name, on its behalf and as its act and deed to execute, deliver and perfect all documents and do all things which the attorney may consider to be required or desirable for:

(a) carrying out any obligation imposed on the Chargor by this Deed or any other agreement binding on the Chargor to which the Security Agent is a party (including the execution and delivery of any deeds, charges, assignments or other security and any transfers of the Charged Portfolio); and

(b) enabling the Security Agent to exercise, or delegate the exercise of, all or any of the Collateral Rights;

(c) enabling any Receiver to exercise, or delegate the exercise of, any of the rights, powers and authorities conferred on them by or pursuant to this Deed or by law.

7.2 Exercise of the power of attorney

Until the occurrence of an Acceleration Event, the Security Agent agrees not to exercise the rights of power of attorney granted to it pursuant to Clause 7.1 (Appointment and powers).

7.3 Ratification

The Chargor hereby declares that such power of attorney has been given for valuable consideration and shall remain irrevocable for so long as any part of the Secured Obligations remains outstanding. The Chargor hereby ratifies and confirms and agrees to ratify and confirm all things done or purported to be done and all documents executed by any attorney in the exercise or purported exercise of all or any of his powers, authorities and discretions referred to in Clause 7.1 (Appointment and powers) above, in each case except for the gross negligence, wilful misconduct of the attorney

or the attorney has acted in breach of any applicable law or the terms of the Finance Documents.

8. SECURITY ENFORCEMENT

8.1 Time for Enforcement

On and at any time after the occurrence of an Acceleration Event or if the Chargor requests the Security Agent to exercise any of its powers under this Deed, the security created by or pursuant to this Deed is immediately enforceable and the Security Agent may, without notice to the Chargor or prior authorisation from any court, in its absolute discretion:

(a) secure and perfect its title to all or any part of the Charged Portfolio (including transferring the Charged Portfolio into the name of the Security Agent or its nominees);

(b) enforce all or any part of the Security (at the times, in the manner and on the terms it thinks fit) and take possession of and hold, sell, or otherwise dispose of all or any part of the Charged Portfolio (at the time, in the manner and on the terms it thinks fit); and

(c) whether or not it has appointed a Receiver, exercise all or any of the powers, authorisations and discretions conferred by the Act (as varied or extended by this Deed, but free from the restrictions imposed by Section 25 thereof) on mortgagees and by this Deed on any Receiver or otherwise conferred by law on mortgagees or Receivers.

8.2 Power of sale

(a) After the security created by this Deed has become enforceable in accordance with Clause 8.1 (Time for enforcement), the Security Agent shall be entitled, without prior notice to the Chargor or prior authorisation from any court, to sell or otherwise dispose of all or any part of the Charged Portfolio (at the times, in the manner and on the terms it thinks fit). The Security Agent shall be entitled to apply the proceeds of that sale or other disposal in paying the costs of that sale or disposal and in or towards the discharge of the Secured Obligations in accordance with the provisions of the Finance Documents.

(b) The security created by this Deed shall become immediately enforceable and the power of sale and other powers conferred by the Act and/or this Deed shall arise and may be immediately exercised after the security created by this Deed has become enforceable in accordance with Clause 8.1 (Time for enforcement).

(c) The powers conferred by this Deed in relation to the Charged Portfolio or any part thereof on the Security Agent shall be in addition to and not in substitution for the powers conferred on mortgagees under the Act, which shall apply to the security created by this Deed except insofar as they are expressly or impliedly excluded. Where there is any ambiguity or conflict between the powers contained in the Act and those conferred by this Deed as

aforesaid or where the powers or protections in this Deed are more extensive or less restricted than those provided by the Act, then the terms of this Deed shall prevail to the extent permitted by law.

(d) Section 21 of the Act shall not apply to this Deed.

(e) A certificate in writing by an officer or agent of the Security Agent that any power of sale or other disposal has arisen and is exercisable shall be conclusive evidence of that fact, in favour of a purchaser of all or any part of the Charged Portfolio. No person dealing with the Security Agent shall be concerned to enquire whether any event has happened upon which any of the powers, authorities and discretions conferred by or pursuant to this Deed in relation to such property or any part thereof are or may be exercisable by the Security Agent or otherwise as to the propriety or regularity of acts purporting or intended to be in exercise of any such powers.

8.3 Chargee’s liability

Neither the Security Agent nor any Receiver will be liable to account as mortgagee or mortgagee in possession in respect of the Charged Portfolio or be liable for any loss upon realisation or for any neglect or default of any nature whatsoever in connection with the Charged Portfolio (other than the gross negligence, wilful default or breach of the terms of this Agreement by the Security Agent or any Receiver) for which a mortgagee or mortgagee in possession might as such be liable.

9. RECEIVERS AND ADMINISTRATORS

9.1 Appointment and removal

At any time after having been requested to do so by the Chargor or after this Deed becomes enforceable in accordance with Clause 8 (Security Enforcement), the Security Agent may by deed or otherwise (acting through an authorised officer of the Security Agent), without prior notice to the Chargor:

(a) appoint one or more persons to be a Receiver of the whole or any part of the Charged Portfolio;

(b) appoint one or more Receivers of separate parts of the Charged Portfolio respectively;

(c) remove (so far as it is lawfully able) any Receiver so appointed; and

(d) appoint another person(s) as an additional or replacement Receiver(s).

9.2 Rights of Receivers

Any Receiver referred to in this Clause 9 (Appointment and Removal) may enjoy the benefit or enforce the terms of this Clause in accordance with the provisions of the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore.

9.3 Capacity of Receivers

Each person appointed to be a Receiver pursuant to Clause 9.1 (Appointment and removal) will be:

(a) entitled to act individually or together with any other person appointed or substituted as Receiver; and

(b) for all purposes deemed to be the agent of the Chargor which shall be solely responsible for his acts, defaults and liabilities and for the payment of his remuneration and no Receiver shall at any time act as agent for the Security Agent.

9.4 Statutory powers of appointment

The powers of appointment of each Receiver shall be in addition to all statutory and other powers of appointment of the Security Agent under the Act (as extended by this Deed) or otherwise and such powers shall remain exercisable from time to time by the Security Agent in respect of any part of the Charged Property.

9.5 Powers of Receivers

Every Receiver shall (subject to any restrictions in the instrument appointing him but notwithstanding any winding-up or dissolution of the Chargor) have and be entitled to exercise, in relation to the Charged Portfolio (and any assets of the Chargor which, when got in, would be Charged Portfolio) in respect of which he was appointed, and as varied and extended by the provisions of this Deed (in the name of or on behalf of the Chargor or in his own name and, in each case, at the cost of the Chargor):

(a) all the powers conferred by the Act on mortgagors and on mortgagees in possession and on receivers appointed under that Act;

(b) all the powers of a receiver appointed under the Companies Act, Chapter 50 of Singapore;

(c) all the powers and rights of an absolute owner and power to do or omit to do anything which the Chargor itself could do or omit to do; and

(d) the power to do all things (including bringing or defending proceedings in the name or on behalf of the Chargor) which seem to such receiver to be incidental or conducive to:

(i) any of the functions, powers, authorities or discretions conferred on or vested in him; or

(ii) the exercise of the Collateral Rights (including realisation of all or any part of the Charged Portfolio); or

(iii) bringing to his hands any assets of the Chargor forming part of, or which when got in would be, Charged Portfolio.

9.6 Valid discharge

The receipt of the Security Agent or any Receiver shall be a conclusive discharge to a purchaser and, in making any sale or disposal of any of the Charged Portfolio or making any acquisition, the Security Agent or any Receiver may do so for such consideration, in such manner and on such terms as it thinks fit.

9.7 Protection of purchasers

No purchaser or other person dealing with the Security Agent or any Receiver shall be bound to inquire whether the right of the Security Agent or such Receiver to exercise any of its powers is properly constituted, has arisen or become exercisable or be concerned with any propriety or regularity on the part of the Security Agent or such Receiver in such dealings, or as to the application of any money borrowed or raised.

9.8 Discretions

Any liberty or power which may be exercised or any determination which may be made under this Deed by the Security Agent or any Receiver may be exercised or made in its absolute and unfettered discretion without any obligation to give reasons.

10. CHARGOR’S OBLIGATIONS

The obligations of the Chargor and the Collateral Rights shall not be discharged, impaired or otherwise affected by:

(a) any winding-up, dissolution, judicial management, administration or re organisation of or other change in the Chargor or any other company, corporation, partnership or other person;

(b) any of the Secured Obligations being at any time illegal, invalid, unenforceable or ineffective;

(c) any time or other indulgence being granted to the Chargor or any other company, corporation, partnership or other person;

(d) any amendment, variation, waiver or release of any of the Secured Obligations and any amendment, modification or variation of any of the Finance Documents;

(e) any failure to take or failure to realise the value of any other collateral in respect of the Secured Obligations or any release, discharge, exchange or substitution of any such collateral; or

(f) any other act, event or omission which but for this provision would or might operate to impair, discharge or otherwise affect the obligations of the Chargor hereunder.

11. EFFECTIVENESS OF COLLATERAL

11.1 Collateral Cumulative

The collateral constituted by this Deed and the Collateral Rights shall be cumulative, in addition to and independent of every other security which the Security Agent or any other Secured Party may at any time hold for the Secured Obligations or any rights, powers and remedies provided by law. No prior security held by the Security Agent or any other Secured Party over the whole or any part of the Charged Portfolio shall merge into the collateral constituted by this Deed.

11.2 No Waiver

No failure to exercise, nor any delay in exercising, on the part of the Security Agent, any right, power or remedy of the Security Agent provided by this Deed or by law shall operate as a waiver, nor shall any single or partial exercise of that right, power or remedy prevent any further or other exercise of that or any other right, power or remedy of the Security Agent provided by this Deed or by law.

11.3 Illegality, Invalidity, Unenforceability

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

11.4 No liability

None of the Security Agent, its nominee(s) or any receiver appointed pursuant to this Deed shall be liable by reason of (a) taking any action permitted by this Deed or (b) any neglect or default in connection with the Charged Portfolio or (c) the taking possession or realisation of all or any part of the Charged Portfolio, except in the case

of gross negligence or wilful default upon its part or in breach of the terms of this Deed.

11.5 Continuing security

(a) The Security from time to time constituted by this Deed is a continuing security and will remain in full force and effect as a continuing security until released or discharged by the Security Agent.

(b) No part of the Security from time to time constituted by this Deed will be considered satisfied or discharged by any intermediate payment, discharge or satisfaction of the whole or any part of the Secured Obligations.

11.6 Immediate recourse

The Chargor waives any right it may have of first requiring the Security Agent or a Secured Party to proceed against or enforce any other rights or Security or claim payment from any person before claiming from the Chargor under this Deed. This waiver applies irrespective of any law or any provision of this Deed to the contrary.

11.7 Avoidance of Payments

Notwithstanding Clause 3.3 (Release) if any amount paid or credited to the Security Agent is capable of being avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws the liability of the Chargor under this Deed and the security constituted by this Deed shall continue and that amount shall not be considered to have been irrevocably paid.

11.8 No prejudice

The Security created by or pursuant to this Deed and the rights, powers and remedies of the Security Agent provided by or pursuant to this Deed or by law shall not be prejudiced by any unenforceability or invalidity of any other agreement or document or

by any time or indulgence granted to the Chargor or any other person by the Security Agent or any other Secured Party or by any variation of the terms upon which the Security Agent holds the Security or by any other thing which might otherwise prejudice the Security or any rights, powers and remedies of the Security Agent provided by or pursuant to this Deed or by law.

12. COSTS AND LIABILITY

12.1 Liability

Save for the gross negligence, wilful default or breach of this Agreement, none of the Security Agent, its nominee(s) or any Receiver shall be liable by reason of:

(a) taking any action permitted by this Deed; or

(b) any neglect or default in connection with the Charged Portfolio; or

(c) the taking possession or realisation of all or any part of the Charged Portfolio.

13. CURRENCY INDEMNITY

13.1 Currency Indemnity

If any sum due from the Chargor under this Deed (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:

(a) making or filing a claim or proof against that Obligor;

(b) obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,

the Chargor shall as an independent obligation, within three Business Days of demand, indemnify the Security Agent from and 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.

13.2 Waiver

The Chargor 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 under the Finance Documents.

14. APPLICATION OF PROCEEDS

14.1 Application of proceeds

All monies received, recovered or realised by the Security Agent under this Deed (including the proceeds of any conversion of currency) shall (subject to the claims of any person having prior rights thereto and by way of variation of the provisions of the Conveyancing and Law of Property Act, Chapter 61 of Singapore) be applied

(notwithstanding any purported appropriation by the Chargor) in accordance with Clause 13 (Application of proceeds) of the Intercreditor Agreement.

14.2 Arrangements among Secured Parties

The Chargor acknowledges that the Secured Parties have made arrangements among themselves in relation to the distributions and applications of moneys received or recovered by the Security Agent or any Receiver or Delegate and agrees not to interfere or do anything contrary to such arrangements, and agrees that such distributions and applications shall be binding on the Chargor (notwithstanding any purported application by the Chargor).

15. OTHER SECURITY INTERESTS

15.1 Redemption or transfer

In the event of any action, proceeding or step being taken to exercise any powers or remedies conferred by any prior ranking security in case of exercise by the Security Agent or any Receiver of any power of sale under this Deed the Security Agent may redeem such prior security or procure the transfer thereof to itself.

15.2 Accounts

The Security Agent may settle and pass the accounts of the prior security and any accounts so settled and passed will be conclusive and binding on the Chargor.

15.3 Costs of redemption or transfer

All principal monies, interest, costs, charges and expenses of and incidental to any redemption or transfer will be paid by the Chargor to the Security Agent on demand together with accrued interest thereon as well as before judgment at the rate from time to time applicable to unpaid sums specified in the Senior Secured Facility Agreement(1) from the time or respective times of the same having been paid or incurred until payment thereof (after as well as before judgment).

15.4 Subsequent Interests

If the Security Agent at any time receives notice of any subsequent Security or other interest affecting all or any part of the Charged Portfolio, all payments made by the Chargor to the Security Agent or any of the Secured Parties after that time shall be treated as having been credited to a new account of the Chargor and not as having been applied in reduction of the Secured Obligations as at the time when the Security Agent received notice.

16. SUSPENSE ACCOUNTS

16.1 Suspense Accounts

All monies received, recovered or realised by the Security Agent under this Deed (including the proceeds of any conversion of currency), save where the amount is sufficient to discharge the Secured Obligations in full, may in the discretion of the

Security Agent be credited to any interest bearing suspense or impersonal account maintained with the Security Agent or any bank, building society or financial institution as it considers appropriate and may be held in such account for so long as the Security Agent may think fit pending their application from time to time (as the Security Agent is entitled to do in its discretion) in or towards the discharge of any of the Secured Obligations and save as provided herein no party will be entitled to withdraw any amount at any time standing to the credit of any suspense or impersonal account referred to above.

17. NOTICES

17.1 Communications in writing

Any communication to be made under or in connection with this Deed shall be made in writing and, unless otherwise stated, may be made by fax, letter or electronic mail.

17.2 Addresses and electronic communication

(a) The address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with this Deed is that identified with its name below, or any substitute address or fax number or department or officer as one Party may notify the other Party by not less than five Business Days’ notice.

(b) Any communication to be made between the Parties under or in connection with this Deed may be made by electronic mail or other electronic means and the Parties:

(i) agree that, unless and until notified to the contrary, this is to be an accepted form of communication;

(ii) shall notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and

(iii) shall notify each other of any change to their electronic mail address or any other such information supplied by them.

17.3 Delivery

(a) Any communication or document made or delivered by one Party to another under or in connection with this Deed will only be effective:

(i) if by way of fax, when received in legible form;

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

(iii) if by way of electronic communication, only when actually received in readable form,

and, if a particular department or officer is specified as part of its address details provided under Clause 17.2 (Addresses and electronic communication), if addressed to that department or officer.

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

17.4 English language

(a) Any notice given under or in connection with this Deed must be in English.

(b) All other documents provided under or in connection with this Deed must be:

(i) in English; or

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

18. ASSIGNMENT

18.1 Permitted Successors

This Deed shall be binding upon and shall inure to the benefit of each party and its direct or subsequent legal successors, permitted transferees and assigns.

18.2 Security Agent Successors

This Deed shall remain in effect despite any amalgamation or merger (however effected) relating to the Security Agent; and references to the Security Agent shall include any assignee or successor in title of the Security Agent and any person who, under the laws of its jurisdiction of incorporation or domicile, has assumed the rights and obligations of the Security Agent under this Deed or to which, under such laws, those rights and obligations have been transferred.

18.3 Disclosure

Without prejudice to any Secured Party’s right to disclose information whether under common law or the Banking Act, Cap. 19 of Singapore (“Banking Act”), the Security Agent shall be entitled to disclose such information concerning the Chargor or any other person and this Deed as the Security Agent considers appropriate to any actual or proposed direct or indirect successor or to any person to whom information may be required to be disclosed by applicable law.

This Clause 18.3 is not, and shall not be deemed to constitute, an express or implied covenant by any Secured Party with any Obligor for a higher degree of confidentiality that prescribed in Section 47 of the Banking Act and in the Third Schedule of the Banking Act.

19. WAIVERS AND COUNTERPARTS

19.1 Waivers

No waiver by the Security Agent of any of its rights under this Deed shall be effective unless given in writing.

19.2 Counterparts

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

20. LAW

This Deed is governed by Singapore law.

21. ENFORCEMENT

21.1 Jurisdiction of Singapore Courts

(a) The courts of Singapore have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Deed) (a “Dispute”).

(b) The parties agree that the courts of Singapore are the most appropriate and convenient courts to settle disputes and accordingly no party will argue to the contrary.

(c) This Clause 21 is for the benefit of the Security Agent only. As a result and notwithstanding Clause 21.1(a), it does not prevent the Security Agent from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Security Agent may take concurrent proceedings in any number of jurisdictions.

THE SCHEDULE

Beneficial Owner	Shares (shares of S$1 each in the issued capital of the Company)	Registered Holder

Oriental Prospect Pte. Ltd.	1	Oriental Prospect Pte. Ltd.

THIS DEED has been signed on behalf of the Security Agent and executed as a deed by the Chargor and is delivered by it on the date specified above.

The Chargor

EXECUTED as a DEED

SIGNED, SEALED AND		)
DELIVERED BY		)

/s/ ZHANG ZHANKUI		)
		)
As attorney(s) for and on behalf of		)
ORIENTAL PROSPECT PTE. LTD.		)
in the presence of:


/s/ WANG LIANG
Witness’s Signature


The Security Agent

SIGNED BY

CHINA DEVELOPMENT BANK

By:/s/ XU QIYING


Address:


Fax No.:

Email:

Attention:

February 3, 2008

EX-99.7 8 a08-4773_1ex99d7.htm EX-99.7

Exhibit 99.7

CLIFFORD CHANCE WONG

CLIFFORD CHANCE WONG PTE LTD

EXECUTION VERSION

DATED FEBRUARY 2008

ORIENTAL PROSPECT PTE. LTD.
(Singapore company registration number 200801581H)
as Company

in favour of

CHINA DEVELOPMENT BANK
as Security Agent

DEBENTURE

CONTENTS

Clause		Page

1.	Definitions And Interpretation	1

2.	Payment Of Secured Obligations	4

3.	Fixed Charges, Assignments And Floating Charge	4

4.	Crystallisation Of Floating Charge	5

5.	Perfection Of Security	6

6.	Further Assurance	8

7.	Negative Pledge And Disposals	9

8.	Investments	9

9.	Accounts	10

10.	Monetary Claims	11

11.	Insurances	11

12.	Real Property	12

13.	General Undertakings	13

14.	Enforcement Of Security	14

15.	Extension And Variation Of The Conveyancing And Law Of Property Act, Chapter 61 Of Singapore	14

16.	Appointment Of Receiver	15

17.	Powers Of Receiver	16

18.	Application Of Monies	17

19.	Protection Of Purchasers	17

20.	Power Of Attorney	17

21.	Effectiveness Of Security	18

22.	Release Of Security	20

23.	Set-Off	21

24.	Subsequent Security Interests	21

25.	Currency Indemnity	21

26.	Assignment	22

27.	Disclosure	22

28.	Notices	22

29.	Indemnity	22

30.	Payments Free Of Deduction	23

31.	Discretion And Delegation	23

32.	Perpetuity Period	23

33.	Governing Law	23

34.	Counterparts	23

35.	Jurisdiction	23

Schedule 1 FORMS OF NOTICE OF ASSIGNMENT		25

	Part A Form Of Notice Of Assignment Of Insurances	25

Schedule 2 FORM OF NOTICE OF ASSIGNMENT OF ACCOUNT		27

Schedule 3 FORM OF NOTICE OF CHARGE OVER ACCOUNT		29

THIS DEBENTURE is made on

BY:

(1) ORIENTAL PROSPECT PTE. LTD., as company incorporated in Singapore with registration number 200801581H (the “Company”)

IN FAVOUR OF:

(2) CHINA DEVELOPMENT BANK as Security Agent for the Secured Parties on the terms and conditions set out in the Facility Agreement (the “Security Agent” which expression shall include any person for the time being appointed as Security Agent or as an additional Security Agent for the purpose of and in accordance with the Facility Agreement).

RECITALS:

(A) The Board of Directors of the Company is satisfied that entering into this Debenture is for the purposes and to the benefit of the Company and its business.

(B) The Security Agent holds the benefit of this Debenture on trust for the Secured Parties on the terms of the Finance Documents.

IT IS AGREED as follows:

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this Debenture:

“Account” means any account opened or maintained by the Company with the Security Agent or any other person (and any replacement account or subdivision or sub-account of that account), the debt or debts represented thereby and all Related Rights.

“Assigned Account” means any Account that may from time to time be identified in writing as an Assigned Account by the Security Agent.

“Charged Property” means all the assets and undertaking of the Company which from time to time are the subject of the security created or expressed to be created in favour of the Security Agent by or pursuant to this Debenture.

“Collateral Rights” means all rights, powers and remedies of the Security Agent provided by or pursuant to this Debenture or by law.

“Facility Agreement” means the facility agreement dated on or about the date hereof of this deed between (i) Oriental Prospect, as borrower, (ii) China Development Bank

as arranger, (iii) China Development Bank as agent and security agent and (iv) the financial institutions named therein as the Lenders.

“Finance Document” has the same meaning as in the Facility Agreement.

“Insurance Policy” means any policy of insurance (including life insurance or assurance) in which the Company may from time to time have an interest.

“Intellectual Property” means any patents, trade marks, service marks, designs, business names, copyrights, design rights, moral rights, inventions, confidential information, know-how and other intellectual property rights and interests, whether registered or unregistered, the benefit of all applications and rights to use such assets and all Related Rights.

“Investments” means:

(a) any stocks, shares, debentures, securities and certificates of deposit;

(b) all interests in collective investment schemes; and

in each case whether held directly by or to the order of the Company or by any trustee, nominee, fiduciary or clearance system on its behalf and all Related Rights (including all rights against any such trustee, nominee, fiduciary or clearance system).

“Monetary Claims” means any book and other debts and monetary claims owing to the Company and any proceeds of such debts and claims (including any claims or sums of money deriving from or in relation to any Intellectual Property, any Investment, the proceeds of any Insurance Policy, any court order or judgment, any contract or agreement to which the Company is a party and any other assets, property, rights or undertaking of the Company).

“Notice of Assignment” means a notice of assignment in substantially a form set out in Schedule 1 (Forms of Notice of Assignment) or in such form as may be specified by the Security Agent.

“Notice of Assignment of Account” means a notice of assignment in substantially a form set out in Schedule 2 (Forms of Notice of Assignment of Account) or in such form as may be specified by the Security Agent.

“Obligor” has the same meaning as in the Facility Agreement.

“Real Property” means:

(a) any freehold, leasehold or immovable property; and

(b) any buildings, fixtures, fittings, fixed plant or machinery from time to time situated on or forming part of such freehold or leasehold property;

and includes all Related Rights.

“Receiver” means a receiver or receiver and manager or judicial manager of the whole or any part of the Charged Property and that term will include any appointee made under a joint and/or several appointment.

“Related Rights” means, in relation to any asset:

(a) the proceeds of sale of any part of that asset;

(b) all rights under any licence, agreement for sale or agreement for lease in respect of that asset;

(c) all rights, powers, benefits, claims, contracts, warranties, remedies, security, guarantees, indemnities or covenants for title in respect of that asset; and

(d) any monies and proceeds paid or payable in respect of that asset.

“Secured Obligations” has the same meaning as in the Facility Agreement.

“Secured Parties” means the Security Agent, any Receiver or Delegate, and each of the Agents and the Lenders from time to time but, in the case of each Agent or Lender, only if it is a party to this Agreement or has delivered to the Security Agent a duly executed Lender Accession Undertaking accepted by the Security Agent and the relevant Agent.

“Tangible Moveable Property” means any plant, machinery, office equipment, computers, vehicles and other chattels (excluding any for the time being forming part of the Company’s stock in trade or work in progress) and all Related Rights.

1.2 Terms defined in other Finance Documents

Unless defined in this Debenture, or the context otherwise requires, a term defined in the Facility Agreement or in any other Finance Document has the same meaning in this Debenture, or any notice given under or in connection with this Debenture, as if all references in those defined terms to the Facility Agreement or other Finance Document were a reference to this Debenture or that notice.

1.3 Construction

In this Debenture:

1.3.1 the rules of interpretation contained in clause 1.2 (Construction) of the Facility Agreement shall apply to the construction of this Debenture;

1.3.2 any reference to the “Security Agent”, the “Company”, the “Agent” or the “Secured Parties” shall be construed so as to include its or their (and any subsequent) successors and any permitted transferees in accordance with their respective interests; and

1.3.3 references in this Debenture to any Clause or Schedule shall be to a clause or schedule contained in this Debenture.

1.4 Third Party Rights

Save for any Receiver, joint Receiver, any attorney of the Security Agent, any person appointed by any of the Security Agent’s attorneys, any nominee or delegate of the Security Agent or any attorney of the Receiver referred to in this Debenture, or unless expressly provided to the contrary, a person who is not a party to this Debenture has no right under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore to enforce or to enjoy the benefit of any term of this Debenture.

1.5 Duplication

To the extent that the provisions of this Debenture duplicate those of any other Security Document purporting to take security over any of the Charged Property, the provisions of that Security Document shall prevail.

2. PAYMENT OF SECURED OBLIGATIONS

2.1 Covenant to Pay

The Company covenants with the Security Agent to discharge each of the Secured Obligations on its due date in accordance with its respective terms.

3. FIXED CHARGES, ASSIGNMENTS AND FLOATING CHARGE

3.1 Fixed Charges

3.1.1 The Company, as legal and beneficial owner, charges in favour of the Security Agent as trustee for the Secured Parties, as security for the payment and discharge of the Secured Obligations, by way of first fixed charge (which so far as it relates to land in Singapore vested in the Company at the date of this Debenture (if any) shall be perfected by the execution of a legal mortgage in the prescribed form), all the Company’s right, title and interest from time to time in and to each of the following assets (subject to obtaining any necessary consent to such mortgage or fixed charge from any third party):

(a) the Real Property;

(b) the Tangible Moveable Property;

(c) the Accounts;

(d) the Intellectual Property;

(e) any goodwill and rights in relation to the uncalled capital of the Company;

(f) the Investments; and

(g) all Monetary Claims and all Related Rights other than any claims which are otherwise subject to a fixed charge or assignment (at law or in equity) pursuant to this Debenture.

3.2 Assignments

The Company, as legal and beneficial owner, assigns and agrees to assign absolutely to the Security Agent as trustee for the Secured Parties, as security for the payment

and discharge of the Secured Obligations, all the Company’s right, title and interest from time to time in and to each of the following assets (subject to obtaining any necessary consent to that assignment from any third party):

3.2.1 the proceeds of any Insurance Policy and all Related Rights; and

3.2.2 all rights and claims in relation to any Assigned Account.

3.3 Floating Charge

3.3.1 The Company, as legal and beneficial owner, charges in favour of the Security Agent as trustee for the Secured Parties, as security for the payment and discharge of the Secured Obligations by way of first floating charge, all present and future assets and undertaking of the Company.

3.3.2 The floating charge created by paragraph 3.3.1 above shall be deferred in point of priority to all fixed Security validly and effectively created by the Company under the Finance Documents in favour of the Security Agent as trustee for the Secured Parties as security for the Secured Obligations.

3.4 Limitations

There shall be excluded from the Security created by this Clause 3 any asset or undertaking on or over which the creation of an encumbrance is unlawful or would present a material risk of personal or criminal liability for any officer of the Company or a material risk of breach of fiduciary duty by such officer for so long as it remains unlawful or presents a material risk.

4. CRYSTALLISATION OF FLOATING CHARGE

4.1 Crystallisation: By Notice

The Security Agent may at any time by notice in writing to the Company convert the floating charge created by Clause 3.3 (Floating Charge) with immediate effect into a fixed charge as regards any property or assets specified in the notice if:

4.1.1 an Acceleration Event has occurred; or

4.1.2 the Security Agent reasonably considers that any of the Charged Property is in jeopardy or in danger of being seized or sold pursuant to any form of legal process; or

4.1.3 the Security Agent reasonably considers that it is necessary in order to protect the priority of the security.

4.2 Crystallisation: Automatic

Notwithstanding Clause 4.1 (Crystallisation: By Notice) and without prejudice to any law which may have a similar effect, the floating charge will automatically be converted (without notice) with immediate effect into a fixed charge as regards all the assets subject to the floating charge if:

4.2.1 the Company creates or attempts to create any Security (other than any Security permitted under clause 19.3 (Negative Pledge) of the First Ranking Facility Agreement, over any of the Charged Property; or

4.2.2 any person levies or attempts to levy any distress, execution or other process against any of the Charged Property;

4.2.3 a resolution is passed or an order is made for the winding-up, dissolution, judicial management or re-organisation of the Company; or

4.2.4 any person (who is entitled to do so) gives notice of its intention to appoint a judicial manager to the Company or files such a notice with the court.

5. PERFECTION OF SECURITY

5.1 Notices of Assignment

The Company shall deliver to the Security Agent (or procure delivery of) Notices of Assignment duly executed by, or on behalf of, the Company:

5.1.1 in respect of each Assigned Account, in existence on the date of this Debenture promptly and in any event no later than 15 Business Days after the Settlement Date (as defined in the First Ranking Facility Agreement) or upon the designation at any time by the Security Agent of any Account as an Assigned Account and shall use all reasonable endeavours to procure acknowledgements of the notices of assignment from the relevant account bank;

5.1.2 in respect of any asset which is the subject of an assignment pursuant to Clause 3.2 (Assignments) promptly and in any event no later than 15 Business Days upon the request of the Security Agent from time to time, and shall use all reasonable endeavours to procure that each notice is acknowledged by the obligor or debtor specified by the Security Agent.

5.2 Notices of Charge

5.2.1 The Company shall promptly and in any event no later than 15 Business Days upon the execution of this Debenture and from time to time upon its opening of any Account deliver to the Security Agent (or procure delivery of) Notices of Charge duly executed by, or on behalf of, the Company and acknowledged by each of the banks or financial institutions with which any of the Accounts (other than an Assigned Account) are opened or maintained, and shall use all reasonable endeavours to procure that each notice is acknowledged by such bank or financial institution.

5.2.2 The execution of this Debenture by the Company and the Security Agent shall constitute notice to the Security Agent of the charge created over any Account opened or maintained with the Security Agent.

5.3 Real Property: Delivery of Documents of Title

The Company shall upon the execution of this Debenture, and upon the acquisition by the Company of any interest in any freehold, leasehold or other immovable property, deliver (or procure delivery) to the Security Agent of, and the Security Agent shall be entitled to hold and retain, all title deeds, agreements, leases, certificates and other documents constituting or evidencing title relating to such property.

5.4 Lodgement or Registration of Caveats and Documents

5.4.1 Without prejudice to any right under this Debenture at law or in equity the Security Agent shall be entitled at any time to lodge or register at the Singapore Land Authority or any other registry, any caveat or caveats and other documents or instruments against any Real Property as are required by the Security Agent.

5.4.2 Without prejudice to any provisions in this Debenture, in the case of any Real Property where separate title has not been issued, the Company hereby covenants and undertakes with the Security Agent:

(a) that when the Company shall be in the position to call for the delivery of the title deed or other documents of title to the Real Property and the transfer or other assurance of such Real Property in favour of the Company, the Company will at once notify the Security Agent in writing;

(b) that the Company shall at the Company’s own expense obtain the grant to the Company of the transfer or assurance or other document of title to the Real Property pursuant to the contract for sale or sale agreement and upon such grant shall forthwith deliver to the Security Agent the said transfer or assurance or such other document of title and shall at the Company’s expense procure and obtain, to the extent possible, the necessary consent or permission from the vendor of the Real Property or other competent authority or authorities for the charge hereby created and any documents or instruments (as the case may be) and registration thereof with the appropriate authority or authorities;

(c) that as soon as the title deed or other documents of title to the Real Property shall have been issued the Company shall forthwith authorise and cause the same to be delivered to the Security Agent and shall perfect and complete any mortgage or other documents or instruments in favour of the Security Agent as may be required by the Security Agent; and

(d) that if the Company shall neglect or refuse to take delivery of and accept the title deed and/or the transfer or other assurance of the Real Property pursuant to the terms of any contract for sale or sale agreement in respect of such Real Property it shall be lawful for the Security Agent in the name of the Company or otherwise to demand and receive the same from the vendor of such Real Property.

5.5 Further Advances

Subject to the terms of the Facility Agreement each Lender is under an obligation to make further Advances to the Company and that obligation will be deemed to be incorporated into this Debenture as if set out in this Debenture.

5.6 Registration of Intellectual Property

The Company shall, if requested by the Security Agent, execute all such documents and do all acts that the Security Agent may reasonably require to record the interest of the Security Agent in any registers relating to any registered Intellectual Property.

6. FURTHER ASSURANCE

6.1 Further Assurance: General

6.1.1 The Company shall promptly at its own cost do all such acts or execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions) as the Security Agent may reasonably specify (and in such form as the Security Agent may reasonably require in favour of the Security Agent or its nominee(s)):

(a) to perfect the security created or intended to be created in respect of the Charged Property (which may include the execution by the Company of a mortgage, charge or assignment over all or any of the assets constituting, or intended to constitute, Charged Property) or for the exercise of the Collateral Rights;

(b) to confer on the Security Agent security over any property and assets of the Company located in any jurisdiction outside Singapore equivalent or similar to the security intended to be conferred by or pursuant to this Debenture; and/or

(c) to facilitate the realisation of the Charged Property.

6.2 Necessary Action

The Company shall take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any security conferred or intended to be conferred on the Security Agent by or pursuant to this Debenture.

6.3 Consents

The Company shall use all reasonable endeavours to promptly obtain (in form and content reasonably satisfactory to the Security Agent) any consents necessary to enable the assets of the Company to be the subject of an effective fixed charge or assignment pursuant to Clause 3 (Fixed Charges, Assignments and Floating Charge) and, immediately upon obtaining any such consent, the asset concerned shall become subject to such security and the Company shall promptly deliver a copy of each consent to the Security Agent.

7. NEGATIVE PLEDGE AND DISPOSALS

7.1 Negative Pledge

The Company undertakes that it shall not, at any time during the subsistence of this Debenture, create or permit to subsist any Security over all or any part of the Charged Property other than Security permitted pursuant to the Finance Documents.

7.2 No Disposal of Interests

The Company undertakes that it shall not (and shall not agree to) at any time during the subsistence of this Debenture, except as permitted pursuant to the Finance Documents or by this Clause 7:

7.2.1 execute any conveyance, transfer, lease or assignment of, or other right to use or occupy, all or any part of the Charged Property;

7.2.2 create any legal or equitable estate or other interest in, or over, or otherwise relating to, all or any part of the Charged Property;

7.2.3 (a) grant or vary, or accept any surrender, or cancellation or disposal of, any lease, tenancy, licence, consent or other right to occupy in relation to any of the Charged Property or (b) allow any person any right to use or occupy or to become entitled to assert any proprietary interest in, or right over, the Charged Property, which may, in each case, adversely affect the value of any of the Charged Property or the ability of the Security Agent to exercise any of the Collateral Rights; or

7.2.4 assign or otherwise dispose of any interest in any Account and no right, title or interest in relation to any Account maintained with the Security Agent, or the credit balance standing to any such Account shall be capable of assignment or other disposal.

8. INVESTMENTS

8.1 Investments: Payment of Calls

The Company shall pay when due all calls or other payments which may be or become due in respect of any of the Investments, and in any case of default by the Company in such payment, the Security Agent may, if it thinks fit, make such payment on behalf of the Company in which case any sums paid by the Security Agent shall be reimbursed by the Company to the Security Agent on demand and shall carry interest from the date of payment by the Security Agent until reimbursed in accordance with the terms of the Facility Agreement.

8.2 Investments: Delivery of Documents of Title

The Company shall promptly on the request of the Security Agent, deliver (or procure delivery) to the Security Agent, and the Security Agent shall be entitled to retain, all of the Investments and any certificates and other documents of title representing the Investments to which the Company (or its nominee(s)) is or becomes entitled together with any other document which the Security Agent may reasonably request (in such form and executed as the Security Agent may reasonably require) with a view to

perfecting or improving its security over the Investments or to registering any Investment in its name or the name of any nominee(s).

8.3 Investments: Exercise of Rights

The Company shall not exercise any of its rights and powers in relation to any of the Investments in any manner which, in the opinion of the Security Agent, would prejudice the value of, or the validity and/or enforceability of this Debenture hereunder or cause an Event of Default to occur.

9. ACCOUNTS

9.1 Accounts: Notification and Variation

The Company, during the subsistence of this Debenture:

9.1.1 shall promptly and in any event no later than 15 Business days from the date of this Debenture deliver to the Security Agent (and, if any change occurs thereafter, within 15 Business Days of such change), details of each material operating Account maintained by it with any bank or financial institution (other than with the Security Agent); and

9.1.2 shall not (unless otherwise permitted under the Finance Documents) without the Security Agent’s prior written consent, permit or agree to any variation of the rights attaching to any Account or close any Account.

9.2 Accounts: Operation Before Acceleration Event

The Company shall prior to the occurrence of an Acceleration Event be entitled to receive, withdraw or otherwise transfer any credit balance from time to time on any Account (other than an Assigned Account) subject to the terms of the Facility Agreement.

9.3 Accounts: Operation After Acceleration Event

After the occurrence of an Event of Default the Company shall not be entitled to receive, withdraw or otherwise transfer any credit balance from time to time on any Account except with the prior consent of the Security Agent.

9.4 Assigned Accounts

9.4.1 The Company shall not be entitled to receive, withdraw or otherwise transfer any credit balance from time to time on any Assigned Account except with the prior consent of the Security Agent or as permitted pursuant to the terms of the Facility Agreement.

9.4.2 The Security Agent shall, upon the occurrence of an Event of Default, be entitled without notice to exercise from time to time all rights, powers and remedies held by it as assignee of the Assigned Accounts and to:

(a) demand and receive all and any monies due under or arising out of each Assigned Account; and

(b) exercise all such rights as the Company was then entitled to exercise in relation to such Assigned Account or might, but for the terms of this Debenture, exercise.

9.5 Accounts: Application of Monies

The Security Agent shall, upon the occurrence of an Acceleration Event, be entitled without notice to apply, transfer or set-off any or all of the credit balances from time to time on any Account in or towards the payment or other satisfaction of all or part of the Secured Obligations in accordance with Clause 18 (Application of Monies).

10. MONETARY CLAIMS

10.1 Dealing with Monetary Claims

The Company shall not at any time following the occurrence of an Acceleration Event, without the prior written consent of the Security Agent:

10.1.1 deal with the Monetary Claims except by getting in and realising them in a prudent manner (on behalf of the Security Agent) and paying the proceeds of those Monetary Claims into an Account or as the Security Agent may require (and such proceeds shall be held upon trust by the Company for the Security Agent on behalf of the Secured Parties prior to such payment in);

10.1.2 factor or discount any of the Monetary Claims or enter into any agreement for such factoring or discounting; or

10.1.3 be entitled to withdraw or otherwise transfer the proceeds of the realisation of any Monetary Claims standing to the credit of any Account.

11. INSURANCES

11.1 Insurance: Undertakings

The Company shall at all times during the subsistence of this Debenture:

11.1.1 keep the Charged Property insured in accordance with good industry practice for companies carrying out businesses similar to the Company;

11.1.2 if required by the Security Agent, cause each insurance policy or policies relating to the Charged Property to contain (in form and substance reasonably satisfactory to the Security Agent) an endorsement naming the Security Agent as sole loss payee in respect of all claims until such time as the Security Agent notifies the insurer(s) to the contrary;

11.1.3 promptly pay all premiums and other monies payable under all its Insurance Policies and promptly upon request, produce to the Security Agent a copy of each policy and evidence (reasonably acceptable to the Security Agent) of the payment of such sums; and

11.1.4 if required by the Security Agent (but subject to the provisions of any lease of the Charged Property), deposit all Insurance Policies relating to the Charged Property with the Security Agent.

11.2 Insurance: Default

If the Company defaults in complying with Clause 11.1 (Insurance: Undertakings), the Security Agent may effect or renew any such insurance on such terms, in such name(s) and in such amount(s) as it reasonably considers appropriate, and all monies expended by the Security Agent in doing so shall be reimbursed by the Company to the Security Agent on demand and shall carry interest from the date of payment by the Security Agent until reimbursed in accordance with the terms of the Facility Agreement.

11.3 Application of Insurance Proceeds

All monies received under any Insurance Policies relating to the Charged Property shall (subject to the rights and claims of any person having prior rights to such monies), prior to the occurrence of an Acceleration Event, be applied in repairing, replacing, restoring or rebuilding the property or assets damaged or destroyed; after the occurrence of an Acceleration Event, the Company shall hold such monies upon trust for the Security Agent pending payment to the Security Agent for application in accordance with Clause 18 (Application of Monies) and the Company waives any right it may have to require that any such monies are applied in reinstatement of any part of the Charged Property.

12. REAL PROPERTY

12.1 Property: Notification

The Company shall immediately notify the Security Agent of any contract, conveyance, transfer or other disposition for the acquisition by the Company (or its nominee(s)) of any Real Property.

12.2 Lease Covenants

The Company shall, in relation to any lease, agreement for lease or other right to occupy to which all or any part of the Charged Property is at any time subject:

12.2.1 pay the rents (if the lessee) and observe and perform in all material respects the covenants, conditions and obligations imposed (if the lessor) on the lessor or, (if the lessee) on the lessee; and

12.2.2 not do any act or thing whereby any lease or other document which gives any right to occupy any part of the Charged Property becomes or may become subject to determination or any right of re-entry or forfeiture prior to the expiration of its term.

12.3 General Property Undertakings

The Company shall:

12.3.1 repair and keep in good and substantial repair and condition to the reasonable satisfaction of the Security Agent all the Real Property at any time forming part of the Charged Property;

12.3.2 not at any time without the prior written consent of the Security Agent sever or remove any of the fixtures forming part of the Real Property or any of the

plant or machinery (other than stock in trade or work in progress) on or in the Charged Property (except for the purpose of any necessary repairs or replacement of it); and

12.3.3 comply with and observe and perform (a) all applicable requirements of all planning and environmental legislation, regulations and bye-laws relating to the Real Property, (b) any conditions attaching to any planning permissions relating to or affecting the Real Property and (c) any notices or other orders made by any planning, environmental or other public body in respect of all or any part of the Real Property.

12.4 Entitlement to Remedy

If the Company fails to comply with any of the undertakings contained in this Clause 12, the Security Agent shall be entitled (with such agents, contractors and others as it sees fit), to do such things as may in the reasonable opinion of the Security Agent be required to remedy such failure and all monies spent by the Security Agent in doing so shall be reimbursed by the Company on demand with interest from the date of payment by the Security Agent until reimbursed in accordance with the terms of the Facility Agreement.

13. GENERAL UNDERTAKINGS

13.1 Intellectual Property

The Company shall during the subsistence of this Debenture in respect of any Intellectual Property which is material to or required in connection with its business:

13.1.1 take all such steps and do all such acts as may be necessary to preserve and maintain the subsistence and the validity of any such Intellectual Property; and

13.1.2 not use or permit any such Intellectual Property to be used in any way which may materially and adversely affect its value.

13.2 Registration and Stamping

The Company shall procure and shall do all things necessary to ensure that the details of the charges created by this Debenture (in form reasonably satisfactory to the Security Agent) are duly registered with the Accounting and Corporate Regulatory Authority in Singapore within 10 Business Days of the date of this Debenture, and shall procure that all registration and stamping requirements necessary for the perfection of the security created under this Debenture are effected within the applicable time frame.

13.3 Information and Access

The Company shall from time to time on request of the Security Agent, furnish the Security Agent with such information as the Security Agent may reasonably require about the Company’s business and affairs, the Charged Property and its compliance with the terms of this Debenture and the Company shall permit the Security Agent, its representatives, professional advisers and contractors, free access at all reasonable times and on reasonable notice to (a) inspect and take copies and extracts from the

books, accounts and records of the Company and (b) to view the Charged Property (without becoming liable as mortgagee in possession).

14. ENFORCEMENT OF SECURITY

14.1 Enforcement

At any time after the occurrence of an Acceleration Event, the security created by or pursuant to this Debenture is immediately enforceable and the Security Agent may, without notice to the Company or prior authorisation from any court, in its absolute discretion:

14.1.1 enforce all or any part of that security (at the times, in the manner and on the terms it thinks fit) and take possession of and hold or dispose of all or any part of the Charged Property; and

14.1.2 whether or not it has appointed a Receiver, exercise all or any of the powers, authorities and discretions conferred by the Conveyancing and Law of Property Act, Chapter 61 of Singapore (as varied or extended by this Debenture) on mortgagees and by this Debenture on any Receiver or otherwise conferred by law on mortgagees or Receivers.

14.2 No Liability as Mortgagee in Possession

Neither the Security Agent nor any Receiver shall be liable to account as a mortgagee in possession in respect of all or any part of the Charged Property or be liable for any loss upon realisation or for any neglect, default or omission in connection with the Charged Property to which a mortgagee or mortgagee in possession might otherwise be liable other than in the case of gross negligence, wilful default or breach of the terms of this Debenture by the Security Agent or that Receiver.

15. EXTENSION AND VARIATION OF THE CONVEYANCING AND LAW OF PROPERTY ACT, CHAPTER 61 OF SINGAPORE

15.1 Extension of Powers

Section 25 of the Conveyancing and Law of Property Act, Chapter 61 of Singapore shall not restrict the exercise by the Security Agent of the statutory power of sale conferred on it by Section 24 of the Conveyancing and Law of Property Act, Chapter 61 of Singapore (as varied or extended by this Debenture), and the security constituted by or pursuant to this Debenture shall become immediately exercisable and the statutory power of sale and all other powers conferred on mortgagees by Section 24 of the Conveyancing and Law of Property Act, Chapter 61 of Singapore shall arise and may be exercised by the Security Agent at any time after the occurrence of an Acceleration Event and the provisions of the Conveyancing and Law of Property Act, Chapter 61 of Singapore relating to and regulating the exercise of the said power of sale shall, so far as they relate to the security constituted by or pursuant to this Debenture, be varied and extended accordingly.

15.2 Restrictions

The Company may not exercise any of the powers reserved to a mortgagor by Section 23 of the Conveyancing and Law of Property Act, Chapter 61 of Singapore or

otherwise grant or agree to grant any lease or tenancy of the Charged Property or any part thereof for a term exceeding three years or surrender or accept or agree to accept a surrender of any lease or tenancy thereof without the prior consent in writing of the Security Agent except in the ordinary course of business but the foregoing shall not be construed as a limitation of the powers of any Receiver appointed under this Debenture and being an agent of the Company. Such statutory powers shall be exercisable by the Security Agent at any time after the occurrence of an Acceleration Event and, whether or not the Security Agent shall then be in possession of the premises proposed to be leased, so as to authorise the Security Agent to make a lease or agreement for lease at a premium and for any length of term and generally without any restriction on the kinds of leases and agreements for lease that the Security Agent may make and generally without the necessity for the Security Agent to comply with any restrictions imposed by the provisions of Section 23 of the Conveyancing and Law of Property Act, Chapter 61 of Singapore. The Security Agent may delegate such powers to any person and no such delegation shall preclude the subsequent exercise of such powers by the Security Agent itself or preclude the Security Agent from making a subsequent delegation thereof to some other person and any such delegation may be revoked at any time.

15.3 Consolidation

The restriction on the right of consolidating mortgage securities contained in Section 21 of the Conveyancing and Law of Property Act, Chapter 61 of Singapore shall not apply to this Debenture.

16. APPOINTMENT OF RECEIVER

16.1 Appointment and Removal

After the occurrence of an Acceleration Event, the Security Agent may by deed or otherwise (acting through an authorised officer of the Security Agent), without prior notice to the Company:

16.1.1 appoint one or more persons to be a Receiver of the whole or any part of the Charged Property;

16.1.2 appoint two or more Receivers of separate parts of the Charged Property;

16.1.3 remove (so far as it is lawfully able) any Receiver so appointed; or

16.1.4 appoint another person(s) as an additional or replacement Receiver(s).

Any Receiver referred to in this Clause 16 may enjoy the benefit or enforce the terms of this Clause in accordance with the provisions of the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore.

16.2 Capacity of Receivers

Each person appointed to be a Receiver pursuant to Clause 16.1 (Appointment and Removal) shall be:

16.2.1 entitled to act individually or together with any other person appointed or substituted as Receiver;

16.2.2 for all purposes shall be deemed to be the agent of the Company which shall be solely responsible for his acts, defaults and liabilities and for the payment of his remuneration and no Receiver shall at any time act as agent for the Security Agent; and

16.2.3 entitled to remuneration for his services at a rate to be fixed by the Security Agent from time to time (without being limited to the maximum rate specified by the Conveyancing and Law of Property Act, Chapter 61 of Singapore).

16.3 Statutory Powers of Appointment

The powers of appointment of a Receiver shall be in addition to all statutory and other powers of appointment of the Security Agent under the Conveyancing and Law of Property Act, Chapter 61 of Singapore (as extended by this Debenture) or otherwise and such powers shall remain exercisable from time to time by the Security Agent in respect of any part of the Charged Property.

17. POWERS OF RECEIVER

Every Receiver shall (subject to any restrictions in the instrument appointing him but notwithstanding any winding-up or dissolution of the Company) have and be entitled to exercise, in relation to the Charged Property (and any assets of the Company which, when got in, would be Charged Property) in respect of which he was appointed, and as varied and extended by the provisions of this Debenture (in the name of or on behalf of the Company or in his own name and, in each case, at the cost of the Company):

17.1.1 all the powers conferred by the Conveyancing and Law of Property Act, Chapter 61 of Singapore on mortgagors and on mortgagees in possession and on receivers appointed under that Act;

17.1.2 all the powers of a receiver appointed under the Companies Act, Chapter 50 of Singapore;

17.1.3 all the powers and rights of an absolute owner and power to do or omit to do anything which the Company itself could do or omit to do; and

17.1.4 the power to do all things (including bringing or defending proceedings in the name or on behalf of the Company) which seem to the Receiver to be incidental or conducive to (a) any of the functions, powers, authorities or discretions conferred on or vested in him or (b) the exercise of the Collateral Rights (including realisation of all or any part of the Charged Property) or (c) bringing to his hands any assets of the Company forming part of, or which when got in would be, Charged Property.

18. APPLICATION OF MONIES

18.1 Application of proceeds

All monies received or recovered by the Security Agent or any Receiver pursuant to this Debenture or the powers conferred by it shall (subject to the claims of any person having prior rights thereto and by way of variation of the provisions of the Conveyancing and Law of Property Act, Chapter 61 of Singapore) be applied (notwithstanding any purported appropriation by the Company) in accordance with Clause 28 (Application of proceeds) of the Facility Agreement.

18.2 Arrangements among Secured Parties

The Company acknowledges that the Secured Parties have made arrangements among themselves in relation to the distributions and applications of moneys received or recovered by the Security Agent or any Receiver or Delegate and agrees that such distributions and applications shall be binding on the Company (notwithstanding any purported application by the Company.

19. PROTECTION OF PURCHASERS

19.1 Consideration

The receipt of the Security Agent or any Receiver shall be conclusive discharge to a purchaser and, in making any sale or disposal of any of the Charged Property or making any acquisition, the Security Agent or any Receiver may do so for such consideration, in such manner and on such terms as it thinks fit.

19.2 Protection of Purchasers

No purchaser or other person dealing with the Security Agent or any Receiver shall be bound to inquire whether the right of the Security Agent or such Receiver to exercise any of its powers has arisen or become exercisable or be concerned with any propriety or regularity on the part of the Security Agent or such Receiver in such dealings.

20. POWER OF ATTORNEY

20.1 Appointment and Powers

The Company by way of security irrevocably appoints the Security Agent and any Receiver severally to be its attorney and in its name, on its behalf and as its act and deed to execute, deliver and perfect all documents and do all things which the attorney may consider to be required or desirable for:

20.1.1 carrying out any obligation imposed on the Company by this Debenture or any other agreement binding on the Company to which the Security Agent is party (including the execution and delivery of any deeds, charges, assignments or other security and any transfers of the Charged Property) which the Company has failed to carry out for a period of not less than 10 Business Days after being requested to do so by the Security Agent or such lesser period of time which the Security Agent considers necessary in order to ensure the validity or enforceability of this Deed or the value of the Charged Property; and

20.1.2 enabling the Security Agent and any Receiver to exercise, or delegate the exercise of, any of the rights, powers and authorities conferred on them by or pursuant to this Debenture or by law (including, after the occurrence of an Acceleration Event, the exercise of any right of a legal or beneficial owner of the Charged Property).

20.2 Exercise of the power of attorney

Until the occurrence of an Acceleration Event, the Security Agent agrees not to exercise the rights of power of attorney granted to it pursuant to Clause 20.1 (Appointment and powers).

20.3 Ratification

The Company hereby declares that such power of attorney has been given for valuable consideration and shall remain irrevocable for so long as any part of the Secured Obligations remains outstanding. The Company hereby ratifies and confirms and agrees to ratify and confirm all things done or purported to be done and all documents executed by any attorney in the exercise or purported exercise of all or any of his powers, authorities and discretions referred to in Clause 20.1 (Appointment and powers) above, in each case except for the gross negligence, wilful misconduct of the attorney or the attorney has acted in breach of any applicable law or the terms of the Finance Documents.

21. EFFECTIVENESS OF SECURITY

21.1 Continuing Security

21.1.1 The Security created by or pursuant to this Debenture shall remain in full force and effect as a continuing security for the Secured Obligations unless and until discharged by the Security Agent.

21.1.2 No part of the security from time to time intended to be constituted by the Debenture will be considered satisfied or discharged by any intermediate payment, discharge or satisfaction of the whole or any part of the Secured Obligations.

21.2 Cumulative Rights

The security created by or pursuant to this Debenture and the Collateral Rights shall be cumulative, in addition to and independent of every other security which the Security Agent or any Secured Party may at any time hold for the Secured Obligations or any other obligations or any rights, powers and remedies provided by law. No prior security held by the Security Agent (whether in its capacity as trustee or otherwise) or any of the other Secured Parties over the whole or any part of the Charged Property shall merge into the security constituted by this Debenture.

21.3 No Prejudice

The security created by or pursuant to this Debenture and the Collateral Rights shall not be prejudiced by any unenforceability or invalidity of any other agreement or document or by any time or indulgence granted to the Company or any other person, or the Security Agent (whether in its capacity as trustee or otherwise) or any of the other Secured Parties or by any variation of the terms of the trust upon which the

Security Agent holds the security or by any other thing which might otherwise prejudice that security or any Collateral Right.

21.4 Remedies and Waivers

No failure on the part of the Security Agent to exercise, or any delay on its part in exercising, any Collateral Right shall operate as a waiver of that Collateral Right, nor shall any single or partial exercise of any Collateral Right preclude any further or other exercise of that or any other Collateral Right.

21.5 No Liability

None of the Security Agent, its nominee(s) or any Receiver shall be liable by reason of (a) taking any action permitted by this Debenture or (b) any neglect or default in connection with the Charged Property or (c) taking possession of or realising all or any part of the Charged Property, except in the case of gross negligence, wilful default or the breach of the terms of this Debenture on its part. Any third party referred to in this Clause 21.5 may enjoy the benefit of or enforce the terms of this Clause in accordance with the provisions of the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore.

21.6 Partial Invalidity

If, at any time, any provision of this Debenture is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of this Debenture nor of such provision under the laws of any other jurisdiction shall in any way be affected or impaired thereby and, if any part of the security intended to be created by or pursuant to this Debenture is invalid, unenforceable or ineffective for any reason, that shall not affect or impair any other part of the security.

21.7 Waiver of defences

The obligations of the Company under this Debenture and the Collateral Rights will not be affected by an act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Debenture (without limitation and whether or not known to it or any Secured Party) including:

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

(b) the release of any 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 any Obligor or any other person;

(e) any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case however fundamental and of whatsoever nature, and whether or not more onerous) or replacement of a Finance Document or any other document or security or of the Secured Obligations;

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

(g) any insolvency or similar proceedings.

21.8 Immediate recourse

The Company 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 the Company under this Debenture. This waiver applies irrespective of any law or any provision of this Debenture to the contrary.

21.9 Deferral of Rights

Until such time as the Secured Obligations have been discharged in full, the Company will not exercise any rights which it may have by reason of performance by it of its obligations under this Debenture:

(a) to be indemnified by any Obligor;

(b) to claim any contribution from any guarantor of any Obligor’s obligations under this Debenture; and/or

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, this Debenture by any Finance Party.

22. RELEASE OF SECURITY

22.1 Release

Upon:

22.1.1 the Secured Obligations being irrevocably paid or discharged in full, and the Security Agent and the Secured Parties having no further actual or contingent obligations to make advances or provide other financial accommodation to the Company or any other person under the Finance Documents; or

22.1.2 pursuant to any disposals permitted under the Finance Documents,

the Security Agent shall, at the request and cost of the Company release all the security granted by this Deed, subject to Clause 22.2 (Avoidance of Payments) without recourse to, and without any representations or warranties by, the Security Agent or any of its nominee(s).

22.2 Avoidance of Payments

If any amount paid or credited to any Finance Party is capable of being avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws the liability of the Company under this Debenture and the security constituted by this Debenture shall continue and such amount shall not be considered to have been irrevocably paid.

23. SET-OFF

The Company authorises the Security Agent (but the Security Agent shall not be obliged to exercise such right), after the occurrence of an Acceleration Event which is continuing, to set off against the Secured Obligations any amount or other obligation (contingent or otherwise) owing by the Security Agent to the Company and apply any credit balance to which the Company is entitled on any account with the Security Agent in accordance with Clause 18 (Application of Monies) (notwithstanding any specified maturity of any deposit standing to the credit of any such account).

24. SUBSEQUENT SECURITY INTERESTS

If the Security Agent (acting in its capacity as trustee or otherwise) or any of the other Secured Parties at any time receives or is deemed to have received notice of any subsequent Security affecting all or any part of the Charged Property or any assignment or transfer of the Charged Property which is prohibited by the terms of this Debenture or the Facility Agreement, all payments thereafter by or on behalf of the Company to the Security Agent (whether in its capacity as trustee or otherwise) or any of the other Secured Parties shall be treated as having been credited to a new account of the Company and not as having been applied in reduction of the Secured Obligations as at the time when the Security Agent received such notice.

25. CURRENCY INDEMNITY

If any sum (a “Sum”) owing by the Company under this Debenture or any order or judgment given or made in relation to this Debenture has to be converted from the currency (the “First Currency”) in which such Sum is payable into another currency (the “Second Currency”) for the purpose of:

25.1.1 making or filing a claim or proof against the Company;

25.1.2 obtaining an order or judgment in any court or other tribunal;

25.1.3 enforcing any order or judgment given or made in relation to this Debenture; or

25.1.4 applying the Sum in satisfaction of any of the Secured Obligations,

the Company shall indemnify the Security Agent from and against any loss suffered or incurred as a result of any discrepancy between (a) the rate of exchange used for such purpose to convert such Sum from the First Currency into the Second Currency and (b) the rate or rates of exchange available to the Security Agent at the time of such receipt of such Sum.

26. ASSIGNMENT

To the extent permitted by the terms of the Facility Agreement, the Security Agent may assign and transfer all or any of its rights and obligations under this Debenture. Subject to any obligations of confidentiality imposed on the Security Agent pursuant to the terms of the Finance Documents, the Security Agent shall be entitled to disclose such information concerning the Company and this Debenture as the Security Agent considers appropriate to any actual or proposed direct or indirect successor or to any person to whom information may be required to be disclosed by any applicable law.

27. DISCLOSURE

Without prejudice to any Secured Party’s right to disclose information whether under common law or the Banking Act. Cap 19 of Singapore (“Banking Act”), the Security Agent shall be entitled to disclose such information concerning the Company or any other person and this Debenture as the Security Agent considers appropriate to any actual or proposed direct or indirect successor or to any person to whom information may be required to be disclosed by applicable law.

This Clause 27 is not, and shall not be deemed to constitute, an express or implied covenant by any Secured Party with any Obligor for a higher degree of confidentiality than that prescribed in Section 47 of the Banks Act and in the Third Schedule of the Banks Act.

28. NOTICES

Any communication to be made by one person to another under or in connection with this Deed shall, for so long as any sums under the First Ranking Facility Agreement be outstanding, be made in accordance with clause 29 (Notices) of the First Ranking Facility Agreement and thereafter in accordance with clause 29 (Notices) of the Second Ranking Facility Agreement.

29. INDEMNITY

29.1 Indemnity

The Company shall, notwithstanding any release or discharge of all or any part of the security, indemnify the Security Agent, its agents, attorneys and any Receiver against any action, proceeding, claims, losses, liabilities and costs which it may sustain as a consequence of any breach by the Company of the provisions of this Debenture, the exercise or purported exercise of any of the rights and powers conferred on them by this Debenture or otherwise relating to the Charged Property.

30. PAYMENTS FREE OF DEDUCTION

All payments to be made to the Security Agent under this Debenture shall be made free and clear of and without deduction for or on account of tax unless the Company is required to make such payment subject to the deduction or withholding of tax, in which case the sum payable by the Company in respect of which such deduction or withholding is required to be made shall be increased to the extent necessary to ensure that, after the making of such deduction or withholding, the person on account of whose liability to tax such deduction or withholding has been made receives and retains (free from any liability in respect of any such deduction or withholding) a net sum equal to the sum which it would have received and so retained had no such deduction or withholding been made or required to be made.

31. DISCRETION AND DELEGATION

31.1 Discretion

Any liberty or power which may be exercised or any determination which may be made under this Debenture by the Security Agent or any Receiver may, subject to the terms and conditions of the Finance Documents, be exercised or made in its absolute and unfettered discretion without any obligation to give reasons.

31.2 Delegation

Subject to the terms of the Finance Documents, each of the Security Agent and any Receiver shall have full power to delegate (either generally or specifically) the powers, authorities and discretions conferred on it by this Debenture (including the power of attorney) on such terms and conditions as it shall see fit which delegation shall not preclude either the subsequent exercise any subsequent delegation or any revocation of such power, authority or discretion by the Security Agent or the Receiver itself.

32. PERPETUITY PERIOD

The perpetuity period under the rule against perpetuities, if applicable to this Debenture, shall be the period of 100 years from the date of the Facility Agreement.

33. GOVERNING LAW

This Debenture is governed by Singapore law.

34. COUNTERPARTS

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

35. JURISDICTION

35.1 Singapore Courts

The courts of Singapore have exclusive jurisdiction to settle any dispute (a “Dispute”) arising out of, or connected with this Debenture (including a dispute regarding the existence, validity or termination of this Debenture or the consequences of its nullity).

35.2 Convenient Forum

The parties agree that the courts of Singapore are the most appropriate and convenient courts to settle Disputes between them and, accordingly, that they will not argue to the contrary.

35.3 Exclusive Jurisdiction

This Clause 35 (Jurisdiction) is for the benefit of the Security Agent only. As a result and notwithstanding Clause 35.1 (Singapore Courts), it does not prevent the Security Agent from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law the Security Agent may take concurrent proceedings in any number of jurisdictions.

THIS DEBENTURE has been signed on behalf of the Security Agent and executed as a deed by the Company and is delivered by it on the date specified above.

SCHEDULE 1
FORMS OF NOTICE OF ASSIGNMENT

Part A
Form of Notice of Assignment of Insurances

To: [Insurer]

Date: [ ]

Dear Sirs,

We hereby give you notice that we have assigned to [ ] (the “Security Agent”) pursuant to a debenture entered into by us in favour of the Security Agent dated [ ] all our right, title and interest in and to the proceeds of [insert details of relevant insurance policy] (the “Policy of Insurance”).

With effect from your receipt of this notice we instruct you to disclose to the Security Agent, without further approval from us, such information regarding the Policy of Insurance as the Security Agent may from time to time request and to send it copies of all notices issued by you under the Policy of Insurance.

With effect from your receipt of a notice from the Security Agent that an “Acceleration Event” has occurred under a facility agreement (“Facility Agreement”) dated [ ] between, inter alios, ourselves as borrower and the Security Agent as Security Agent, we instruct you to:

(a) make all payments and claims under or arising from the Policy of Insurance to the Security Agent or to its order as it may specify in writing from time to time; and

(b) note the interest of the Security Agent on the Policy of Insurance; and

With effect from your receipt of a notice from the Security Agent that an “Event of Default” has occurred under the Facility Agreement, all rights, interests and benefits whatsoever accruing to or for the benefit of ourselves arising from the Policy of Insurance (including all rights to compel performance) belong to and are exercisable by the Security Agent.

Please acknowledge receipt of this notice by signing the acknowledgement on the enclosed copy letter and returning the same to the Security Agent at [ ] marked for the attention of [ ].

Yours faithfully


for and on behalf of
[ ]

[On copy only]

To: [Security Agent]

We acknowledge receipt of a notice of assignment in the terms set out above and confirm that we have not received notice of any previous assignments or charges of or over any of the rights, title and interests and benefits referred to in such notice and that we will comply with the terms of that notice.

We further confirm that no amendment or termination of the Policy of Insurance shall be effective unless we have given the Security Agent thirty days written notice of such amendment or termination.

For and on behalf of
[Insurer]

By:



Dated:

SCHEDULE 2
FORM OF NOTICE OF ASSIGNMENT OF ACCOUNT

To: [Account Bank]

Date: [ ]

Dear Sirs,

We hereby give you notice that we have assigned and charged to [Insert Name of Security Agent] (the “Security Agent”) pursuant to a debenture entered into by us in favour of the Security Agent dated [·] (the “Debenture”) all of our right, title and interest in and to account number [·], account name [·] (including any renewal or redesignation of such account) and all monies standing to the credit of that account from time to time (the “Account”).

With effect from the date of your receipt of this notice:

(a) [any existing payment instructions affecting the Account are to be terminated and all payments and communications in respect of the Account should be made to the Security Agent or to its order (with a copy to the Company)].

(b) all rights, interests and benefits whatsoever accruing to or for the benefit of ourselves arising from the Account belong to the Trustee.

Please accept this notice by signing the enclosed acknowledgement and returning it to the Trustee at [ ] marked for the attention of [ ].

	Yours faithfully


	for and on behalf of
	[COMPANY]

[on copy only]

To: Security Agent

Date: [ ]

At the request of the Security Agent and [COMPANY] we acknowledge receipt of the notice of assignment and charge, on the terms attached, in respect of the Account (as described in those terms). We confirm that:

· the balance standing to the Account at today’s date is [·], no fees or periodic charges are payable in respect of the Account and there are no restrictions on (a) the payment of the credit balance on the Account [(except, in the case of a time deposit, the expiry of the relevant period)] or (b) the assignment of the Account to the Security Agent or any third party;

· we have not received notice of any previous assignments of, charges over or trusts in respect of, the Account and, we will not, without the Security Agent’s consent we will not, without the Security Agent’s consent (a) exercise any right of combination, consolidation or set-off which we may have in respect of the Account or (b) amend or vary any rights attaching to the Account; and

· we will act only in accordance with the instructions given by persons authorised by the Security Agent and we shall send all statements and other notices given by us relating to the Account to the Security Agent.

For and on behalf of [·]

By:

SCHEDULE 3
FORM OF NOTICE OF CHARGE OVER ACCOUNT

To: [Account Bank]

Date: [ ]

Dear Sirs,

We hereby give you notice that we have charged to [ ] (the “Security Agent”) pursuant to a debenture entered into by us in favour of the Security Agent dated [·](the “Debenture”) all of our right, title and interest in and to account number [ ], account name [ ] (including any renewal or redesignation of such account) and all monies standing to the credit of that account from time to time (the “Account”).

With effect from your receipt of a notice (the “Enforcement Notice”) from the Security Agent that an “Acceleration Event” (as defined in the Debenture) has occurred under a debenture dated [ ] between, inter alios, ourselves as borrower and the Security Agent as Security Agent]:

(a) any existing payment instructions affecting the Account are to be terminated and all payments and communications in respect of the Account should be made to the Security Agent or to its order (with a copy to us); and

(b) all rights, interests and benefits whatsoever accruing to or for the benefit of ourselves arising from the Account belong to the Security Agent.

Please accept this notice by signing the enclosed acknowledgement and returning it to the Security Agent at [ ] marked for the attention of [ ].

Yours faithfully


for and on behalf of
[ ]

[On copy only]

To: [Security Agent]

At the request of [ ], we acknowledge receipt of the notice of assignment, on the terms attached, in respect of the Account (as described in those terms). We confirm that:

(a) the balance standing to the Account at today’s date is [ ], no fees or periodic charges are payable in respect of the Account and there are no restrictions on the payment of the credit balance on the Account [(except, in the case of a time deposit, the expiry of the relevant period)];

(b) we have not received notice of any previous assignments of, charges over or trusts in respect of, the Account and following receipt of an Enforcement Notice, we will not, without the Security Agent’s consent (i) exercise any right of combination, consolidation or set off which we may have in respect of the Account or (ii) amend or vary any rights attaching to the Account; and

(c) following receipt of an Enforcement Notice, we will act only in accordance with the instructions given by persons authorised by the Security Agent and we shall send all statements and other notices given by us relating to the Account to the Security Agent.

For and on behalf of
[Account Bank]

By:



Dated:

DEBENTURE

The Company

EXECUTED as a DEED

SIGNED, SEALED AND		)
DELIVERED BY		)

/s/ ZHANG ZHANKUI		)
		)
As attorney(s) for and on behalf of		)
ORIENTAL PROSPECT PTE. LTD.		)
in the presence of:


/s/ WANG LIANG
Witness’s Signature

DEBENTURE

The Security Agent

SIGNED for and on behalf of
CHINA DEVELOPMENT BANK

By:	/s/ XU QIYING

Name:	Xu Qiying

Title:	Head, Large Enterprises Department

February 3, 2008

EX-99.8 9 a08-4773_1ex99d8.htm EX-99.8

Exhibit 99.8

ORIGINAL COPY

Guarantee Contract for the Loan Agreement (No.: 1100126372008511515)

GUARANTEE CONTRACT

GUARANTOR:		ALUMINUM CORPORATION OF CHINA
	AGENT:	CHINA DEVELOPMENT BANK

Guarantor:		Aluminum Corporation of China (“Guarantor”)

	Domicile:		62, Xizhimenbei Avenue, Beijing
	Legal Representative:		Xiao Yaqing
	Post Code:		100088
	Handling Person:		Zhang Zhankui
	Telephone:		82298288
	Fax:		82298209

	Agent:		China Development Bank (“Agent”)

	Domicile:		29, Fuchengmeiwai Avenue, Xicheng District, Beijing
	Legal Representative:		Chen Yuan
	Post Code:		100037
	Handling Entity:		Corporate Department, China Development Bank
	Domicile of Handling Entity:		158, Fuxingmennei Avenue, Xicheng District, Beijing
	Head of the Handling Entity:		Xu Qiying
	Post code:		100031
	Handling Person:		Deng Xiaoliang
	Telephone:		66492154
	Fax:		66413956

In order to ensure that the Borrower, Oriental Prospect Pte. Ltd., perform its repayment obligations under the Master Contract (as defined below), the Guarantor is willing to provide a guarantee to the Agent for and on behalf of each Guarantee. The Agent and the Guarantor hereby enter into this contract (this “Contract”) upon mutual consultations and agreement:

ARTICLE I
DEFINITIONS

Unless otherwise provided herein, the relevant terms as used herein shall have the same meanings as set forth in the Master Contract.

1.1 “Agent” means China Development Bank.

1.2 “Guarantor” means Aluminum Corporation of China.

1.3 “Borrower” means Oriental Prospect Pte. Ltd.

1.4 “Master Contract” means the Loan Contract entered into by Oriental Prospect Pte. Ltd. as the borrower, China Development Bank as the agent and other financial institute(s) as the lender(s) set forth therein with an amount of US$7,000,000,000 and capitalized interest, as may be amended, supplemented or modified from time to time.

1.5 “Lender” means any lender as set forth in the Master Contract from time to time.

1.6 “Guarantees” means the Lender(s) and agent set forth in the Master Contract.

1.7 “SAFE” means the State Administration of Foreign Exchange of the PRC or its branches.

ARTICLE II
SCOPE OF GUARANTEE

Pursuant to the Master Contract, the Borrower has borrowed from the Lenders under the Master Contract Seven Billion US Dollars (US$ 7,000,000,000) and accumulated capitalized interest with a loan term of three (3) years commencing from the first utilization date under the Master Contract and ending on the date on which the three-year term expires.

The Guarantor is willing to provide, for and on behalf of each Guarantee, a guarantee to the Agent with respect to the Borrower’s obligation to repay all borrowed principal, interest, penalty interest, compensation, liquidated damages, damages and fees for realization of creditors’ rights under the Master Contract.

With the repayment of the principal borrowed under the Master Contract, the amount of the principal guaranteed hereunder shall be reduced accordingly.

ARTICLE III
FORM OF GUARANTEE

The Guarantor shall provide a joint liability guarantee to the Agent within the scope of guarantee hereunder for and on behalf of each Guarantee.

Whether the Borrower provides property security for the Master Contract or not, if the Borrower fails to satisfy the debt within the scope of guarantee hereunder pursuant to the Master Contract, the Agent shall have the right to directly require the Guarantor to bear the liability with respect to the guarantee. The Guarantor shall satisfy such debt within [60] days of the receipt of the Agent’s written notice requesting the performance of the liability with respect to the guarantee.

ARTICLE IV
TERM OF GUARANTEE

The guarantee hereunder shall have a term of two (2) years commencing on the date on which the debt service period expires under the Master Contract.

ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR

5.1 The Guarantor is a duly established legal person, possesses a valid business license, and owns its assets and operates its business in accordance with law;

5.2 There are no material litigations or arbitrations against the Guarantor that would affect its financial condition or normal business operation;

5.3 The consolidated and non-consolidated financial and accounting reports for the most recent year furnished by the Guarantor to the Agent are true, accurate and complete. As of the most recent reporting date, there are no indications that the financial condition of the Guarantor has deteriorated;

5.4 All internal authorization procedures necessary for the execution of this Contract by the Guarantor have been completed, and are legal and valid;

5.5 All documents and materials provided by the Guarantor to the Agent are true, accurate and complete;

5.6 The execution, delivery and performance of this Contract will not (a) violate any law of the jurisdiction applicable to the Guarantor, or conflict with any provision of the Articles of Association or other internal document or agreement of the Guarantor. All the consents and approvals from the government and other authorities necessary for such execution, delivery and performance have been obtained, and are fully effective;

5.7 The execution, delivery and performance of this Contract will not result in any material breach by the Guarantor of any provision of any agreement by which itself or its assets are bound;

5.8 The obligations of the Guarantor hereunder are legal and valid obligations binding upon it.

5.9 The Guarantor has not taken any action or other measures, and there are no proceedings against (or to its knowledge, threatened against) it, for the winding up, dissolution, receivership or bankruptcy restructuring of the Guarantor or for the appointment of a receiver, manager or custodian or the like personnel of the Guarantor or any or all of its assets or revenues.

The representations and warranties set forth above are valid during the term of this Contract.

ARTICLE VI
OBLIGATIONS OF THE GUARANTOR

6.1 The Guarantor shall, before May 10^th of each year, furnish with the Agent with the consolidated and non-consolidated financial statements for the preceding fiscal year as audited by an accounting firm;

6.2 The Guarantor shall promptly submit other materials as requested by the Agent;

6.3 Upon occurrence of any event that has affected or is likely to affect the Guarantor’s performance of obligations hereunder, the Guarantor shall promptly notify the Agent;

6.4 The Guarantor shall obtain the prior written consent of the Agent with respect to any transfer of its operating assets accounting for more than 50% its total assets;

6.5 In the event of any merger, spin-off, joint stock transformation, structural transformation or other material change in ownership structure, the Guarantor shall provide the Agent with a 15 days prior notice of the relevant plan of change and must obtain the written consent of the Agent. No such plan of change shall prejudice the legitimate rights and interests of the Agent under this Contract;

6.6 If the Guarantor provides any guarantee to a third party with the cumulative guarantee amount exceeding [70]% of the net assets stated in the financial statements of the most recent fiscal year of the Guarantor, the Guarantor must obtain the written consent of the Agent.

6.7 In the event of any change in its company name, domicile, legal representative, registered capital, business scope, company type, or any amendment to its Articles of Association, or in the event of any material financial or personnel change, the Guarantor shall provide a 10 days prior written notice to the Agent and shall file the relevant documents with the Agent for record.

6.8 The Guarantor shall not execute any document or do any thing that would have an adverse effect on the interests of the Agent.

6.9 The Guarantor shall at all times (i) take all corporate and other actions necessary for its performance of its obligations hereunder, and comply with the terms concerning all relevant consents required by the laws and regulations of the applicable jurisdiction; and (ii) take all necessary actions to obtain all relevant consents required by the laws and regulations of the applicable jurisdiction, and make the foregoing fully effective, including, but not limited to, register this Contract with the SAFE within fifteen (15) days after the date hereof pursuant to the laws and regulations of the People’s Republic of China (the “PRC”), and deliver to the Agent the external guarantee registration certificate evidencing that this Contract has been registered with the SAFE.

ARTICLE VII
LIABILITY FOR BREACH

7.1 If the Guarantor breaches any provisions hereof, or if any of the Guarantor’s representations or warranties set forth in Article 5 hereof is found inaccurate or misleading, which has caused any economic loss to the Agent or any other Guarantee, the Guarantor shall make indemnification accordingly.

ARTICLE VIII
MODIFICATION AND TRANSFER OF THE CONTRACT

8.1 Unless otherwise provided herein, any amendment to this Contract shall be mutually agreed upon by the Guarantor and the Agent through consultations and shall be concluded in a written instrument;

8.2 In the event that the Agent or any other Guarantee transfers any creditors’ right under the Master Contract in accordance with law or pursuant to the Master Contract, the Guarantor shall continue to bear the joint guarantee liability within the scope of the guarantee hereunder.

8.3 In the event that the Agent or any other Guarantee permits the Borrower to transfer any debt under the Master Contract, it shall obtain the written consent of the Guarantor. The Guarantor shall no longer bear the joint guarantee liability for any debt that has been transferred without its consent.

8.4 During the term of the guarantee, in the event of any change in the amount or interest of the loan under the Master Contract made the Agent or other Guarantees and the Borrow without the consent of the Guarantor: (i) if the debt of the Borrower has been reduced, the Guarantor shall still bear the guarantee liability with respect to the amended contract; and (ii) if the debt of the Borrow has been increased, the Guarantor shall not be liable for the increased part thereof.

In the event of any change in the performance term for the repayment plan provided in the Master Contract made by the Agent or other Guarantees and the Borrower without the written consent of the Guarantor, the term of guarantee shall still be the term as provided in the original contract or as required under the law.

In the event of any amendment to the content of the Master Contract made by the Agent or other Guarantees and the Borrower through consultations without actual performance, the Guarantor shall still bear the guarantee liability.

8.5 In the event that the Agent or other Guarantees and the Borrower make any amendment to the drawdown plan set forth in the Master Contract through consultations, the Guarantor shall still bear the guarantee liability.

ARTICLE IX
FOREIGN EXCHANGE ADMINISTRATION

9.1 Registration with SAFE

Following the execution of this Contract, the Guarantor shall carry out the external guarantee registration with respect to the guarantee hereunder with the SAFE and any other relevant authority pursuant to the Guarantee Law of the People’s Republic of China and the Detailed Rules for the Administration Measures of Overseas Guarantees Provided by Domestic Entities or other relevant laws or regulations.

The external guarantee registration certificate issued by the SAFE is one of required legal documents in connection with this Contract.

9.2 Verification and Approval of Disbursement.

Prior to any disbursement required to be made by the Guarantor under this Contract, it shall submit the details relating to such disbursement to the SAFE for verification and approval pursuant to the then effective relevant laws and regulations of the PRC.

Without limiting the generality of the foregoing, the Guarantor shall comply with the payment disbursement provisions of this Contract pursuant to the laws or regulations.

ARTICLE X
TAXES

All payments made by the Guarantor pursuant to this Contract shall not include any deduction of taxes, unless the Guarantor has been required to make such payment after making the deduction or withholding of taxes. In such event, the payment required to be made by the Guarantor under this Contract shall be increased to the effect that the net amount actually received and retained by the payee of such payment after such deduction or withholding of taxes (no longer be liable for any such deduction or withholding of taxes) shall be equal to the payment that it would have received or retained but for such deduction or withholding of taxes. No set-off or counterclaim shall be included in any payment made by the Guarantor under this Contract, nor shall any deduction be made with respect to the any set-off or counterclaim.

ARTICLE XI
EXCHANGE

All amounts payable hereunder shall be made in US Dollar. In the event that any amount in any currency other than US Dollar has been received as a result of any judgment, order, liquidation of the Guarantor or any other reason, the Guarantor’s liability hereunder shall not be released until the Agent can use such other currency to purchase US Dollars in accordance with the normal banking exchange procedures after the receipt of such amount. If, after the deduction of any exchange costs, such amount is less than the relevant amount payable hereunder, the Guarantor shall indemnify the Agent, and such indemnification shall be independent from, and in addition to, the other liabilities of the Guarantor hereunder.

ARTICLE XII
GOVERNING LAW AND RESOLUTION OF DISPUTES

This Contract shall be governed by, and construed in accordance with, the laws of the PRC.

Any dispute between the Guarantor and the Agent arising out of the performance of this Contract shall be resolved by the parties through consultations. Failing such resolution, the dispute shall be resolved through litigation before the People’s Court of the domicile of the Agent.

ARTICLE XIII
MISCELLANEOUS

13.1 Any matters not addressed herein shall be dealt with by the Guarantor and the Agent through consultations or pursuant to the relevant laws and regulations of the PRC.

13.2 This Contract is made in [four (4)] originals, with the Guarantor, Agent and Borrower each holding one copy thereof and one copy to be submitted to the SAFE; and in [eight (8)] duplicates.

ARTICLE XIV
EFFECTIVENESS OF THE CONTRACT

This Contract shall become effective on the date on which it has been signed and sealed by the Guarantor and the Agent and registered with the SAFE.

Guarantor:	(Company Seal or Special Seal for Contracts)


Legal Representative:		/s/ ZHANG ZHANKUI


(or Authorized Representative)

			Date:

Opening Bank & Account No. of Guarantor:


Agent	(Special Seal for Contracts)

Legal Representative			/s/ XU QIYING

(or Authorized Representative)

				Date:

Place of Execution: Xi Cheng District, Beijing

EX-99.9 10 a08-4773_1ex99d9.htm EX-99.9

Exhibit 99.9

	LIMITED LIABILITY PARTNERSHIP
	EXECUTION COPY

SPONSOR UNDERTAKING

dated February 2008

FROM

ALUMINUM CORPORATION OF CHINA

in favour of

CHINA DEVELOPMENT BANK

acting as Agent

THIS SPONSOR UNDERTAKING is dated 2008 and made between:

(1) ALUMINUM CORPORATION OF CHINA (the “Sponsor”); and

(2) CHINA DEVELOPMENT BANK as agent (the “Agent”) of the Finance Parties.

IT IS AGREED as follows:

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this Undertaking:

“Facility Agreement” means the Agreement dated on or about the date of this Undertaking and made between Orient Prospect Pte Ltd. as borrower, China Development Bank as Agent and the Finance Parties specified therein.

Capitalised terms not otherwise defined herein shall have the meanings ascribed to such terms in the Facility Agreement.

1.2 Construction; Third Party Rights

The terms of Clauses 1.2 and 1.4 of the Facility Agreement shall apply mutatis mutandis to this Undertaking.

2. UNDERTAKING

2.1 Ownership of Orient Prospect Pte Ltd.

Sponsor undertakes that at all times Orient Prospect Pte Ltd. shall own 100 per cent. of the issued share capital of Shining Prospect Pte Ltd.

2.2 Owners of Orient Prospect Pte Ltd.

Sponsor shall ensure that all Persons directly or indirectly owning the share capital of Orient Prospect Pte Ltd. undertake to the Agent on behalf of the Finance Parties that Orient Prospect Pte Ltd. shall at all times own 100 per cent. of the issued share capital of Shining Prospect Pte Ltd., pursuant to an undertaking agreement in form and substance satisfactory to the Agent.

3. GOVERNING LAW

This Undertaking is governed by English law.

4. ENFORCEMENT

4.1 Jurisdiction

(a) The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Undertaking (including a dispute regarding the existence, validity or termination of this Undertaking or the consequences of its nullity) (a “Dispute”).

(b) The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.

(c) This Clause 5.1 (Jurisdiction) is for the benefit of the Finance Parties only. As a result, and notwithstanding paragraph (a) of Clause 5.1, any Finance Party may take proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.

4.2 Waiver of Immunity

The Sponsor waives generally all immunity it or its assets or revenues may otherwise have in any jurisdiction, including immunity in respect of:

(a) the giving of any relief by way of injunction or order for specific performance or for the recovery of assets or revenues; and

(b) the issue of any process against its assets or revenues for the enforcement of a judgment or, in an action in rem, for the arrest, detention or sale of any of its assets and revenues.

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

SIGNATURES

THE SPONSOR

ALUMINUM CORPORATION OF CHINA

By:/s/ ZHANG ZHANKUI

Address:

Fax:

THE AGENT

CHINA DEVELOPMENT BANK

By:/s/ XU QIYING

Address:

Fax:

February 3, 2008

EX-99.10 11 a08-4773_1ex99d10.htm EX-99.10

Exhibit 99.10

CLIFFORD CHANCE LLP

EXECUTION VERSION

DATED February 2008

CHINA DEVELOPMENT BANK

AS FIRST AND SECOND RANKING AGENTS

CHINA DEVELOPMENT BANK

AS SECURITY AGENT

THE LENDERS

AND

ORIENTAL PROSPECT PTE. LTD.

and

SHINING PROSPECT PTE. LTD.

AS ORIGINAL OBLIGORS

INTERCREDITOR AGREEMENT

CONTENTS

Clause			Page

1.	Definitions and Interpretation		1
2.	Ranking and Priority		7
3.	First Ranking Lenders: Rights and Obligations		7
4.	Second Ranking Lenders: Rights and Obligations		8
5.	Hedge Providers: Rights and Obligations		8
6.	PROCEEDS OF DISPOSALS AND CLAIMS BEFORE ENFORCEMENT		9
7.	Entitlement to Enforce		10
8.	Effect of Insolvency Event		11
9.	Turnover of Receipts		12
10.	Sharing		13
11.	Enforcement of Security		14
12.	Disposals by Security Agent		14
13.	Application of Proceeds		15
14.	The Security Agent		17
15.	Change of Security Agent and Delegation		23
16.	Change of Party		24
17.	Fees and Expenses		26
18.	Indemnities		26
19.	Information and Conditions Precedent		27
20.	Notices		27
21.	Preservation		29
22.	Consents, Amendments and Override		30
23.	Counterparts		31
24.	Governing Law		31
25.	Enforcement		31

SCHEDULE 1		FORM OF OBLIGOR ACCESSION DEED	33

SCHEDULE 2		FORM OF LENDER ACCESSION UNDERTAKING	35

THIS AGREEMENT is dated February 2008 and made between:

(1) CHINA DEVELOPMENT BANK as agent for the First Ranking Lenders (the “First Ranking Agent”);

(2) THE FINANCIAL INSTITUTIONS named on the signing pages as First Ranking Lenders (the “First Ranking Lenders”);

(3) CHINA DEVELOPMENT BANK as agent for the Second Ranking Lenders (the “Second Ranking Agent”);

(4) THE FINANCIAL INSTITUTIONS named on the signing pages as Second Ranking Lenders (the “Second Ranking Lenders”);

(5) THE COMPANIES named on the signing pages as obligors (the “Original Obligors”); and

(6) CHINA DEVELOPMENT BANK as security agent for the Secured Parties (the “ Security Agent”).

IT IS AGREED as follows:

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this Agreement:

“Agent” means each of the First Ranking Agent and the Second Ranking Agent.

“Borrower” means any Obligor identified on the signing pages as a Borrower and, if more than one Obligor is identified as a Borrower, shall mean (unless the context requires otherwise) each of those Obligors.

“Charged Property” means all of the assets of the Obligors which from time to time are, or are expressed to be, the subject of the Transaction Security.

“Default” means an Event of Default or any event or circumstance which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.

“Delegate” means any delegate, agent, attorney or co-trustee appointed by the Security Agent.

“Enforcement Action” means:

(a) the acceleration of any Liabilities or any declaration that any Liabilities are prematurely due and payable (other than as a result of it becoming unlawful for a Lender to perform its obligations under, or of any mandatory prepayment arising under, the Finance Documents) or payable on demand or the premature termination or close out of any Hedging Liabilities;

(b) the taking of any steps to enforce or require the enforcement of any of the Transaction Security (including the crystallisation of any floating charge forming part of the Transaction Security);

(c) the making of any demand against any Obligor in relation to any guarantee, indemnity or other assurance against loss in respect of any Liabilities or exercising any right to require any Obligor to acquire any Liability (including exercising any put or call option against any Obligor for the redemption or purchase of any Liability);

(d) the exercise of any right of set-off against any Obligor in respect of any Liabilities;

(e) the suing for, commencing or joining of any legal or arbitration proceedings against any Obligor to recover or in respect of any Liabilities;

(f) the entering into of any composition, assignment or arrangement with any Obligor; or

(g) the petitioning, applying or voting for, or the taking of any steps (including the appointment of any liquidator, receiver, administrator or similar officer) in relation to, the winding up, dissolution, administration or reorganisation of any Obligor or any suspension of payments or moratorium of any indebtedness of any Obligor, or any analogous procedure or step in any jurisdiction.

“Event of Default” means any event or circumstance specified as such in any Facility Agreement.

“Facility Agreement” means each of the First Ranking Facility Agreement or Second Ranking Facility Agreement, as the case may be.

“Finance Document” means each of this Agreement, the First Ranking Finance Documents, the Second Ranking Finance Documents, the Security Documents, the Hedging Documents and any other document designated as such by the Security Agent and the Borrower.

“First Ranking Facility Agreement” means the Senior Secured Facility Agreement dated on or about the date hereof of this deed between (i) Shining Prospect, as borrower, (ii) China Development Bank as arranger, (iii) China Development Bank as agent and security agent and (iv) the financial institutions named therein as the Lenders.

“First Ranking Finance Documents” means the Finance Documents as defined in the First Ranking Facility Agreement.

“First Ranking Lender” means a Lender under the First Ranking Facility Agreement.

“First Ranking Liabilities” means the Liabilities owed by the Obligors to the First Ranking Lenders under the First Ranking Finance Documents and the Hedging Liabilities.

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

“Hedging Documents” means any document evidencing the hedge facilities approved under Clause 5 (Hedge Providers: rights and obligations).

“Hedging Liabilities” means the Liabilities owed by Shining Prospect to the Hedge Providers under the Hedging Documents.

“Hedge Providers” means any financial institution which becomes a Party in accordance with the terms of Clause 5 (Hedge Providers: rights and obligations).

“Insolvency Event” means, in relation to any Obligor:

(a) any resolution is passed or order made for the winding up, dissolution, administration or reorganisation of that Obligor, a moratorium is declared in relation to any indebtedness of that Obligor or an administrator is appointed to that Obligor;

(b) any composition, assignment or arrangement is made with any of its creditors;

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

(d) any analogous procedure or step is taken in any jurisdiction.

“Lender Accession Undertaking” means an undertaking in substantially the form set out in Schedule 2 (Form of Lender Accession Undertaking).

“Lenders” means the First Ranking Lenders, the Second Ranking Lenders and the Hedge Providers.

“Liabilities” means all present and future liabilities and obligations at any time of any Obligor to any Lender under the Finance Documents, both actual and contingent and whether incurred solely or jointly or in any other capacity together with any of the following matters relating to or arising in respect of those liabilities and obligations:

(a) any refinancing, novation, deferral or extension;

(b) any claim for damages or restitution; and

and any amounts which would be included in any of the above but for any discharge, non-provability or unenforceability of those amounts in any insolvency or other proceedings.

“Majority First Ranking Lenders” means the Majority Lenders as defined in the First Ranking Facility Agreement.

“Majority Lenders” means in respect of the First Ranking Lenders and the Second Ranking Lenders (for the purposes of this definition the “Relevant Lenders”):

(a) if there are no Liabilities then due to the Relevant Lenders, a Relevant Lender or Relevant Lenders whose Commitments (as defined in the Facility Agreement to which it is a party) aggregate more than 66 2/3% of the aggregate of the Total Commitments (as defined in the Facility Agreement to which it is a party) of all of the Relevant Lenders at that time (or, if the Total Commitments of all those Relevant Lenders have been reduced to zero, aggregated more than 66 2/3% of Total Commitments immediately prior to the reduction); or

(b) at any other time, a Relevant Lender or Relevant Lenders whose Liabilities then outstanding aggregate more than 66 2/3% of all the Liabilities then due to the Relevant Lenders.

“Majority Second Ranking Lenders” means the Majority Lenders as defined in the Second Ranking Facility Agreement.

“Obligor Accession Deed” means a deed in substantially the form set out in Schedule 1 (Form of Obligor Accession Deed).

“Obligors” means Orient Prospect and Shining Prospect and any person which becomes a Party to this Agreement as an Obligor in accordance with Clause 16 (Change of Party).

“Oriental Prospect” means Oriental Prospect Pte. Ltd. (Company Registration No. 200801581H).

“Party” means a party to this Agreement.

“Receiver” means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Property.

“Relevant Liabilities” means:

(a) in the case of a Lender, the Liabilities owed to Lenders ranking (in accordance with the terms of this Agreement) pari passu with or in priority to that Lender together with all present and future liabilities and obligations, actual and contingent, of the Obligors to the Agent of those Lenders and the Security Agent; and

(b) in the case of an Obligor, the Liabilities owed to the Lenders together with all present and future liabilities and obligations, actual and contingent, of the Obligors to the Agents and the Security Agent.

Second Ranking Facility Agreement” means the parent loan agreement dated on or about the date hereof of this deed between (i) the Oriental Prospect, as borrower, (ii) China Development Bank as arranger, (iii) China Development Bank as agent and security agent and (iv) the financial institutions named therein as the Lenders.

“Second Ranking Finance Documents” means the Finance Documents as defined in the Second Ranking Facility Agreement.

“Second Ranking Lender” means a Lender under the Second Ranking Facility Agreement.

“Second Ranking Liabilities” means the Liabilities owed by the Obligors to the Second Ranking Lenders under the Second Ranking Finance Documents.

“Secured Obligations” means all the Liabilities and all other present and future obligations at any time due, owing or incurred by any Obligor to any Secured Party under the Finance Documents, both actual and contingent and whether incurred solely or jointly and as principal or surety or in any other capacity.

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

“Security Documents” means:

(a) the Debenture dated executed or to be executed by Shining Prospect in favour of the Security Agent;

(b) the Charge over Shares in Shining Prospect executed by Oriental Prospect in favour of the Security Agent;

(c) the Security over Shares Agreement in respect of Rio Tinto PLC Shares executed by Shining Prospect in favour of the Security Agent;

(d) Charge over the DSRA Account executed by Shining Prospect in favour of the Security Agent;

(e) any other document entered into from time to time by any of the Obligors creating any guarantee, indemnity, Security or other assurance against financial loss in favour of the Security Agent as trustee for the Secured Parties as security for any of the Secured Obligations; and

(f) any Security granted under any covenant for further assurance in any of those documents.

“Shining Prospect” means Shining Prospect Pte. Ltd. (Company Registration No. 200801638R).

“Transaction Security” means the Security created or expressed to be created under or pursuant to any of the Security Documents.

“Trust Property” means:

(a) the Transaction Security and all proceeds of the Transaction Security;

(b) all obligations expressed to be undertaken by an Obligor to pay amounts in respect of the Liabilities to the Security Agent as trustee for the Secured Parties and secured by the Transaction Security together with all representations and warranties expressed to be given by an Obligor in favour of the Security Agent as trustee for the Secured Parties;

(d) any guarantee, indemnity or other assurance against loss offered to the Security Agent as trustee for the other Secured Parties (or any of them) under Clauses 3.1 (Security), 4.1 (Security); and

(e) any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Security Agent is required by the terms of the Finance Documents to hold as trustee on trust for the Secured Parties.

“VAT” means value added tax as provided for in the Value Added Tax Act 1994 and any other tax of a similar nature.

1.2 Construction

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

(i) any “Agent”, the “Security Agent”, any “Lender”, any “Hedge Provider”, any “Obligor” or any “Party” shall be construed so as to include its successors in title, permitted assignees and permitted transferees and, in the case of the Security Agent, any person for the time being appointed as Security Agent or Security Agents in accordance with this Agreement;

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

(iii) a “Finance Document” or any other agreement or instrument is a reference to that Finance Document, or other agreement or instrument, amended, novated, supplemented, extended, replaced or restated (in each case however fundamentally) as permitted by this Agreement;

(iv) “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;

(v) 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) of two or more of the foregoing;

(vi) 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; and

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

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

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

1.3 Third party rights

(a) Unless expressly provided to the contrary in this Agreement, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.

(b) Notwithstanding any term of this Agreement, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.

2. RANKING AND PRIORITY

Each of the Parties agrees that the Transaction Security granted by, the Obligors to the Lenders rank in the following order:

(a) first, the Transaction Security granted in respect of the First Ranking Liabilities;

(b) second, the Transaction Security granted in respect of the Second Ranking Liabilities.

3. FIRST RANKING LENDERS: RIGHTS AND OBLIGATIONS

3.1 Security

The First Ranking Lenders may take, accept or receive the benefit of any Security, guarantee, indemnity or other assurance against loss in respect of the First Ranking Liabilities in addition to the Transaction Security if and to the extent legally possible, at the same time, it is also offered to the Security Agent on behalf of the Second Ranking Lenders and the Hedge Providers in respect of, and ranking in the same order of priority as that set out in Clause 2 (Ranking and Priority).

3.2 Amendments

The First Ranking Lenders may amend the First Ranking Finance Documents at any time unless that amendment is, in relation to the provisions of the First Ranking Finance Documents as at the date of this Agreement a change:

(a) of the principal amount of the facility available under the First Ranking Facility Agreement such that the aggregate principal amount exceeds the original committed amount by greater than 10 per. cent;

(b) in the amount, currency or scheduled dates of repayment or prepayment (other than any change of the dates of repayment which defers any scheduled dates of repayment or prepayment by a period of not more than 180 days;

(c) in the basis on which interest, fees or commission accrue, are calculated or are payable (other than an increase in the margin of no more than 1% per annum or fees associated with an increase in principal amount permitted under paragraph (a) above); or

(d) the effect of which is to make any Obligor liable to make additional or increased payments,

in which case the prior consent of the Majority Second Ranking Lenders is required.

4. SECOND RANKING LENDERS: RIGHTS AND OBLIGATIONS

4.1 Security

The Second Ranking Lenders may take, accept or receive the benefit of any Security, guarantee, indemnity or other assurance against loss in respect of the Second Ranking Liabilities in addition to the Transaction Security from Shining Prospect if, at the same time, it is also offered to the Security Agent on behalf of the First Ranking Lenders and the Hedge Providers in respect of, and ranking in the same order of priority as that set out in Clause 2 (Ranking and Priority). The Second Ranking Lenders may take, accept or receive the benefit of any Security, guarantee, indemnity or other assurance against loss in respect of the Second Ranking Liabilities from any person other than Shining Prospect without restriction.

4.2 Amendments

The Second Ranking Lenders may amend the Second Ranking Finance Documents in accordance with their terms at any time.

5. HEDGE PROVIDERS: RIGHTS AND OBLIGATIONS

5.1 Identity of Hedge Providers

No person providing hedging facilities to any Obligor under the First Ranking Facility Agreement shall be entitled to share in any of the Transaction Security in respect of any of the liabilities arising in relation to those hedging facilities unless they are a party to this Agreement as a Hedge Provider. No person may become a Hedge Provider nor shall any liabilities arising in respect of its hedging facilities be treated as Hedging Liabilities unless:

(a) such person is a Lender or an affiliate of a Lender or the First Ranking Agent has approved the identity of that person (except in the case of a person originally Party to this Agreement as a Hedge Provider) and that person has executed and delivered to the Security Agent a Lender Accession Undertaking acceding to this Agreement as a Hedge Provider in accordance with Clause 16 (Change of Party); and

(b) the First Ranking Agent has received copies of, and has approved, the documents proposed to be Hedging Documents.

5.2 Security

The Hedge Providers may not take, accept or receive the benefit of any Security, guarantee, indemnity or other assurance against loss in respect of the Hedging Liabilities from Shining Prospect other than the Transaction Security unless the prior consent of the Majority First Ranking Lenders is obtained.

5.3 Amendments

The Hedge Providers may amend or novate the Hedging Documents in a manner not inconsistent with this Agreement at any time if either the prior consent of the Majority First Ranking Lenders is obtained or if the amendment is an administrative or procedural change only.

5.4 Terms of Hedging Documents for Interest Rate

The Borrower and Hedge Providers agree that any Hedging Document for interest rate hedging will provide for (a) “full two way payments” or (b) payments under the “Second Method” in the event of a termination of the hedging transaction entered into under that Hedging Document (whether as a result of a termination event or an event of default, as defined in that Hedging Document), or (c) any other method the effect of which is that the defaulting party or affected party under (and as defined in) that Hedging Document will be entitled to receive payment under the relevant termination provisions if the net replacement value of all terminated transactions entered into under that Hedging Document is in its favour.

5.5 Termination of Hedging Transactions

The Borrower may only terminate or close out and hedging transaction in whole or part with the consent of the Security Agent. If, on termination of any hedging transaction under the Hedging Documents occurring after the commencement of any Enforcement Action, a settlement amount or other amount falls due from a Hedge Provider to the Borrower then that amount shall be paid by that Hedge Provider to the Security Agent, treated as the proceeds of enforcement of the Transaction Security and applied in accordance with the terms of this Agreement.

6. PROCEEDS OF DISPOSALS AND CLAIMS BEFORE ENFORCEMENT

6.1 Proceeds of disposals and claims before enforcement

The proceeds of any sale, lease, transfer or other disposal of any assets or of any claim which are (a) received before the commencement of any Enforcement Action and (b) the subject of the Transaction Security, shall (to the extent required by the Facility

Agreements) be applied in or towards prepayment of the Liabilities of the Lenders in accordance with the order set out in Clause 2 (Ranking and Priority).

7. ENTITLEMENT TO ENFORCE

7.1 General Restriction

Except as permitted by this Clause 7 and Clause 8 (Effect of Insolvency Event), no Lender or Agent shall take any Enforcement Action at any time.

7.2 First Ranking Lenders: Permitted Enforcement

The First Ranking Lenders, acting through the First Ranking Agent, may take Enforcement Action at any time if entitled to do so under the terms of the Finance Documents to which they are a party.

7.3 Second Ranking Lenders: permitted enforcement

The Second Ranking Lenders may only take Enforcement Action against Shining Prospect if:

(a) the prior consent of the Majority First Ranking Lenders is obtained;

(b) the Majority First Ranking Lenders have accelerated their Liabilities against Shining Prospect or have declared them prematurely due and payable (other than as a result of it becoming unlawful for a Lender to perform its obligations under the Finance Documents), or payable on demand, in which case the Second Ranking Lenders may take the same Enforcement Action against Shining Prospect that the First Ranking Lenders have taken but may not take any other Enforcement Action against Shining Prospect without the prior consent of the First Ranking Lenders; or

(c) they are permitted to do so as a result of Clause 8 (Effect of Insolvency Event).

The Second Ranking Lenders may take Enforcement Action against Oriental Prospect without any restriction under this Agreement.

7.4 Hedge Providers: permitted enforcement

The Hedge Providers shall not take any Enforcement Action at any time except that they may terminate or close out any hedging transaction under the Hedging Documents prior to its stated maturity (and shall notify the Agents if they do so) if:

(a) the First Ranking Lenders have accelerated their Liabilities or declared them prematurely due and payable;

(b) the Borrower under the First Ranking Facility has defaulted on a payment due under the Hedging Documents (after allowing any applicable notice or grace periods);

(c) the consent of the Majority First Ranking Lenders is obtained;

(d) an Insolvency Event occurs in relation to such Obligor; or

(e) an Illegality or a Tax Event (as defined in 2000 ISDA Definition) occurs.

8. EFFECT OF INSOLVENCY EVENT

8.1 Acceleration and claim

After the occurrence of an Insolvency Event in relation to any Obligor, each Lender shall be entitled (if it has not already done so) to exercise any right it may have in respect of that Obligor to:

(a) accelerate any of its Liabilities or declare them prematurely due and payable or payable on demand or prematurely close out or terminate any Hedging Liabilities;

(b) make a demand under any guarantee, indemnity or other assurance against loss in respect of any Liabilities of that Obligor;

(c) exercise any right of set off or take or receive any payment in respect of any Liabilities; or

(d) claim and prove in the liquidation of that Obligor for the Liabilities owing to it.

8.2 Payment of distributions

After the occurrence of an Insolvency Event in relation to Shining Prospect, the person responsible for the distribution of the assets of Shining Prospect shall be directed to pay any distributions in respect of the Transaction Security to the Security Agent until the Liabilities have been paid in full.

8.3 Filing of claims

After the occurrence of an Insolvency Event relating to Shining Prospect each of the Lenders irrevocably authorises the Security Agent to:

(a) take any Enforcement Action (in accordance with the terms of this Agreement) against Shining Prospect or against Oriental Prospect in relation to the Charge over Shares in Shining Prospect only;

(b) demand, sue, prove and give receipt for any distributions in respect of the Transaction Security;

(c) collect and receive all distributions on, or on account of the Transaction Security; and

(d) file claims, take proceedings and do all other things the Security Agent considers reasonably necessary to recover the Transaction Security.

8.4 Lenders’ actions

The Lenders will do all things that the Security Agent reasonably requests in relation to the Transaction Security in order to give effect to this Clause 8 and, if the Security Agent is not entitled to take any of the actions contemplated by this Clause 8 or if the Security Agent requests any Lender to take that action, that Lender will undertake those actions itself in accordance with the reasonable instructions of the Security Agent

or will grant a power of attorney to the Security Agent (on such terms as the Security Agent may reasonably require) to enable the Security Agent to take such action.

9. TURNOVER OF RECEIPTS

9.1 Turnover by the Lenders

Subject to Clause 9.2 (Permitted assurance and receipts) if at any time prior to the discharge in full of the Liabilities of the First Ranking Lenders, any Lender receives or recovers from Shining Prospect:

(a) any payment or distribution of, or on account of or in relation to, any of the Liabilities which is not permitted by either Clause 6 (Proceeds of Disposals and Claims before enforcement ) or Clause 13 (Application of Proceeds); or

(b) the proceeds of any enforcement of any Transaction Security except in accordance with Clause 13 (Application of Proceeds);

that Lender will in relation to receipts and recoveries described in paragraphs (a) and (b) above:

(i) hold an amount of that receipt or recovery equal to the Relevant Liabilities (or if less, the amount received or recovered) on trust for the Security Agent and promptly pay that amount to the Security Agent for application in accordance with the terms of this Agreement; and

(ii) promptly pay an amount equal to the amount (if any) by which the receipt or recovery exceeds the Relevant Liabilities to the Security Agent for application in accordance with the terms of this Agreement.

9.2 Permitted assurance and receipts

Nothing in this Agreement shall restrict the ability of any Lender to:

(a) arrange with any person (other than a member of the Group) any assurance against loss in respect of, or reduction of its credit exposure to, any Borrower (including assurance by way of credit based derivative or sub-participation); or

(b) to receive or recover any sum in respect of its Liabilities as a result of any assignment or transfer permitted by Clause 16 (Change of Party),

and that Lender shall not be obliged to account to any other Party for any sum received by it as a result of that action.

9.3 Sums received by Obligors

If any of the Obligors receives or recovers any sum from Shining Prospect (or Oriental Prospect in respect of the Charge over the shares of Shining Prospect), under the terms of any of the Finance Documents, should have been paid to the Security Agent that Obligor will:

(a) hold an amount of that receipt or recovery equal to the Relevant Liabilities (or if less, the amount received or recovered) on trust for the Security Agent and

promptly pay that amount to the Security Agent for application in accordance with the terms of this Agreement; and

(b) promptly pay an amount equal to the amount (if any) by which the receipt or recovery exceeds the Relevant Liabilities to the Security Agent for application in accordance with the terms of this Agreement.

9.4 Saving provision

If, for any reason, any of the trusts expressed to be created in this Clause 9 (Turnover of Receipts) should fail or be unenforceable, the affected Lender or Obligor will promptly pay an amount equal to that receipt or recovery to the Security Agent to be held on trust by the Security Agent for application in accordance with the terms of this Agreement.

10. SHARING

10.1 Recovering Lender’s rights

(a) Any amount paid by a Lender (a “Recovering Lender”) to the Security Agent under Clause 8 (Effect of Insolvency Event) or Clause 9 (Turnover of Receipts) shall be treated as having been paid by the relevant Obligor and distributed in accordance with the terms of this Agreement.

(b) On a distribution of that amount by the Security Agent, the Recovering Lender will be subrogated to the rights of the Lenders which have shared in the redistribution.

(c) If and to the extent that the Recovering Lender is unable to rely on its rights under paragraph (b) of this Clause 10.1 the relevant Obligor shall be liable to the Recovering Lender for a debt equal to the amount received or recovered by the Recovering Lender and paid to the Security Agent (the “Shared Amount”) which is immediately due and payable.

10.2 Reversal of redistribution

If any part of the Shared Amount received or recovered by a Recovering Lender becomes repayable to an Obligor and is repaid by that Recovering Lender to that Obligor, then:

(a) each Lender which has received a share of the relevant Shared Amount shall, upon request of the Security Agent, pay to the Security Agent for the account of that Recovering Lender an amount equal to the appropriate part of its share of the Shared Amount (together with an amount as is necessary to reimburse that Recovering Lender for its proportion of any interest on the Shared Amount which that Recovering Lender is required to pay); and

(b) that Recovering Lender’s rights of subrogation in respect of any reimbursement shall be cancelled and the relevant Obligor will be liable to each reimbursing Lender for the amount so reimbursed.

10.3 Deferral of subrogation

No Lender or Obligor will exercise any rights which it may have by reason of the performance by it of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights under the Finance Documents of any Lender which ranks ahead of it in accordance with the priorities set out in Clause 2 (Ranking and Priority) until such time as all of the Liabilities of each Lender which ranks ahead of it in accordance with the priorities set out in Clause 2 (Ranking and Priority) (or, in the case of any Obligor, of each Lender) have been irrevocably paid in full.

11. ENFORCEMENT OF SECURITY

11.1 First Ranking Agent’s directions

The Security Agent will enforce the Transaction Security only at the request of either the First Ranking Agent or any other Agent which is entitled to request enforcement as a result of Clause 7 (Entitlement to Enforce). At all times after the request to commence enforcement has been issued and subject to the terms of this Agreement, the Security Agent will act on the directions of the Agent who shall be entitled to give directions and do any other things in relation to the enforcement of the Transaction Security (including in connection with but not limited to, the disposal, collection or realisation of assets subject to the Transaction Security) that it considers appropriate including (without limitation) determining the timing and manner of enforcement against any particular person or asset.

11.2 Obligor’s waiver

To the extent permitted under applicable law and subject to Clause 13 (Application of Proceeds), each of the Obligors waives all rights it may otherwise have to require that the Transaction Security be enforced in any particular order or manner or at any particular time or that any sum received or recovered from any person, or by virtue of the enforcement of any of the Transaction Security or of, any other security interest, which is capable of being applied in or towards discharge of any of the Secured Obligations is so applied.

11.3 Duties owed

Each of the Secured Parties and Obligors acknowledges that, in the event that the Security Agent is instructed to enforce the security conferred by the Security Documents, prior to the discharge in full of the Liabilities of the First Ranking Lenders the duties of the Security Agent and of any Receiver or Delegate owed to the Second Ranking Lenders and to the Second Ranking Agent in respect of the method, type and timing of that enforcement or of the exploitation, management or realisation of any of that Transaction Security shall be no different to or greater than the duty to the Obligors that would be owed by the Security Agent, Receiver or Delegate under general law.

12. DISPOSALS BY SECURITY AGENT

If any assets are sold or otherwise disposed of by (or on behalf of) the Security Agent, or by an Obligor at the request of the Security Agent either as a result of the enforcement of any of the Transaction Security or if that disposal is permitted under

the First Ranking Finance Documents (or after prepayment, the Second Ranking Finance Documents):

(a) the Security Agent shall be authorised to, and shall (at the cost of the Obligors) release those assets from the Transaction Security and is authorised to execute, on behalf of and without the need for any further authority from, any of the Lenders, any release of the Transaction Security or any other claim over those assets and to issue any certificates of non-crystallisation of any floating charge that may, in the absolute discretion of the Security Agent, be considered necessary or desirable;

(b) if the asset which is disposed of consists of all of the shares (which are held by an Obligor) in the capital of an Obligor or any holding company of that Obligor, the Security Agent is authorised to, and may execute on behalf of each Lender and each Obligor, as appropriate, a release of the Obligor or holding company whose shares are being disposed of from all liabilities it may have to any Lender or Obligor, both actual and contingent in its capacity as a guarantor or borrower (including any liability to any other Obligor by way of guarantee, contribution, subrogation or indemnity) and a release of any Transaction Security granted by that Obligor or holding company over any of its assets under any of the Security Documents; and

(c) the Lenders and Obligors shall execute any releases or other documents that the Security Agent may consider to be necessary to give effect to those releases provided that the proceeds of that disposal are applied in accordance with this Agreement.

13. APPLICATION OF PROCEEDS

13.1 Order of application

All amounts from time to time received or recovered by the Security Agent pursuant to the terms of any Finance Document or in connection with the realisation or enforcement of all or any part of the Transaction Security shall be held by the Security Agent on trust to apply them at any time the Security Agent sees fit provided that the Security Agent must apply such amounts as they are sufficient to repay all the Secured Obligations, to the extent permitted by applicable law (and subject to the provisions of this Clause 13 (Application of Proceeds)), in the following order of priority:

(a) in discharging any sums owing to the Security Agent (in its capacity as Security Agent), any Receiver or any Delegate;

(b) in payment of all costs and expenses reasonably incurred by any Agent or First Ranking Lender in connection with any realisation or enforcement of the Transaction Security taken in accordance with the terms of this Agreement or any action taken at the request of the Security Agent under Clause 8.4 (Lender’s actions);

(c) in payment to the First Ranking Agent on behalf of the First Ranking Lenders and Hedge Providers for application (in accordance with the terms of the First

Ranking Finance Documents and Hedging Documents) towards the discharge of the First Ranking Liabilities;

(d) in payment to the Second Ranking Agent on behalf of the Second Ranking Lenders for application (in accordance with the terms of the Second Ranking Finance Documents) towards the discharge of the Second Ranking Liabilities;

(e) if none of the Obligors is under any further actual or contingent liability under any Finance Document, in payment to any person to whom the Security Agent is obliged to pay in priority to any Obligor; and

(f) the balance, if any, in payment to the relevant Obligor.

13.2 Investment of proceeds

Prior to the application of the proceeds of the Trust Property in accordance with Clause 13.1 (Order of application) the Security Agent may, at its discretion, hold all or part of those proceeds in an interest bearing suspense or impersonal account(s) in the name of the Security Agent or of an Agent with such financial institution (including itself) and for so long as the Security Agent shall think fit (the interest being credited to the relevant account) pending the application from time to time of those monies at the Security Agent’s discretion in accordance with the provisions of this Clause 13.2.

13.3 Currency conversion

(a) For the purpose of, or pending the discharge of, any of the Secured Obligations the Security Agent may convert any moneys received or recovered by the Security Agent from one currency to another, at the spot rate at which the Security Agent is able to purchase the currency in which the Secured Obligations are due with the amount received.

(b) The obligations of any Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion.

13.4 Permitted deductions

The Security Agent shall be entitled (a) to set aside by way of reserve amounts required to meet and (b) to make and pay, any deductions and withholdings (on account of taxes or otherwise) which it is or may be required by any applicable law to make from any distribution or payment made by it under this Agreement, and to pay all taxes which may be assessed against it in respect of any of the Charged Property, or as a consequence of performing its duties, or by virtue of its capacity as Security Agent under any of the Finance Documents or otherwise (other than in connection with its remuneration for performing its duties under this Agreement).

13.5 Good discharge

(a) Any payment to be made in respect of the Secured Obligations by the Security Agent may be made to the relevant Agent on behalf of its Lenders and to the First Ranking Agent on behalf of the Hedge Providers and any payment made

in that way shall be a good discharge, to the extent of that payment, by the Security Agent.

(b) The Security Agent is under no obligation to make the payments to the Agents under paragraph (a) of this Clause 13.5 in the same currency as that in which the Liabilities of the relevant Lender are denominated.

13.6 Calculation of amounts

For the purpose of calculating any person’s share of any sum payable to or by it, the Security Agent shall be entitled to:

(a) notionally convert the Liabilities owed to any person into a common base currency (decided in its discretion by the Security Agent), that notional conversion to be made at the spot rate at which the Security Agent is able to purchase the notional base currency with the actual currency of that person’s Liabilities at the time at which that calculation is to be made; and

(b) assume that all moneys received or recovered as a result of the enforcement or realisation of the Trust Property are applied in discharge of the Liabilities in accordance with the terms of the Finance Documents under which those Liabilities have arisen.

14. THE SECURITY AGENT

14.1 Trust

(a) The Security Agent declares that it shall hold the Trust Property on trust for the Secured Parties on the terms contained in this Agreement.

(b) Each of the parties to this Agreement agrees that the Security Agent shall have only those duties, obligations and responsibilities expressly specified in this Agreement or in the Security Documents to which the Security Agent is expressed to be a party (and no others shall be implied).

14.2 No independent power

The Secured Parties shall not have any independent power to enforce, or have recourse to, any of the Transaction Security or to exercise any rights or powers arising under the Security Documents except through the Security Agent.

14.3 Security Agent’s instructions

The Security Agent shall:

(a) unless a contrary indication appears in this Agreement, act in accordance with any instructions given to it by the First Ranking Agent (or, in respect of instructions to commence enforcement of the Transaction Security only, to issue those instructions) and shall be entitled to assume that (i) any instructions received by it from the First Ranking Agent (or that other Agent) are duly given in accordance with the terms of the Finance Documents and (ii) unless it has received actual notice of revocation, that those instructions or directions have not been revoked;

(b) be entitled to request instructions, or clarification of any direction, from the First Ranking Agent as to whether, and in what manner, it should exercise or refrain from exercising any rights, powers and discretions and the Security Agent may refrain from acting unless and until those instructions or clarification are received by it; and

(c) be entitled to carry out all dealings with the Secured Parties through their respective Agents and may give to the Agents any notice or other communication required to be given by the Security Agent to the Secured Parties.

14.4 Security Agent’s actions

Subject to the provisions of Clause 14.3 (Security Agent’s instructions):

(a) the Security Agent may, in the absence of any instructions to the contrary, take such action in the exercise of any of its powers and duties under the Finance Documents which in its absolute discretion it considers to be for the protection and benefit of all the Secured Parties; and

(b) at any time after receipt by the Security Agent of notice from the First Ranking Agent directing the Security Agent to exercise all or any of its rights, remedies, powers or discretions under any of the Finance Documents, the Security Agent may, and shall if so directed by the First Ranking Agent, take any action as in its sole discretion it thinks fit to enforce the Transaction Security.

14.5 Security Agent’s discretions

The Security Agent may:

(a) assume unless it has received actual notice to the contrary from one of the Agents in its capacity as trustee for the Secured Parties or, has, if it is also an Agent, become aware in its capacity as an Agent that (i) no Default has occurred and no Obligor is in breach of or default under its obligations under any of the Finance Documents and (ii) any right, power, authority or discretion vested by any Finance Document in any person has not been exercised;

(b) engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts (whether obtained by the Security Agent or by any other Secured Party) whose advice or services may at any time seem necessary, expedient or desirable;

(c) rely upon any communication or document believed by it to be genuine and, as to any matters of fact which might reasonably be expected to be within the knowledge of a Secured Party or an Obligor, upon a certificate signed by or on behalf of that person; and

(d) refrain from acting in accordance with the instructions of any Agent (including bringing any legal action or proceeding arising out of or in

connection with the Finance Documents) until it has received any indemnification and/or security that it may in its absolute discretion require (whether by way of payment in advance or otherwise) for all costs, losses and liabilities which it may incur in bringing any action or proceedings.

14.6 Security Agent’s obligations

The Security Agent shall promptly inform each Agent of:

(a) the contents of any notice or document received by it in its capacity as Security Agent from any Obligor under any Finance Document; and

(b) the occurrence of any Default or any default by an Obligor in the due performance of or compliance with its obligations under any Finance Document of which the Security Agent has received notice from any other party to this Agreement.

14.7 Excluded obligations

Notwithstanding anything to the contrary expressed or implied in the Finance Documents, the Security Agent shall not:

(a) be bound to enquire as to (i) whether or not any Default has occurred or (ii) the performance, default or any breach by an Obligor of its obligations under any of the Finance Documents;

(b) be bound to account to any other Party for any sum or the profit element of any sum received by it for its own account;

(c) be bound to disclose to any other person (including but not limited to any Secured Party) (i) any confidential information or (ii) any other information if disclosure would, or might in its reasonable opinion constitute a breach of any law or be a breach of fiduciary duty;

(d) be under any obligations other than those which are specifically provided for in the Finance Documents; or

(e) have or be deemed to have any duty, obligation or responsibility to, or relationship of trust or agency with, any Obligor or Fourth Ranking Lender.

14.8 Exclusion of Security Agent’s liability

The Security Agent shall not accept responsibility or be liable for:

(a) the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Security Agent or any other person in or in connection with any Finance Document or the transactions contemplated in the Finance Documents, or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;

(b) the legality, validity, effectiveness, adequacy or enforceability of any Finance Document, the Trust Property or any other agreement, arrangement or

document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Trust Property;

(c) any losses to any person or any liability arising as a result of taking or refraining from taking any action in relation to any of the Finance Documents, the Trust Property or otherwise, whether in accordance with an instruction from an Agent or otherwise unless directly caused by its gross negligence or wilful misconduct or breach of this Agreement;

(d) the exercise of, or the failure to exercise, any judgment, discretion or power given to it by or in connection with any of the Finance Documents, the Trust Property or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with the Finance Documents or the Trust Property; or

(e) any shortfall which arises on the enforcement or realisation of the Trust Property.

14.9 No proceedings

No Party (other than the Security Agent) may take any proceedings against any officer, employee or agent of the Security Agent in respect of any claim it might have against the Security Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document or any Trust Property and any officer, employee or agent of the Security Agent may rely on this Clause subject to Clause 1.3 (Third Party Rights) and the provisions of the Third Parties Act.

14.10 Own responsibility

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

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

(b) the legality, validity, effectiveness, adequacy and enforceability of any Finance Document, the Trust Property and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Trust Property;

(c) whether that Secured Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the Trust Property, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Trust Property;

(d) the adequacy, accuracy and/or completeness of any information provided by the Security Agent or by any other person under or in connection with any

Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and

(e) the right or title of any person in or to, or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security or the existence of any Security affecting the Charged Property,

and each Secured Party warrants to the Security Agent that it has not relied on and will not at any time rely on the Security Agent in respect of any of these matters.

14.11 No responsibility to perfect Transaction Security

The Security Agent shall not be liable for any failure to:

(a) require the deposit with it of any deed or document certifying, representing or constituting the title of any Obligor to any of the Charged Property;

(b) obtain any licence, consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any of the Finance Documents or the Transaction Security;

(c) register, file or record or otherwise protect any of the Transaction Security (or the priority of any of the Transaction Security) under any applicable laws in any jurisdiction or to give notice to any person of the execution of any of the Finance Documents or of the Transaction Security;

(d) take, or to require any of the Obligors to take, any steps to perfect its title to any of the Charged Property or to render the Transaction Security effective or to secure the creation of any ancillary Security under the laws of any jurisdiction; or

(e) require any further assurances in relation to any of the Security Documents.

14.12 Insurance by Security Agent

(a) The Security Agent shall not be under any obligation to insure any of the Charged Property, to require any other person to maintain any insurance or to verify any obligation to arrange or maintain insurance contained in the Finance Documents. The Trustee shall not be responsible for any loss which may be suffered by any person as a result of the lack of or inadequacy of any such insurance.

(b) Where the Security Agent is named on any insurance policy as an insured party, it shall not be responsible for any loss which may be suffered by reason of, directly or indirectly, its failure to notify the insurers of any material fact relating to the risk assumed by such insurers or any other information of any kind, unless an Agent shall have requested it to do so in writing and the Security Agent shall have failed to do so within fourteen days after receipt of that request.

14.13 Custodians and nominees

The Security Agent may appoint and pay any person to act as a custodian or nominee on any terms in relation to any assets of the trust as the Security Agent may determine, including for the purpose of depositing with a custodian this Agreement or any document relating to the trust created under this Agreement and the Security Agent shall not be responsible for any loss, liability, expense, demand, cost, claim or proceedings incurred by reason of the misconduct, omission or default on the part of any person appointed by it under this Agreement or be bound to supervise the proceedings or acts of any person.

14.14 Acceptance of title

The Security Agent shall be entitled to accept without enquiry, and shall not be obliged to investigate, any right and title that any of the Obligors may have to any of the Charged Property and shall not be liable for or bound to require any Obligor to remedy any defect in its right or title.

14.15 Refrain from illegality

The Security Agent may refrain from doing anything which in its opinion will or may be contrary to any relevant law, directive or regulation of any jurisdiction which would or might otherwise render it liable to any person, and the Security Agent may do anything which is, in its opinion, necessary to comply with any such law, directive or regulation.

14.16 Business with the Obligors

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

14.17 Winding up of trust

If the Security Agent, with the approval of each of the Agents, determines that (a) all of the Secured Obligations and all other obligations secured by the Security Documents have been fully and finally discharged and (b) none of the Secured Parties is under any commitment, obligation or liability (actual or contingent) to make advances or provide other financial accommodation to any Obligor pursuant to the Finance Documents, the trusts set out in this Agreement shall be wound up and the Security Agent shall release, without recourse or warranty, all of the Transaction Security and the rights of the Security Agent under each of the Security Documents.

14.18 Perpetuity period

The perpetuity period under the rule against perpetuities, if applicable to this Agreement, shall be the period of eighty years from the date of this Agreement.

14.19 Powers supplemental

The rights, powers and discretions conferred upon the Security Agent by this Agreement shall be supplemental to the Security Agent Act 1925 and the Security Agent Act 2000 and in addition to any which may be vested in the Security Agent by general law or otherwise.

14.20 Security Agent division separate

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

(b) If information is received by another division or department of the Security Agent it may be treated as confidential to that division or department and the Security Agent’s shall not be deemed to have notice of it.

14.21 Disapplication

Section 1 of the Trustee Act 2000 shall not apply to the duties of the Security Agent in relation to the trusts constituted by this Agreement. Where there are any inconsistencies between the Trustee Act 1925 and the Trustee Act 2000 and the provisions of this Agreement, the provisions of this Agreement shall, to the extent allowed by law, prevail and, in the case of any inconsistency with the Trustee Act 2000, the provisions of this Agreement shall constitute a restriction or exclusion for the purposes of that Act.

15. CHANGE OF SECURITY AGENT AND DELEGATION

15.1 Resignation of the Security Agent

(a) The Security Agent may resign and appoint one of its affiliates as successor by giving notice to the Agents on behalf of the Lenders.

(b) Alternatively the Security Agent may resign by giving notice to the Agents on behalf of the Lenders in which case the Majority First Ranking Lenders may appoint a successor Security Agent.

(c) If the Majority First Ranking Lender has not appointed a successor Security Agent in accordance with paragraph (b) above within 30 days after the notice of resignation was given, the Security Agent (after consultation with the Agents) may appoint a successor Security Agent.

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

(e) The Security Agent’s resignation notice shall only take effect upon (i) the appointment of a successor and (ii) the transfer of all of the Trust Property to that successor.

(f) Upon the appointment of a successor, the retiring Security Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of Clause 14 (The Security Agent). Its successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if that successor had been an original Party.

(g) The Majority First Ranking Lenders may, by notice to the Security Agent, require it to resign in accordance with paragraph (b) above. In this event, the Security Agent shall resign in accordance with paragraph (b) above.

15.2 Delegation

(a) The Security Agent may, at any time, delegate (by power of attorney or otherwise) to any person for any period, all or any of the rights, powers and discretions vested in it by any of the Finance Documents.

(b) The delegation may be made upon any terms and conditions (including the power to sub-delegate) and subject to any restrictions that the Security Agent may think fit in the interests of the Secured Parties and it shall not be bound to supervise, or be in any way responsible for any loss incurred by reason of any misconduct or default on the part of any such delegate or sub-delegate unless caused directly by the gross negligence or wilful misconduct of the Security Agent.

15.3 Additional Security Agents

(a) The Security Agent may at any time appoint (and subsequently remove) any person to act as a separate security agent or as a co-security agent jointly with it (i) if it considers that appointment to be in the interests of the Secured Parties or (ii) for the purposes of conforming to any legal requirements, restrictions or conditions which the Security Agent deems to be relevant or (iii) for obtaining or enforcing any judgment in any jurisdiction, and the Security Agent shall give prior notice to the Obligors and each of the Agents of that appointment.

(b) Any person so appointed shall have the rights, powers and discretions (not exceeding those conferred on the Security Agent by this Agreement) and the duties and obligations that are conferred or imposed by the instrument of appointment.

(c) The remuneration that the Security Agent may pay to that person, and any costs and expenses incurred by that person in performing its functions pursuant to that appointment shall, for the purposes of this Agreement, be treated as costs and expenses incurred by the Security Agent.

16. CHANGE OF PARTY

16.1 Change of Party

No party may assign any of its rights and benefits or transfer any of its rights, benefits and obligations in respect of any Finance Documents or the Liabilities except as permitted by this Clause 16.

16.2 Change of Lender

A Lender may assign any of its rights and benefits or transfer any of its rights, benefits and obligations in respect of any Finance Documents to which it is a party or its Liabilities if, in the case of:

(a) a First, or Second Ranking Lender, that assignment or transfer is in accordance with the terms of the Facility Agreement to which it is a party; and

(b) a Hedge Provider, the conditions set out in Clause 5.1 (Identity of Hedge Providers) have been satisfied,

and, in each case, any assignee or transferee permitted by this Clause 16.2 has executed and delivered to the Security Agent a Lender Accession Undertaking.

16.3 Change of Agent

Any person which becomes an Agent as defined in, and in accordance with, the terms of a Facility Agreement, shall at the same time accede to this Agreement by executing and delivering to the Security Agent a Lender Accession Undertaking.

16.4 Lender Accession Undertaking

With effect from the date of acceptance by the Security Agent and, if appropriate, the relevant Agent of a Lender Accession Undertaking (which shall in each case be accepted as soon as reasonably practicable after receipt by it of a duly completed Lender Accession Undertaking) or, if later the date specified in that Lender Accession Undertaking:

(a) any Party ceasing entirely to be a Lender and/or Agent shall be discharged from further obligations towards the Security Agent and other Parties under this Agreement and their respective rights against one another shall be cancelled (except in each case for those rights which arose prior to that date); and

(b) as from that date, the replacement or new Lender and/or Agent shall assume the same obligations, and become entitled to the same rights, as if it had been an original Party to this Agreement.

16.5 New Obligor

(a) If any member of the Group gives any security, guarantee, indemnity or other assurance against loss in respect of the Liabilities, the Obligors will procure that the person giving that assurance becomes a Party to this Agreement as an Obligor by executing and delivering to the Security Agent an Obligor Accession Deed.

(b) With effect from the date of acceptance by the Security Agent of an Obligor Accession Deed or, if later, the date specified in the Obligor Accession Deed, the new Obligor shall assume the same obligations and become entitled to the same rights as if it had been an original Party to this Agreement.

16.6 Additional Parties

Each of the Parties appoints the Security Agent to receive on its behalf each Obligor Accession Deed and Lender Accession Undertaking delivered to the Security Agent and to accept and sign it if, in the Security Agent’s opinion, it is complete and appears on its face to be authentic and duly executed and until accepted and signed by the Security Agent that document shall not be effective.

17. FEES AND EXPENSES

17.1 Transaction and enforcement expenses

The Borrowers shall, from time to time on demand of the Security Agent, reimburse the Security Agent for all costs and expenses (including legal fees) on a full indemnity basis together with any applicable VAT incurred by the Security Agent and any Receiver and Delegate in connection with:

(a) the negotiation, preparation and execution of this Agreement and the Security Documents and the completion of the transactions and perfection of the security contemplated in the Security Documents; and

(b) the exercise, preservation and/or enforcement of any of the rights, powers and remedies of the Security Agent and of the Transaction Security and any proceedings instituted by or against the Security Agent as a consequence of taking or holding the Transaction Security or of enforcing those rights, powers and remedies.

17.2 Stamp taxes

The Borrower shall pay all stamp, registration, notarial and other taxes or fees to which this Agreement, the Transaction Security or any judgment given in connection with them, is or at any time may be, subject and shall, from time to time, indemnify the Security Agent on demand against any liabilities, costs, claims and expenses resulting from any failure to pay or any delay in paying any tax or fee provided that the Borrower shall not be responsible for any costs arising from the transfers or assignments by the Lenders or a change in the Agent.

18. INDEMNITIES

18.1 Priority of indemnity

The Security Agent may, in priority to any payment to the Secured Parties, indemnify itself out of the Charged Property in respect of, and pay and retain, all sums necessary to give effect to any indemnity granted to the Security Agent from the Obligors under the Finance Documents and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all moneys payable to it under this Clause.

18.2 Lenders’ indemnity

Each Lender shall (in the proportion that the Liabilities owed to it bears to the aggregate of the Liabilities owed to all the Senior Lenders for the time being (or, if the Liabilities of each of those Lenders is zero, immediately prior to their being reduced to

zero)), indemnify the Security Agent, within three business days of demand, against any cost, loss or liability incurred by the Security Agent (otherwise than by reason of the Security Agent’s gross negligence or wilful misconduct) in acting as Security Agent under the Finance Documents (unless the Security Agent has been reimbursed by an Obligor pursuant to a Finance Document).

19. INFORMATION AND CONDITIONS PRECEDENT

19.1 Information and dealing

The Lenders shall provide to the Security Agent from time to time (through their respective Agents if relevant) any information that the Security Agent may reasonably specify as being necessary or desirable to enable the Security Agent to perform its functions as Security Agent. Each First, and Second Ranking Lender shall deal with the Security Agent exclusively through its Agent and the Hedge Providers shall deal with the Security Agent exclusively through the First Ranking Agent and shall not deal directly with the Security Agent.

19.2 Disclosure

Each Obligor consents, until such time as all of the Liabilities owed by it to the Lenders have been discharged in full, to the disclosure by any of the Lenders to each other of such information concerning the Obligors as any Lender shall see fit.

19.3 Subsequent Conditions to Utilisation

Each Lender (acting through their respective Agent) shall promptly notify the first Ranking Agent if any utilisation request made by the Borrower under any of the Facility Agreements or Hedging Documents is refused and shall specify the reason for that event and the First Ranking Agent shall notify the other Lenders (through their respective Agents) and the Security Agent of that event.

20. NOTICES

20.1 Communications in writing

Any communication to be made under or in connection with this Agreement shall be made in writing and, unless otherwise stated, may be made by fax or letter.

20.2 Addresses

(a) identified with its name below; or

(b) specified on the Lender Accession Undertaking or Obligor Accession Deed to which it is a party,

or any substitute details which that Party may notify to the Security Agent (or the Security Agent may notify to the other Parties, if a change is made by the Security Agent) by not less than five business days’ notice and promptly upon receipt of any notification of any new or changed details, the Security Agent shall notify the other Parties.

20.3 Delivery

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

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

(ii) if by way of letter, when it has been left at the relevant address or five business days after being deposited in the post postage prepaid in an envelope addressed to it at that address,

and, if a particular department or officer is specified as part of its address details provided under Clause 20.2 (Addresses), if addressed to that department or officer.

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

(c) Any communication or document made or delivered to the Borrower in accordance with this Clause 18 (Notices) will be deemed to have been made or delivered to each of the Obligors.

20.4 Electronic communication

(a) Any communication to be made between the Security Agent and an Agent or a Lender under or in connection with the Finance Documents may be made by electronic mail or other electronic means, if the Security Agent and the relevant Agent or Lender:

(i) agree that, unless and until notified to the contrary, this is to be an accepted form of communication;

(ii) notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and

(iii) notify each other of any change to their address or any other such information supplies by them.

(b) Any electronic communication made between the Security Agent and an Agent or a Lender will be effective only when actually received in readable form and in the case of any electronic communication made by a Lender or Agent to the Security Agent only if it is addressed in such a manner as the Security Agent shall specify for this purpose.

20.5 English language

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

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

(i) in English; or

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

21. PRESERVATION

21.1 Partial invalidity

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

21.2 Remedies and waivers

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

21.3 Waiver of defences

The provisions of this Agreement will not be affected by an act, omission, matter or thing which, but for this Clause 21.3, would reduce, release or prejudice the subordination and priorities in this Agreement including:

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

(b) 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 Transaction Security;

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

(d) any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case, however fundamental and of whatsoever nature, and whether or not more onerous) or replacement of a Finance Document or any other document or security;

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

(f) any intermediate payment or discharge of any of the Liabilities of the Senior Lenders in whole or in part.

21.4 Priorities not affected

Except as otherwise provided in this Agreement the priorities referred to in Clause 2 (Ranking and Priority) will:

(a) not be affected by any reduction or increase in the principal amount secured by the Transaction Security in respect of the Liabilities of the Lenders or by any intermediate reduction or increase in, amendment or variation to any of the Finance Documents, or by any variation or satisfaction of, any of the Liabilities or any other circumstances;

(b) apply regardless of the order in which or dates upon which the Finance Documents and this Agreement are executed or registered or notice of them is given to any person; and

(c) secure the Liabilities in the order specified, regardless of the date upon which any of the Liabilities arise or of any fluctuations in the amount of any of the Liabilities outstanding.

22. CONSENTS, AMENDMENTS AND OVERRIDE

22.1 Required consents

(a) No term of this Agreement or of any Security Document may be amended or waived except by the written agreement of the First Ranking Agent and the Second Ranking Agent and the Security Agent and, in respect of this Agreement only but not the Security Documents, the Hedge Providers so far as such amendment relates to such Hedge Provider.

(b) If the amendment or waiver may impose new or additional obligations on or withdraw or reduce the rights of any Party, the consent of that Party is required.

(c) An amendment or waiver which relates to the rights or obligations of the Agents or the Security Agent may not be effected without the consent of the Agents or, as the case may be, the Security Agent.

(d) Any amendment or waiver given in accordance with this Clause will be binding on all Parties and the Security Agent may effect, on behalf of any Agent or Lender, any amendment or waiver permitted by this Clause 22.1.

22.2 Deemed consent

If the First Ranking Lenders at any time in respect of the Finance Documents to which they are a party, give any consent, approval, release or waiver or agree to any amendment (in this Clause a “Consent”) then, if that action was permitted by the terms of this Agreement, the other Lenders will (or will be deemed to):

(a) give a corresponding Consent in equivalent terms in relation to each of the Finance Documents to which they are a party; and

(b) do anything (including executing any document) that the First Ranking Lenders may reasonably require to give effect to this Clause 22.2.

22.3 Excluded consents

The right of the First Ranking Lenders to give Consents under Clause 22.2 (Deemed Consent) does not include the right to give any Consent which has the effect of:

(a) increasing the Liabilities; or

(b) changing the terms of this Agreement or of any Security Document.

22.4 No liability

None of the First Ranking Lenders or the First Ranking Agent will be liable to any other Lender or Agent for any Consent given or deemed to be given under this Clause 22.4.

22.5 Agreement to override

Unless expressly stated otherwise in this Agreement, this Agreement overrides anything in the Finance Documents to the contrary.

23. COUNTERPARTS

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

24. GOVERNING LAW

This Agreement is governed by English law.

25. ENFORCEMENT

25.1 Jurisdiction of English courts

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

(b) The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.

(c) This Clause 25.1 is for the benefit of the Secured Parties only. As a result, no Secured Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Secured Parties may take concurrent proceedings in any number of jurisdictions.

25.2 Service of Process

Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales):

(a) irrevocably appoints Clifford Chance Secretaries Limited as its agent for service of process in relation to any proceedings before the English courts in connection with this Agreement; and

(b) agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.

This Agreement has been entered into on the date stated at the beginning of this Agreement and is intended to be and is executed and delivered by them as a deed on the date specified above.

SCHEDULE 1

FORM OF OBLIGOR ACCESSION DEED

THIS AGREEMENT is made on [date]

BETWEEN:

(1) [INSERT FULL NAME OF NEW OBLIGOR] (the “Acceding Obligor”); and

(2) [INSERT FULL NAME OF CURRENT SECURITY AGENT] (the “Security Agent”), for itself and each of the other parties to the Intercreditor Agreement referred to below.

This agreement is made on [date] by the Acceding Obligor in relation to an Intercreditor Agreement (the “Intercreditor Agreement”) dated [·] between [INSERT NAME OF SECURITY AGENT] as Security Agent, [INSERT NAMES OF AGENTS] as agents, the Lenders and the Obligors.

The Acceding Obligor has entered into [Insert details (date, parties and description) of relevant Security Documents] (the “Additional Security Document[s]”) giving Security or a guarantee, indemnity or other assurance against loss in respect of Liabilities.

IT IS AGREED as follows:

Terms defined in the Intercreditor Agreement shall, unless otherwise defined in this Agreement, bear the same meaning when used in this Agreement.

The Acceding Obligor and the Security Agent agree that the Security Agent shall hold (a) the Security, guarantee, indemnity or other assurance against loss in respect of Liabilities created or expressed to be created pursuant to the Additional Security Document[s] and (b) all moneys from time to time received or recovered by the Security Agent in connection with the realisation or enforcement of that Security, guarantee, indemnity or other assurance against loss in respect of Liabilities, on trust for the Secured Parties on the terms and conditions contained in the Intercreditor Agreement.

The Acceding Obligor confirms that it intends to be party to the Intercreditor Agreement as an Obligor, undertakes to perform all the obligations expressed to be assumed by an Obligor under the Intercreditor Agreement and agrees that it shall be bound by all the provisions of the Intercreditor Agreement as if it had been an original party to the Intercreditor Agreement.

This Agreement shall be governed by, and construed in accordance with, English law.

THIS AGREEMENT has been signed on behalf of the Security Agent and executed as a deed(1) by the Acceding Obligor and is delivered on the date stated above.

(1) The acceding Obligor should execute this as a deed to avoid any concern about past consideration.

The Acceding Obligor

EXECUTED AS A DEED		)
BY [Full Name of Acceding Obligor]		)

		Director

		Director/Secretary

Address for notices:

Address:

Fax:


The Security Agent

[Full Name of Current Security Agent]

By:

Date:

SCHEDULE 2

FORM OF LENDER ACCESSION UNDERTAKING

To: [Insert full name of current Security Agent], for itself and each of the other Parties to the Intercreditor Agreement referred to below.

THIS UNDERTAKING is made on [date] by [insert full name of new Lender/Hedge Provider/Agent] (the “Acceding [Lender/Hedge Provider/Agent]”) in relation to the Intercreditor Agreement (the “Intercreditor Agreement”) dated [ ] between [China Development Bank] as Security Agent, [INSERT NAMES OF AGENTS] as agents, the Lenders and the Obligors. Terms defined in the Intercreditor Agreement shall bear the same meanings when used in this Undertaking.

In consideration of the Acceding [Lender/Hedge Provider/Agent] being accepted as [a First/Second Ranking Lender/Agent] [/Hedge Provider] for the purposes of the Intercreditor Agreement, the Acceding [Lender/Hedge Provider/Agent] hereby confirms that, as from [date], it intends to be party to the Intercreditor Agreement as a [First/Second Ranking Lender/Agent] [/Hedge Provider], undertakes to perform all the obligations expressed in the Intercreditor Agreement to be assumed by [an Agent/a First/Second Ranking Lender[/Hedge Provider]] and agrees that it shall be bound by all the provisions of the Intercreditor Agreement, as if it had been an original party to the Intercreditor Agreement.

[The following documents, having been approved in accordance with the terms of the Intercreditor Agreement, shall be treated as “Hedging Documents” for the purpose of the Intercreditor Agreement: [specify documents].]

This Undertaking shall be governed by and construed in accordance with English law.

THIS UNDERTAKING has been entered into on the date stated above.

Acceding [Lender/Agent]

By:

Address:

Fax:

Accepted by the Security Agent:	Accepted, in the case of First Ranking Lenders by [Agent for relevant Facility Agreement]/[relevant outgoing Agent]


for and on behalf of	for and on behalf of

[Insert actual name of Security Agent]	[Insert actual name of Agent or outgoing Agent as appropriate]

Date:	Date:

SIGNATURES

The Original Obligors

EXECUTED as a DEED

SIGNED, SEALED AND
DELIVERED BY


/s/ ZHANG ZHANKUI


As attorney(s) for and on behalf of
ORIENTAL PROSPECT PTE. LTD.
in presence of:


/s/ LUO SHAOLIN


EXECUTED AS A DEED

SIGNED, SEALED AND
DELIVERED BY


/s/ ZHANG ZHANKUI



As attorney(s) for and on behalf of
SHINING PROSPECT PTE. LTD.
in presence of:



/s/ LUO SHAOLIN
Witness’s Signature
:

The Security Agent

CHINA DEVELOPMENT BANK

By:/s/ XU QIYING

Address:

Fax:

Attention:

The Agents

CHINA DEVELOPMENT BANK as the First Ranking Agent

By:/s/ XU QIYING

Address:

Fax:

Attention:

CHINA DEVELOPMENT BANK as the Second Ranking Agent

By:/s/ XU QIYING

Address:

Fax:

Attention:

Lenders

CHINA DEVELOPMENT BANK as First Ranking Lender

By:/s/ XU QIYING

Address:

Fax:

CHINA DEVELOPMENT BANK as the Second Ranking Lender

By:/s/ XU QIYING

Address:

Fax:

February 3, 2008

EX-99.11 12 a08-4773_1ex99d11.htm EX-99.11

Exhibit 99.11

THIS NOTE HAS NOT BEEN REGISTERED UNDER THE US SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) OR WITH ANY SECURITIES REGULATORY AUTHORITY OR ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES OR ANY OTHER COUNTRY AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OF REGULATION S UNDER THE SECURITIES ACT.

Shining Prospect Pte. Ltd., a Singapore private limited company, which has elected to be treated as a partnership for U.S. federal income tax purposes (together with any permitted successors or assigns, the “Company”), for value received, hereby promises to pay to the order of Alcoa, Inc. (“Aries”), a Pennsylvania corporation (Aries, its successors or permitted assigns, as applicable, the “Holder”), in lawful money of the United States of America and in immediately available funds, the principal amount of up to ONE BILLION TWO HUNDRED MILLION DOLLARS (US$1,200,000,000.00) on February 1, 2011 (such date, the “Maturity Date”), or such lesser amount which shall remain owing hereunder taking into account any reset pursuant to this paragraph, repurchase pursuant to Article 3 below, and/or conversion pursuant to Section 7 below; and to pay interest as set forth herein on the unpaid principal amount hereof until such principal amount shall be paid in full. This Convertible Senior Secured Note (as amended, replaced or otherwise modified, in each case from time to time and whether in whole or in part, this “Note”) evidences the unpaid principal amount hereof together with all accrued and unpaid interest thereon.

The Company shall, immediately upon receipt of the proceeds from the issuance of this Note, deposit such proceeds into the Cash Collateral Account (as defined below). The Company shall use the proceeds from the Cash Collateral Account solely for the purpose of acquiring shares of Rio Tinto plc (“Scorpio North”). All shares of Scorpio North purchased with such funds shall be deposited into a segregated securities account of the Company established for this purpose, and all distributions in respect of such shares shall similarly be deposited into such securities account. The Company shall grant an account charge and a share charge in the form attached as Exhibit A (the “Charges” and together with each of the security agreements, hypothecs and other instruments and documents executed and delivered pursuant to any of the foregoing or pursuant to Section 4.08, the “Security Documents”) to the Holder to secure the Company’s obligations under this Note.

Notwithstanding the foregoing, in the event that within 30 calendar days following the date hereof the Company shall not acquire shares of Scorpio North representing at least 14.9% of the outstanding Scorpio North shares (the “Threshold Amount”) (or earlier upon the Board of Directors of the Company having determined not to acquire such Threshold Amount), then the unpaid principal amount shall be reset to be a percentage of the originally funded principal amount, equal to the ratio between the percentage of the outstanding Scorpio North shares acquired by the Company and 14.9% and the Company shall promptly refund the difference to the Holder.

If it is reasonably necessary in connection with Cancer obtaining third-party financing in connection with the transactions contemplated hereby, the Holder agrees to reasonably cooperate with the Company to make such changes to this Note and the related security arrangements to

establish a two tier structure whereby the Note would be transferred to and become the obligation of a direct wholly owning parent of the Company; provided, that the Holder shall be reasonably satisfied that such modified arrangement and the security provided thereby shall not be disadvantageous to the Holder in any material respect, and that such arrangement shall in any event continue to afford the Holder a Lien (direct or indirect) of equal security over the same collateral contemplated hereby.

This Note is issued to the Holder in accordance with and subject to the following terms and conditions:

ARTICLE 1.

DEFINITIONS

Section 1.01 Definitions.

“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in New York City are authorized or obligated to close.

“Capital Stock” means, with respect to any Person, any and all shares of stock of a corporation, partnership interests or other equivalent interests (however designated, whether voting or non-voting) in such Person’s equity, entitling the holder to receive a share of the profits and losses, and a distribution of assets, after liabilities, of such Person.

“Cancer” means Aluminum Corporation of China.

“Cash” means such coin or currency of the United States as at any time of payment is legal tender for the payment of public and private debts.

“Cash Collateral Account” means a deposit account held by the Company at a financial institution reasonably acceptable to the Holder into which the Company shall deposit the proceeds of this Note, and which shall be pledge to secured the Company’s obligations to the Holder under this Note.

“City Code” means the UK Takeover Code.

“Common Stock” means the capital stock of the Company.

“Default” means any event that is, or after notice or passage of time or both would be, an Event of Default.

“Holder” means the party named as such in the first paragraph of this Note or any successor or permitted transferee.

“Indebtedness” means of any Person at any date, without duplication, all indebtedness of such Person (other than current trade liabilities and indemnification obligations incurred in the ordinary course of business), whether or not reflected or required to be reflected on the balance

sheet of such Person, and all guarantees of any such indebtedness of any other Person by such Person.

“Initial Holding Period” means the period ending six months from the date hereof.

“Interest Payment Date” means each August 1 and February 1 of each year, commencing on August 1, 2008.

“Issue Date” means the date on which this Note is originally issued.

“Lien” means with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law (including any conditional sale or other title retention agreement, any lease in the nature thereof, any other agreement to give a security interest and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).

“Person” means an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity, including a government or political subdivision or an agency or instrumentality thereof.

“Pledged Securities” means any and all cash contributed or advanced to the Company in respect of the proceeds received by the Company from the issuance of this Note, and a number of Scorpio North shares (and other assets and property) held by the Company from time to time that bears the same relation to the total number of Scorpio North shares (and other assets and property) held by the Company as does the dollar amount of the Holder’s total debt and equity investment and loans to the Company to the dollar amount of all debt and equity investment and loans to the Company, including the aggregate amount of debt financing provided to the Company or its holding company by any third-party but only to the extent that the proceeds of such third-party debt financing has actually been used to purchase Scorpio North shares (the “Equivalent Scorpio North Shares and Other Property”).

“Scorpio” means Scorpio North and Scorpio South.

Section 1.02 Rules of Construction. Unless the context otherwise requires or except as otherwise expressly provided, a term has the meaning assigned to it; an accounting term not otherwise defined has the meaning assigned to it in accordance with U.S. GAAP; “herein,” “hereof” and other words of similar import refer to this Note as a whole and not to any particular Section, Article or other subdivision; all references to Sections or Articles or Exhibits refer to Sections or Articles or Exhibits of or to this Note unless otherwise indicated; references to agreements or instruments, or to statutes or regulations, are to such agreements or instruments, or statutes or regulations, as amended from time to time (or to successor statutes and regulations); in the event that a transaction meets the criteria of more than one category of permitted transactions or listed exceptions the Company may classify such transaction as it, in its sole discretion, determines; “or” is not exclusive; “including” means including, without limitation; and words in the singular include the plural, and words in the plural include the singular.

Section 1.03 MOU; Further Documentation. The parties hereto acknowledge and agree that they have a common understanding regarding the subject matters set forth herein and in that certain Memorandum of Understanding, dated January 30, 2008, between Cancer and Aries (the “Memorandum”). The Company and the Holder further agree to use best efforts to cooperate in good faith to amend this Note (including, if necessary, more extensive documentation) at any time and from time to time to reflect the parties’ common understanding and intentions with respect to the subject matters set forth herein and in the Memorandum and in respect of the wider financing arrangements for the acquisition of shares of Scorpio North; provided that this agreement to cooperate in good faith shall not affect the binding nature of this Note. In furtherance of the terms set forth in this Note and the Memorandum, each of the Company and the Holder shall, and shall cause their respective affiliates to, execute those instruments and take any action as may reasonably required or desirable to implement the parties’ common understanding and intentions with respect to the subject matters set forth herein and in the Memorandum.

ARTICLE 2.

PAYMENT OF PRINCIPAL AND INTEREST

The Company promises to pay the unpaid principal of this Note on the Maturity Date.

The Company promises to pay interest on the unpaid principal amount of this Note, in arrears, on each Interest Payment Date at a rate equal to the average cost of capital of all third-party financing of the Company. Interest on this Note will accrue from the most recent date to which interest has been paid on this Note or the Note surrendered in exchange for this Note or, if no interest has been paid, from the Issue Date. Interest will be computed in the basis of a 360-day year of twelve 30-day months.

All payments of principal and interest with respect to this Note shall be made on the due date thereof no later than 10:00 a.m. (New York City time) in Cash in same-day funds by wire transfer (without any counterclaim, offset or deduction whatsoever and free and clear of, and without withholding or deduction for or on account of, any present or future taxes, levies, imposts, duties, charges or fees of any nature) to an account specified by the Holder in writing to the Company not later than one Business Day prior to such due date. Any payment received by the Holder after 10:00 a.m. (New York City time), on any day, will be deemed to have been received on the next following Business Day.

All payments hereunder received by the Holder shall be applied first to the payment of accrued and unpaid interest hereunder and only thereafter to the outstanding principal balance of this Note.

Subject to (i) the Holder’s rights with respect to an Event of Default and (ii) the conversion of this Note pursuant to Section 7, no portion of the outstanding principal amount of this Note may be prepaid prior to the Maturity Date without the consent of the Holder.

The Holder shall contribute to the Company the amount necessary for the Company to make interest payments required hereunder.

ARTICLE 3.

PURCHASES

Section 3.01 Repurchase At the Option of the Holder.

(a) At any time after the Initial Holding Period or upon any winding up or liquidation or similar event with respect to the Company (a “Repurchase Event”), the Holder shall have the right, at such Holder’s option (and prior to giving effect to any such winding up or liquidation or similar event), to require the Company to elect one of the following two options:

(i) subject to applicable laws, to distribute in kind, in exchange for cancellation of this Note and any equity interests into which it may have been converted, in whole or in part, to the Holder the Equivalent Scorpio North Shares and Other Property; or

(ii) to purchase the Holder’s debt and equity interest in the Company at a price equal to the then current market value of the Equivalent Scorpio North Shares and Other Property.

Upon the Holder providing written notice to the Company, the Company shall make an election between (i) and (ii) in writing within 15 calendar days and the transaction shall be completed within 30 calendar days thereafter.

The Holder and the Company undertakes to make any required public disclosure in relation to any transfer of interests in the Equivalent Scorpio North Shares and Other Property arising out of any transaction pursuant to this Article 3. The Company and the Holder will provide each other with any reasonable information required by the other to enable them to satisfy any disclosure requirements in respect of such transactions.

ARTICLE 4.

COVENANTS

Section 4.01 Existence. The Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence and the material rights and franchises of the Company, except in the case of such rights and franchises, where the failure to do so would not have a material adverse effect on the business of the Company, or the Company has otherwise determined that it is not in the best interest of the Company to do so; and provided further that this Section does not prohibit any transaction otherwise permitted by Article 4.

Section 4.02 Reports to Holder.

(a) The Company will deliver to the Holder within 120 calendar days after the end of each fiscal year a certificate from the principal executive, financial or accounting officer of the Company stating that the officer has conducted or supervised a review of the activities of the Company and their performance under this Note and that, based upon such review, the Company has fulfilled its obligations hereunder or, if there has been a Default, specifying the Default and its nature and status.

(b) The Company will deliver to the Holder, as soon as possible and in any event within 10 calendar days after the Company becomes aware or should reasonably become aware of the occurrence of a Default, a notice setting forth the details of the Default, and the action which the Company proposes to take with respect thereto.

(c) The Company will deliver to Holder, as soon as possible after requested, such further information and reports (including financial reports) as the Holder may request.

Section 4.03 Stay, Extension and Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Note; and the Company (in each case, to the extent that it may lawfully do so) hereby covenants that it will not, by resort to any such law to the extent it would hinder, delay or impede the execution of any power herein granted to the Holder, but will suffer and permit the execution of every such power as though no such law had been enacted.

Section 4.04 Liens. The Company shall not incur, create, assume or allow to exist any lien of any nature upon or with respect to any of the Pledged Securities, except for liens in favor of the Holder created pursuant hereto.

Section 4.05 Indebtedness. The Company shall not incur, create, assume or allow to exist any Indebtedness other than the Indebtedness in respect of this Note, and Indebtedness owing to Cancer or third parties in an amount not to exceed 75% of an amount equal to (x) the value of the total of cash on hand and shares of Scorpio North (measured at the time of acquisition of such shares) minus (y) cash contributed by the Holder and shares of Scorpio North acquired with the proceeds of funds contributed by the Holder.

Section 4.06 Dividends. The Company shall not make any dividend or distribution in cash, or other property or assets, and shall not buy, repurchase, redeem or otherwise acquire or terminate for value any equity interests, in each case except as expressly permitted herein.

Section 4.07 Capital Stock. The Company will not issue any class of Capital Stock other than the Common Stock or reclassify, split, retire or combine any of the Common Stock.

Section 4.08 Security Interests; Further Assurances. The Company hereby pledges and assigns to the Holder, and hereby grants to the Holder, to secure the principal, interest and other obligations of the Company to the Holder under or in respect of this Note (whether or not allowed in a bankruptcy or similar proceeding), a Lien in of all of the Company’s right, title and interest in and to (a) the Pledged Securities (and all additional shares of, and all securities convertible into and warrants, options and other rights to purchase or otherwise acquire, stock of Scorpio North from time to time acquired by the Company in any manner (which shares shall be deemed to be part of the Pledged Securities)) and the certificates representing the Pledged Securities, and any interest or securities entitlement of the Company in the entries on the books of any financial or securities intermediary pertaining to the Pledged Securities, (b) the Cash Collateral Account, and (c) all property or other proceeds received or otherwise distributed in respect of or in exchange for any or al of the collateral referred to in clause (a) and (b) (the “Collateral”). The

Company will execute and deliver any documents, agreements and instruments and deliver any certificated securities and financing statements, and take all further action that may be required under applicable law, or that the Holder may reasonably request, so that the Holder has a perfected security interest in the Collateral to the extent, and with the priority, required hereunder and otherwise in order to effectuate the transactions contemplated hereby and in order to grant, preserve, protect and perfect the validity and priority of the Liens created or intended to be created hereby.

Section 4.09 Holding Company. The Company will not engage in any business or activity, other than the ownership of Scorpio North shares and activities incidental thereto and other activities and agreements typical of a holding company that does not itself have any business or operations, and will not own or acquire any assets, other than Scorpio North shares , cash and similar short-term liquid investments and rights and agreements entered into in accordance with the foregoing. The Company, without the consent of the Holder, may not consolidate, amalgamate, or merge with or into any Person, or sell, convey, transfer or otherwise dispose of any of the Pledged Securities or any other material asset. The Company shall not engage in any transaction with Cancer or any affiliate of Cancer.

Section 4.10 Purchases of Additional Scorpio North Shares. The Company may purchase additional shares of Scorpio North above the Threshold Amount, provided that the Company has first given the Holder written notice at least five Business Days prior to any such purchase of its intent to make such purchase (which the Holder agrees to treat confidentially) and, if the Holder elects in writing to participate in the funding of such purchase by contributing a pro rata portion of the cost of such additional shares (equal to the ratio of the dollar amount of the Holder’s total debt and equity investment and loans to the Company to the dollar amount of the Holder’s and Cancer’s total debt and equity investment and loans to the Company), then, upon such participation and funding by the Holder, at the election of the Holder, the outstanding principal amount of this note and/or the number of shares of the Company owned by the Holder shall be increased ). Neither the Holder nor Cancer nor any of their affiliates shall directly or indirectly acquire any shares of Scorpio North or shares of Rio Tinto Limited (“Scorpio South”) or any interest in any such shares other than as contemplated hereby through the Company, nor shall the Holder or Cancer or any of their affiliates otherwise take any action that would impose any obligation upon either of them or any of their affiliates to make any offer for any additional shares of Scorpio North or Scorpio South or with respect to any extraordinary transaction involving Scorpio North or Scorpio South.

ARTICLE 5.

DEFAULT AND REMEDIES

Section 5.01 Events of Default. An “Event of Default” occurs with respect to this Note if:

(a) the Company defaults in the payment of the outstanding principal of this Note when the same becomes due and payable on the Maturity Date, upon acceleration, or otherwise;

(b) the Company defaults in the payment of interest on this Note when the same becomes due and payable, and the default continues for a period of 30 calendar days (unless the cause of such default in the payment of interest shall be the failure of the Holder, as contemplated hereby, to contribute to the Company the amount necessary for the Company to make interest payments required hereunder);

(c) the Company fails to deliver all cash and any shares of Common Stock when such cash and Common Stock, if any, are required to be delivered upon conversion of this Note;

(d) the Company fails to comply with any other covenant or agreement of the Company in this Note and the default or breach continues for a period of 60 consecutive calendar days after receipt of written notice to the Company by the Holder;

(e) (i) the failure by the Company to make any payment by the end of any applicable grace period after maturity of any principal and/or accrued interest with respect to Indebtedness, where the amount of such unpaid and due principal and/or accrued interest is in an aggregate amount in excess of US$5 million, or (ii) there is an acceleration of any principal and/or accrued interest with respect to Indebtedness where the amount of such accelerated principal and interest is in an amount in excess of US$5 million because of a default with respect to such Indebtedness;

(f) the failure by the Company to pay any judgment in excess of US$5 million which judgments are not paid, discharged or stayed for a period of 30 consecutive calendar days;

(g) any security interest purported to be created hereby or under any Security Document shall cease to be, or shall be asserted in writing by the Company not to be, a valid and perfected security interest (perfected as or having the priority required by this Note) in the securities, assets or properties covered thereby, or the Company shall fail to comply with any covenant or agreement herein or in such Security Document, or any representation or warranty contained in any Security Document shall prove to be false in any material respect;

(h) the Company, pursuant to or under or within the meaning of any bankruptcy or similar insolvency or reorganization law, (i) commences a voluntary case or proceeding; (ii) consents to the entry of an order for relief against it in an involuntary case or proceeding or the commencement of any case against it; (iii) consents to the appointment of any receiver, trustee, assignee, liquidator, custodian or similar official of it or for any substantial part of its property; (iv) makes a general assignment for the benefit of its creditors; (v) files a petition in bankruptcy or answer or consent seeking reorganization or relief; or (vi) consents to the filing of such petition or the appointment of or taking possession by any receiver, trustee, assignee, liquidator, custodian or similar official;

(i) a court of competent jurisdiction enters an order or decree under any bankruptcy or similar insolvency or reorganization law that (i) is for relief against the Company in an involuntary case or proceeding, or adjudicates the Company insolvent or bankrupt; (ii) appoints any receiver, trustee, assignee, liquidator, custodian or similar official of the

Company or for any substantial part of its property; or (iii) orders the winding up or liquidation of the Company, and the order or decree remains unstayed and in effect for 60 calendar days (an event of default specified in clause (h) or (i) a “Bankruptcy Default”); or

(j) any Capital Stock of the Company held by Cancer or any affiliate of Cancer shall be directly or indirectly transferred to any entity other than as contemplated hereby or issued to any entity other than as contemplated hereby.

(k) Cancer shall fail to contribute to the Company an amount necessary for the Company to make interest payments when due on all Indebtedness other than Indebtedness owing to the Holder.

Section 5.02 Acceleration. If an Event of Default, other than a Bankruptcy Default, occurs and is continuing under this Note, the Holder, by written notice to the Company, may declare the outstanding principal of and accrued interest on this Note to be immediately due and payable. Upon a declaration of acceleration, such unpaid principal and interest will become immediately due and payable. If a Bankruptcy Default occurs, the principal of and accrued interest on this Note then outstanding will become immediately due and payable without any declaration or other act on the part of the Holder.

Section 5.03 Rights and Remedies Cumulative. No right or remedy conferred or reserved to the Holder under this Note is intended to be exclusive of any other right or remedy, and all such rights and remedies are, to the extent permitted by law, cumulative and in addition to every other right and remedy hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or exercise of any right or remedy hereunder, or otherwise, will not prevent the concurrent assertion or exercise of any other right or remedy.

Section 5.04 Delay or Omission Not Waiver. No delay or omission of the Holder to exercise any right or remedy accruing upon any Event of Default will impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Holder may be exercised from time to time, and as often as may be deemed expedient, by the Holder, as the case may be.

ARTICLE 6.

REPRESENTATIONS AND WARRANTIES

Section 6.01 Representations and Warranties of the Company. The Company hereby represents and warrants to the Holder that:

(a) it has all corporate or, if applicable, other entity power and authority to execute, deliver and perform this Note and the covenants set out herein;

(b) the execution, delivery and performance of this Note and the covenants set out herein have been duly and validly authorized and approved by all necessary corporate or, if applicable, other entity action of the Company, and no other proceedings or actions are necessary therefor;

(c) this Note has been duly and validly executed and delivered by the Company and constitutes a valid and legally binding obligation of it, enforceable against it in accordance with its terms; except as may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting the enforceability of creditors’ rights in general or by general principles of equity;

(d) assuming the accuracy of the representations and warranties of the Holder and Cancer, the execution, delivery and performance of this Note and the covenants set out herein do not and will not require any consent, approval, authorization or permit of, or filing with or notification to, any governmental authority by the Company or its affiliate;

(e) the execution, delivery and performance of this Note and the covenants set out herein do not and will not (i) violate any organizational documents of the Company or its affiliate, (ii) violate any law or judgment, order or decree of any governmental authority applicable to the Company or its affiliate, or (iii) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss of any benefit under, any contract to which the Company or its affiliate is a party;

(f) the pledge of the Collateral pursuant to this Note and the Security Documents creates a valid and perfected first priority Lien in the Collateral, securing the payment of the obligations of the Company to the Holder under or in respect of this Note.

(g) neither it nor its affiliate nor any person with whom it could be regarded as acting in concert (within the meaning of the City Code) has any interest in securities (as defined in the City Code) in Scorpio North or Scorpio South shares or has any interest in any derivatives, futures, forwards, options, swaps or related instruments that are based on Scorpio North or Scorpio South shares (other than, if applicable, through the Company) (“Interests”);

(h) if it becomes aware of an Interest or comes into concert with another person (other than the Company or another party to this agreement) after the date of this agreement and prior to the termination of this agreement, it shall notify each other party and, in the event that an obligation of disclosure arises for any party as a result, then the parties shall work cooperatively to make the required disclosure; and

(i) it is not entering into this agreement with a view toward profiting from the knowledge that an offer to acquire control of Scorpio North or Scorpio South may arise in the future.

Section 6.02 Representations and Warranties of the Holder. The Holder hereby represents and warrants to the Company that:

(a) it has all corporate or, if applicable, other entity power and authority to execute, deliver and perform this Note and the provisions set out herein;

(b) the execution, delivery and performance of this Note and the provisions set out herein have been duly and validly authorized and approved by all necessary corporate

or, if applicable, other entity action of the Holder, and no other proceedings or actions are necessary therefor;

(c) this Note has been duly and validly executed and delivered by the Holder and constitutes a valid and legally binding obligation of it, enforceable against it in accordance with its terms, except as may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting the enforceability of creditors’ rights in general or by general principles of equity;

(d) assuming the accuracy of the representations and warranties of the Company and Cancer, the execution, delivery and performance of this Note and the provisions set out herein do not and will not require any consent, approval, authorization or permit of, or filing with or notification to, any governmental authority by the Holder or its affiliates, except such filings as may be required under the securities and takeover laws of the United Kingdom, Australia and/or the United States;

(e) the execution, delivery and performance of this Note and the provisions set out herein do not and will not (i) violate any organizational documents of the Holder or its affiliates, (ii) violate any law or judgment, order or decree of any governmental authority applicable to the Holder or its affiliates, or (iii) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss of any benefit under, any contract to which the Holder or its affiliates is a party;

(f) neither the Holder nor its affiliates nor any person with whom it could be regarded as acting in concert (within the meaning of the City Code) has any interest in securities (as defined in the City Code) in any Interests;

(g) if it becomes aware of an Interest or comes into concert with another per-son (other than the Company or another party to this agreement) after the date of this Note and prior to the termination of this Note, it shall notify the other party and, in the event that an obligation of disclosure arises for any party as a result, then the parties shall work cooperatively to make the required disclosure;

(h) it is not entering into this Note with a view toward profiting from the knowledge that an offer to acquire control of Scorpio North or Scorpio South may arise in the future.

(i) except as contemplated by this Note, neither the Holder nor any of its affiliates, directly or indirectly (i) owns any securities or direct or indirect rights or options to acquire any securities of, or other interest (including any security interest) in Scorpio North or Scorpio South or (ii) has any written or oral understanding or arrangement to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in Scorpio North or Scorpio South; and

(j) except this Note and any agreements contemplated herein, neither the Holder nor any of its affiliates has entered into, directly or indirectly, any agreements, arrangements or understandings with any person (other than any agreements, arrangements or understandings

between the Holder and its advisors and consultants) with respect to its participation in the Company.

(k) The Holder understands that (i) the Note has not been registered under the US Securities Act of 1933 as amended (the “Securities Act”), (ii) the Holder is a “qualified institutional buyer” or “accredited investor” as defined in the rules of the Securities Act, and (iii) is purchasing the Note for investment and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act.

Section 6.03 Representations and Warranties of Cancer. Cancer hereby represents and warrants to the Company and the Holder that:

(a) it has all corporate or, if applicable, other entity power and authority to execute, deliver and perform this Note and the provisions set out herein;

(b) the execution, delivery and performance of this Note and the provisions set out herein have been duly and validly authorized and approved by all necessary corporate or, if applicable, other entity action of Cancer, and no other proceedings or actions are necessary therefor;

(c) this Note has been duly and validly executed and delivered by Cancer and constitutes a valid and legally binding obligation of it, enforceable against it in accordance with its terms, except as may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting the enforceability of creditors’ rights in general or by general principles of equity;

(d) assuming the accuracy of the representations of the Holder and the Company, the execution, delivery and performance of this Note and the provisions set out herein do not and will not require any consent, approval, authorization or permit of, or filing with or notification to, any governmental authority by Cancer or its affiliates, except such filings as may be required under the securities and takeover laws of the United Kingdom, Australia and/or the United States;

(e) the execution, delivery and performance of this Note and the provisions set out herein do not and will not (i) violate any organizational documents of Cancer or its affiliates, (ii) violate any law or judgment, order or decree of any governmental authority applicable to Cancer or its affiliates, or (iii) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss of any benefit under, any contract to which Cancer or its affiliates is a party;

(f) neither Cancer nor its affiliates nor any person with whom it could be regarded as acting in concert (within the meaning of the City Code) has any interest in securities (as defined in the City Code) in any Interests;

(g) if it becomes aware of an Interest or comes into concert with another per-son (other than the Company or another party to this agreement) after the date of this Note and prior to the termination of this Note, it shall notify the other party and, in the event that an obligation

of disclosure arises for any party as a result, then the parties shall work cooperatively to make the required disclosure;

(a) except as contemplated by this Note, neither Cancer nor any of its affiliates, directly or indirectly (i) owns any securities or direct or indirect rights or options to acquire any securities of, or other interest (including any security interest) in Scorpio North or Scorpio South or (ii) has any written or oral understanding or arrangement to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in Scorpio North or Scorpio South; and

(b) except this Note and any agreements contemplated herein, neither Cancer nor any of its affiliates has entered into, directly or indirectly, any agreements, arrangements or understandings with any person (other than any agreements, arrangements or understandings between Cancer and its advisors and consultants) with respect to its participation in the Company.

ARTICLE 7.

CONVERSION

Section 7.01 Conversion.

(a) The Holder of this Note shall have the right to convert this Note, in whole or in part (to such extent as the Holder may specify in any notice of conversion), at any time and from time to time on or prior to the Close of Business on the Business Day immediately preceding the Maturity Date, following the receipt by the Holder of any requisite regulatory approvals.

(b) If the Holder surrenders all or a portion of this Note for conversion:

(i) the Holder will receive a number of shares of the Company equal to (x) a number of shares that bears the same relation to the number of shares of the Company held by all Persons, including the Holder, taking into account such issuance of shares on conversion, as does the dollar amount of the Holder’s total debt and equity investment and loans to the Company to the dollar amount of all debt and equity investment and loans to the Company multiplied by (y) a fraction equal to the outstanding principal amount of this Note being converted divided by the original principal amount of this Note; and

(ii) the unpaid principal amount of this Note will be reduced so that such unpaid principal amount of this Note equals an amount equal to the sum of (x) an amount that bears the same relation to the total amount of debt of the Company (after giving effect to the reduction in debt effected by the conversion of all or a portion of the principal amount of this Note) as the number of shares of the Company issued to the Holder pursuant to (i) above (in respect of such conversion and any prior conversions) bears to the total number of shares of the Company held by the Holder and all other Persons and (y) any portion of the unpaid principal amount of this Note that shall not have been converted.

(c) For purposes of the above and the below, it is assumed that there are no shareholders or equityholders of the Company other than the Holder and Cancer.

(d) At any time, at the written election of the Holder, the Holder shall be permitted to increase the number of shares of the Company which the Holder would acquire on full conversion of this Note up to a maximum of 25% of the outstanding shares of the Company. To achieve the foregoing, the Holder may elect to increase the outstanding principal amount of this Note or acquire shares of the Company directly (or from Cancer), in each case with tandem payment to Cancer for the dilution. Such transaction shall be completed 30 calendar days following written notice from the Holder electing the foregoing and specifying the means by which the increase shall be achieved. In the event that Cancer elects to use the proceeds to acquire additional Scorpio North shares and foregoes its right to payment, the percentages shall be calculated giving effect to such acquisition of additional Scorpio North shares.

ARTICLE 8.

MISCELLANEOUS

Section 8.01 Notices. Any notice or communication to the Company or the Holder will be deemed given if in writing (i) when delivered in person or (ii) when receipt is confirmed, if sent by email or facsimile transmission. In each case the notice or communication should be addressed as set forth on the signature page hereto. The Company or the Holder by notice to the other may designate additional or different addresses for subsequent notices or communications.

Section 8.02 Limitation on Actions by the Holder. The Holder agrees that, except as contemplated hereby or as may be agreed by Cancer, for a period beginning on the date hereof and ending at the time when the Note is no longer outstanding, neither the Holder nor any of its affiliates will in any manner, directly or indirectly, without the prior written consent of Cancer: (i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (A) any acquisition of any securities (or beneficial ownership thereof), or rights or options to acquire or derivatives in respect of any securities (or beneficial ownership thereof), or any assets, indebtedness or businesses of Scorpio or any of its subsidiaries or controlled affiliates, (B) any tender or exchange offer, merger or other business combination involving Scorpio or any of its subsidiaries or controlled affiliates or assets of Scorpio or any of its subsidiaries or controlled affiliates constituting a significant portion of the consolidated assets of Scorpio or any of its subsidiaries or controlled affiliates, (C) any recapitalization, restructuring, liquidation, dissolution or extraordinary transaction with respect to Scorpio or any of its subsidiaries or controlled affiliates, or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the U.S. Securities and Exchange Commission) or consents to vote any voting securities of Scorpio or any of its controlled affiliates; (ii) form, join or in any way participate in a “group” as defined under Section 13(d) of the U.S. Securities Exchange Act of 1934, as amended) with respect to Scorpio or otherwise act in concert with any person in respect of any such securities; (iii) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, the board of directors or policies of Scorpio; (iv) take any action which would or would reasonably be expected to force Scorpio to make a public announcement regarding any of the

types of matters set forth in clause (i) above; (v) enter into any discussions or arrangement with any third party with respect to any of the foregoing; or (vi) take any action that might restrict or limit the terms upon which the Company might undertake an offer for Scorpio at any time in the future.

Section 8.03 Other Deliveries. Simultaneously with the execution and delivery of this Note, the Company has delivered to the Holder opinions of borrower’s counsel and an officer’s certificate, each in customary form for borrowers in similar circumstances.

Section 8.04 Governing Law. THE LAWS OF ENGLAND SHALL GOVERN THIS NOTE.

Section 8.05 Successors and Assigns. The Holder shall not transfer this Note or any interest therein other than to an affiliate of the Holder. The Company shall not transfer its rights or obligations under this Note without the written consent of the Holder. This Note shall be binding upon the Holder and the Company and their respective permitted successors and assigns

Section 8.06 Separability. In case any provision in this Note is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.

Section 8.07 Amendment; Waiver. No failure or delay on the part of the Holder in exercising any power or right hereunder, and no course of dealing between the Company and the Holder of this Note, shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. No modification or waiver of any provision of this Note nor consent to any departure by the Company therefrom shall in any event be effective unless the same shall be in writing and executed by the Holder. Any such amendment or waiver shall be binding upon the Holder, the Company and their respective successors and permitted assigns. No notice to or demand on the Company in any case shall entitle the Company to any other or further notice or demand in similar or other circumstances. No amendment to, or modification of, any provision of this Note shall in any event be effective unless the same shall be in writing and executed and delivered by the Company and the Holder. No waiver of, or consent with respect to, any provision of this Note shall in any event be effective unless the same shall be in writing and executed and delivered by the party from whom such waiver or consent is sought.

SIGNATURES

IN WITNESS WHEREOF, the parties hereto have caused this Note to be duly executed as of the date first written above.

SHINING PROSPECT PTE. LTD
as Issuer (the Company)


By:		/s/ ZHAO ZHENGANG
		Name: Zhao Zhengang
		Title: Director


By:	/s/ WANG WENFU
	Name: Wang Wenfu
	Title: Director

Address:






ALCOA, INC.
as Holder


By:		/s/ BARBARA JEREMIAH
		Name: Barbara Jeremiah
		Title: Executive Vice President

Address:

EX-99.12 13 a08-4773_1ex99d12.htm EX-99.12

Exhibit 99.12

DATE February 6, 2008

SHINING PROSPECT PTE. LTD.

as Chargor

ALCOA, INC.

as Chargee

CHARGE OVER SHARES

Macfarlanes

10 Norwich Street

London EC4A 1BD

WXS//3464152.5

CONTENTS

Clause		Page

1	Definitions and interpretation	2
2	Covenant to pay; Further advances	5
3	Grant of security	5
4	Restrictions on dealing	6
5	Securities	6
6	Representations and warranties	9
7	Power to remedy	9
8	Enforcement	9
9	Receiver	11
10	Amounts received	12
11	Power of attorney and delegation	14
12	Protection of security and further assurance	14
13	Costs and indemnity	15
14	Miscellaneous	15
15	Demands and notices	17
16	Assignment and transfer	17
17	Release of Security	17
18	Governing law	18
19	Enforcement	18
20	Counterparts	18

CHARGE OVER SHARES

DATE

PARTIES

1 SHINING PROSPECT PTE. LTD. a Singapore private limited company whose registered office is at 6 Temasek Boulevard 29th Floor, Suntec Tower Four, Singapore 038986 (the “Chargor”); and

2 ALCOA, INC. a Pennsylvania corporation (the “Chargee”).

BACKGROUND

(A) The Chargor is entering into this Deed in connection with the Aries Note.

(B) The Chargee and the Chargor intend this document to take effect as a deed notwithstanding the fact that a party may only execute this document under hand.

IT IS AGREED as follows:

1 Definitions and interpretation

Unless otherwise provided in this Deed, terms defined in the Aries Note shall have the same meaning where used in this Deed.

1.1 Definitions

In this Deed, unless the context otherwise requires:

Aries Note: means the promissory note dated on or around the date of this Deed between the Chargor as issuer and the Chargee as holder;

Charged Assets: means all the assets for the time being subject to the Security created by this Deed (and references to the Charged Assets include references to any part of it);

CREST: means the relevant systems as defined in the Uncertificated Securities Regulations 1995 in respect of which Euroclear UK & Ireland Limited is the Operator (as defined in those Regulations);

Event of Default: shall have the meaning given to it in the Aries Note;

Legal Reservations means:

(a) the principles that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;

(b) the time barring of claims under the Limitation Acts, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of UK stamp duty may be void and defences of set-of for counterclaim;

(d) any other matters which are set out as qualifications or reservations as to matters of law of general application in any legal opinions delivered in connection with the entry into this Deed.

LPA: means the Law of Property Act 1925;

Receiver: means a person appointed by the Chargee to be a receiver or receiver and manager or (if permitted by law) an administrative receiver of all or any part of the Charged Assets;

Secured Liabilities: means all present and future moneys, obligations and liabilities owed by the Chargor to the Chargee, whether actual or contingent and whether owed jointly or severally, as principal or surety and/or in any other capacity whatsoever under or in connection with the Aries Note except for any monies, obligations or liabilities which, if they were so included would result in an infringement of Section 151 of the Companies Act 1985 or any equivalent and applicable provisions under the laws of the jurisdiction of incorporation of the Chargor;

Securities: means any and all shares issued by the Securities Issuer now or at any time hereafter (and from time to time) held on behalf of the Chargor in the Securities Account, together with all allotments offered or arising in respect thereof or incidental thereto and all stocks, shares, loan capital, securities, bonds, investments, rights, income, money or property accruing, deriving, offered or paid from time to time by way of dividend, distribution, interest, exchange, capital reorganisation, conversion, redemption, bonus, rights, preference, option or otherwise in respect thereof;

Securities Account: means the account of the Chargor held with Lehman Brothers International (Europe) at 25 Bank Street, London, E14 5LE with account name: Shining Prospect Pte. Ltd. Ref Carthage and account no: 05 60 62 66;

Securities Issuer: means Rio Tinto plc;

Securities System: means any securities system including CREST and any other system or facility (whether established in the United Kingdom or elsewhere) providing means for the deposit of and/or clearance of transactions in Securities;

Securities System Rights: means all rights against the operator of any Securities System in relation to any Securities that are held in a Securities System or against any third party through whom the Chargor holds such securities or against any participant in relation to any Securities, in each case, now or at any time hereafter (and from time to time) owned by the Chargor or in which the Chargor has an interest;

Security Period: means the period starting on the date of this Deed and ending on the date on which the Secured Liabilities have been unconditionally and irrevocably paid and discharged in full.

1.2 Construction

1.2.1 Unless otherwise provided in this Deed, terms defined in the Aries Note shall bear the same meaning in this Deed, unless specified to the contrary.

1.2.2 In this Deed (unless the context requires otherwise) any reference to:

1.2.2.1 the Chargor, the Chargee or Receiver or any other person shall be construed so as to include their successors in title, permitted assigns, permitted transferees and (in the case of any Receiver) lawful substitutes and/or replacements;

1.2.2.2 the Aries Note or any other agreement or instrument is a reference to that Aries Note or other agreement or instrument as amended (however fundamentally, including any amendment providing for any increase in the amount of any facility or other liability) from time to time with the agreement of the relevant parties and (where such consent is, by the terms of this Deed or the relevant document, required to be obtained as a condition to such amendment being permitted) the prior consent of the Chargee;

1.2.2.3 any reference to the Security constituted by this deed becoming “enforceable” shall means that the Security created under this Deed has become enforceable under Clause 8.1 (Enforcement events);

1.2.2.4 “owned” includes having legal or equitable title to or a right to have legal or equitable title transferred;

1.2.2.5 a “law” includes a reference to the common law, any statute, bye-law, regulation or instrument and any kind of subordinate legislation, and any order, requirement, code of practice, circular, guidance note, licence, consent or permission made or given pursuant to any of the foregoing;

1.2.2.6 a provision of law is a reference to that provision as amended or re-enacted from time to time;

1.2.2.7 a time of day is a reference to London time;

1.2.2.8 any gender includes a reference to the other genders;

1.2.2.9 the singular includes a reference to the plural and vice versa; and

1.2.2.10 a Clause or Schedule is to a Clause or Schedule (as the case may be) of or to this Deed.

1.2.3 Clause and Schedule headings are for ease of reference only.

1.3 Secured Liabilities

References in this Deed to the Secured Liabilities shall be construed in relation to the Aries Note so as to include (i) any increase or reduction in any amount made

available thereunder and/or any alteration and/or addition to the purposes for which any such amount, or increased or reduced amount, may be used, (ii) any ancillary facilities provided in substitution for or in addition to the facilities originally made available thereunder, (iii) any rescheduling of the indebtedness incurred thereunder whether in isolation or in connection with any of the foregoing and (iv) any combination of any of the foregoing.

2 Covenant to pay; Further advances

2.1 Covenant to pay

The Chargor hereby covenants with the Chargee that it will on demand pay and discharge all Secured Liabilities owing or incurred from or by it to the Chargee when the same become due (subject to applicable grace periods) whether by acceleration or otherwise, together with interest to the date of payment at such rates and upon such terms as may from time to time be agreed, commission, fees, enforcement expenses and other charges and all legal and other costs, charges and expenses, on a full and unqualified indemnity basis, which may be incurred by the Chargee in relation to the enforcement of any such Secured Liabilities.

2.2 Potential invalidity

Neither the covenant to pay in Clause 2.1 (Covenant to pay) nor the Security constituted by this Deed shall extend to or include any liability or sum which would, but for this Clause, cause such covenant or Security to be unlawful under any applicable law.

2.3 Further advances

This Deed secures further advances made under or pursuant to the terms of the Aries Note.

3 Grant of security

3.1 Fixed security

As a continuing security for the payment or discharge of the Secured Liabilities, the Chargor with full title guarantee hereby charges to the Chargee, by way of first fixed charge, all its:

3.1.1 Securities; and

3.1.2 Securities System Rights.

3.2 Title documents

The Chargor shall within 10 Business Days of the date of acquisition of any Charged Assets deposit with the Chargee (and the Chargee shall during the continuance of this security be entitled to hold):

3.2.1 all deeds and documents of title (if any) relating to the Charged Assets as the Chargee may from time to time require; and

3.2.2 all certificates (if any) relating to the Securities and such instruments of transfer in blank and other documents as the Chargee may from time to time require.

4 Restrictions on dealing

4.1 Negative pledge and restriction on disposal

The Chargor hereby covenants with the Chargee that it will not at any time except in accordance with the terms of the Aries Note:

4.1.1 create or purport to create or permit to subsist any Security on or in relation to the Charged Assets; or

4.1.2 enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer, surrender or otherwise dispose of or cease to exercise control of all, or part of any interest in any Charged Assets.

5 Securities

5.1 Registration of Securities

The Chargee may at any time following an Event of Default that is continuing cause any or all of the Securities to be registered in the name of the Chargee or its nominee. The Chargor agrees promptly to execute and deliver all such transfers and other documents and do all such things as may be necessary or desirable to achieve such registration.

5.2 Additional registration obligations

The Chargor hereby: grants and agrees to procure (insofar as it is able by the exercise of all voting rights, powers of control and other means available to it to do so) as necessary, all consents, waivers, approvals and permissions which are necessary, under the articles of association of the Securities Issuer or otherwise, for the transfer of the Securities to the Chargee or its nominee or to a purchaser upon enforcement of this Deed.

5.3 Dividends and voting rights prior to enforcement

Until the security constituted by this Deed becomes enforceable:

5.3.1 all dividends paid or payable in respect of the Securities may be paid directly to the Chargor who shall be permitted to apply such dividends as it deems fit to the extent permitted by the Aries Note;

5.3.2 dividends paid in respect of any of the Securities and received by the Chargee or its nominee shall, on request by the Chargor, be released and paid to the Chargor;

5.3.3 the Chargor may exercise all voting and other rights and powers attaching to the Securities and exercisable by it provided that the exercise of such voting and other rights and powers would not prejudice the validity and/or enforceability of the Liens created under this Deed or cause an Event of Default to occur; and

5.3.4 the Chargee will (to the extent that it has or will acquire any such rights or powers) exercise all voting and other rights and powers attaching to the Securities and exercisable by the Chargee or its nominee as the Chargor may from time to time direct provided that acting in accordance with such directions would not prejudice the validity and/or enforceability of the Liens created under this Deed or cause an Event of Default to occur.

5.4 Dividends and voting rights post enforcement

After the security constituted by this Deed has become enforceable:

5.4.1 all dividends and other distributions paid in respect of the Securities and received by the Chargor shall be held on trust for the Chargee and forthwith paid into the account nominated by the Chargee or, if received by the Chargee, shall be retained by the Chargee; and

5.4.2 the Chargee may exercise, or direct the exercise of, all voting and other rights and powers attaching to the Securities as the Chargee may in its absolute discretion think fit and the Chargor shall, and shall procure that its nominees shall, comply with any directions from the Chargee concerning the exercise of such rights and powers.

5.5 Additional Covenants

The Chargor further covenants with the Chargee that:

5.5.1 Calls on Securities

it shall duly and promptly pay all calls, instalments and other moneys which may be payable from time to time in respect of the Securities, it being acknowledged by the Chargor that the Chargee shall be under no liability whatsoever in respect of any such calls, instalments or other moneys in its capacity as Chargee under this Deed;

5.5.2 No alteration of Securities

it shall not without the Chargee’s prior consent or unless permitted under the Aries Note amend, or agree to the amendment of, the memorandum or articles of association of the Securities Issuer or the rights or liabilities attaching to any of the Securities in a manner which would prejudice the validity and/or enforceability of the Liens created under this Deed or cause an Event of Default to occur;

5.5.3 Securities information

it shall promptly send to the Chargee copies of all documents which are sent to holders of any Securities in such capacity; and

5.5.4 Custodian arrangements

it shall promptly give notice of this Deed to any custodian of any Securities in any form which the Chargee may reasonably require and use all reasonable endeavours to ensure that the custodian acknowledges that notice in any form which the Chargee may reasonably require.

5.6 CREST securities

The Chargor further covenants with the Chargee that:

5.6.1 it shall in respect of any Securities which are held in CREST at any time on or after the date hereof:

5.6.1.1 deliver to the Chargee a certified signed copy of an irrevocable instruction from it to the Chargor’s current registrar or CREST participant (as appropriate) or such other person as may be appointed registrar or CREST participant (as appropriate) (the “Securities Custodian”) substantially in the form set out in Part I of Schedule 1 (Form of irrevocable instruction to Securities Custodian) or such other form as is acceptable to the Chargee (the “Instruction”); and

5.6.1.2 deliver the original signed Instruction to the Securities Custodian and use all reasonable endeavours to procure the delivery to the Chargee of a signed copy of an irrevocable acknowledgement of the Instruction from the Securities Custodian substantially in the form set out in Part II of Schedule 1 (Form of acknowledgement from Securities Custodian) or such other form as is acceptable to the Chargee;

5.6.2 it shall sign and return to the Chargee the endorsement on a letter from the Chargee to the Chargor substantially in the form of Schedule 2 (Form of CREST Securities letter), completed in respect of Securities held in CREST which the Chargee requires it to transfer to a CREST account for the Chargee or its nominee. The Chargor and the Chargee acknowledge that such letter and endorsement are expressly contemplated by this Deed and are to be taken as forming a single deed with it;

5.6.3 it shall promptly, following the withdrawal of any Securities from CREST and/or their conversion into certificated form procure the deposit of all deeds and other documents of title in respect of such Securities in accordance with and shall take all the steps required by Clause 3.2 (Title Documents) in relation to those Securities; and

5.6.4 it shall give such instructions to CREST or any other relevant person and provide such documents as the Chargee may require for perfecting the security intended to be created by this Deed in respect of Securities held within CREST or to enable the Chargee or its nominees to comply with all its obligations in respect of any such Securities and their related rights,

and the Chargor hereby provides to CREST the authorisations in relation to any Securities held within CREST which are required by CREST under its standard terms of business from time to time, acknowledges that the Securities Custodian holds the Chargor’s rights in respect of such Securities as agent and trustee on behalf of the Chargee and agrees that the Securities Custodian may enforce such rights as trustee for the Chargee.

6 Representations and warranties

6.1 Representations and warranties

The Chargor represents and warrants to the Chargee as follows:

6.1.1 it is and will remain (except as permitted under the terms of the Aries Note) the legal and beneficial owner of the Charged Assets;

6.1.2 it has not received or acknowledged notice of any adverse claim by any person in respect of the Charged Assets or any interest in it;

6.1.3 there are no covenants, agreements, reservations, conditions, interests, rights or other matters whatever which materially adversely affect the Charged Assets;

6.1.4 the Securities are all fully paid up and are free from any Lien of any kind (except for Liens in favour of the Chargee created pursuant to this Deed and in favour of China Development Bank created pursuant to a debenture by and between the Chargor and China Development Bank dated as of February 3, 2008);

6.1.5 subject to the Legal Reservations, this Deed creates the Security it purports to create and is not liable to be amended or otherwise set aside on its liquidation or otherwise.

6.2 Repetition

The representations and warranties set out in Clause 1.1 (Representations and warranties) will be deemed to be repeated by the Chargor on each day of the Security Period by reference to the facts and circumstances then existing.

6.3 Notice of breach

The Chargor will promptly upon becoming aware of the same give the Chargee notice in writing of any breach of any representation or warranty set out in Clause 1.1 (Representations and warranties).

7 Power to remedy

7.1 If the Chargor is at any time in breach of any of its obligations contained in this Deed, the Chargee shall be entitled (but shall not be bound) to remedy such breach and the Chargor hereby irrevocably authorises the Chargee and its agents to do all such things necessary or desirable in connection therewith.

7.2 The rights of the Chargee contained in this Clause 2 are without prejudice to any other rights of the Chargee hereunder and the exercise by the Chargee of its rights under this Clause shall not make the Chargee liable to account as a mortgagee in possession.

8 Enforcement

8.1 Enforcement events

8.1.1 The security constituted by this Deed shall become immediately enforceable if an Event of Default occurs which is continuing.

8.1.2 After the security constituted by this Deed has become enforceable, the powers of sale under the LPA and all other powers of the Chargee shall immediately be exercisable and the Chargee may in its absolute discretion enforce all or any part of the security created by this Deed as it sees fit.

8.2 Statutory power of sale

The statutory power of sale shall arise on and be exercisable at any time after the execution of this Deed (and the Secured Liabilities shall be deemed to have become due and payable for that purpose), provided that the Chargee shall not exercise such power of sale until the security constituted by this Deed has become enforceable.

8.3 Extension of statutory powers

Any restriction imposed by law on the power of sale (including under section 103 of the LPA) or the right of a mortgagee to consolidate mortgages (including under section 93 of the LPA) does not apply to the security constituted by this Deed and the Chargee or any Receiver shall have the right to consolidate all or any of the security constituted by this Deed with any other Security in existence at any time and to make any applications to the Land Registry in support of the same.

8.4 No obligation to enquire

No person dealing with the Chargee or any Receiver appointed hereunder, or its agents or brokers, shall be concerned to enquire:

8.4.1 whether the security constituted by this Deed has become enforceable;

8.4.2 whether any power exercised or purported to be exercised has become exercisable;

8.4.3 whether any money remains due under the Aries Note;

8.4.4 as to the necessity or expediency of the stipulations and conditions subject to which any sale of any Charged Assets shall be made, or otherwise as to the propriety or regularity of any sale of any of the Charged Assets; or

8.4.5 how any money paid to the Chargee or Receiver, or its agents or brokers is to be applied.

8.5 No liability as mortgagee in possession

Neither the Chargee nor any Receiver shall be liable:

8.5.1 to account as mortgagee in possession in respect of all or any of the Charged Assets; or

8.5.2 for any loss upon realisation of, or for any neglect or default of any nature whatsoever in connection with, all or any of the Charged Assets for which a mortgagee in possession might as such be liable.

8.6 Redemption of Prior Security Interests

At any time after the security constituted by this Deed shall have become enforceable the Chargee may:

8.6.1 redeem any prior Security;

8.6.2 procure the transfer thereof to itself; and/or

8.6.3 may settle and pass the accounts of the prior encumbrancer and any account so settled and passed shall be conclusive and binding on the Chargor and all monies paid by the Chargee to the prior encumbrancer in accordance with such accounts shall as from such payment be due from the Chargor to the Chargee on current account and shall bear interest and be secured as part of the Secured Liabilities.

9 Receiver

9.1 Appointment of Receiver

At any time after:

(a) the security constituted by this Deed becomes enforceable; or

(b) at the request of the Chargor,

the Chargee may without further notice, under seal or by writing under hand of a duly authorised officer of the Chargee:

9.1.1 appoint any person or persons to be a Receiver of all or any part of the Charged Assets of the Chargor; and

9.1.2 (subject to Section 45 of the Insolvency Act 1986) from time to time remove any person appointed to be Receiver and appoint another in his place.

9.2 More than one appointment

Where more than one person is appointed Receiver, they will have power to act separately (unless the appointment by the Chargee specifies to the contrary).

9.3 Additional powers

9.3.1 The powers of appointing a Receiver conferred by this Deed shall be in addition to all statutory and other powers of the Chargee under the Insolvency Act 1986 and the LPA or otherwise and shall be exercisable without the restrictions contained in Section 109 of the LPA or otherwise.

9.3.2 The power to appoint a Receiver (whether conferred by this Deed or by statute) shall be and remain exercisable by the Chargee notwithstanding any prior appointment in respect of all or any part of the Charged Assets.

9.4 Agent of the Chargor

9.4.1 Any Receiver shall be the agent of the Chargor and the Chargor shall be solely responsible for his acts and remuneration as well as for any defaults committed by him.

9.4.2 The Chargee will not incur any liability (either to the Chargor or to any other person) by reason of the appointment of a Receiver.

9.5 Powers of Receiver

A Receiver shall have (and shall be entitled to exercise), in relation to the Charged Assets over which he is appointed, the following powers (as the same may be varied or extended by the provisions of this Deed):

9.5.1 all of the powers of an administrative receiver set out in Schedule 1 to the Insolvency Act 1986 (whether or not the Receiver is an administrative receiver);

9.5.2 all of the powers conferred from time to time on receivers, mortgagors and mortgagees in possession by the LPA;

9.5.3 all of the powers and rights of a legal and beneficial owner and the power to do or omit to do anything which the Chargor itself could do or omit to do; and

9.5.4 the power to do all things which, in the opinion of the Receiver are incidental to any of the powers, functions, authorities or discretions conferred or vested in the Receiver pursuant to this Deed or upon receivers by statue or law generally (including the bringing or defending of proceedings in the name of, or on behalf of, the Chargor; the collection and/or realisation of Charged Assets in such manner and on such terms as the Receiver sees fit; and the execution of documents in the name of the Chargor (whether under hand, or by way of deed or by utilisation of the company seal of the Chargor)).

10 Amounts received

10.1 Application of proceeds

The Receiver shall apply all monies received by him (other than insurance monies):

10.1.1 first in paying all rents, taxes, rates and outgoings affecting any Charged Assets;

10.1.2 secondly in paying all costs, charges and expenses of and incidental to his appointment and the exercise of his powers and all outgoings paid by him;

10.1.3 thirdly in paying his remuneration (as agreed between him and the Chargee);

10.1.4 fourthly in or towards discharge of the Secured Liabilities in such order and manner as the Chargee shall determine; and

10.1.5 finally in paying any surplus to the Chargor or any other person entitled to it.

10.2 Section 109(8) Law of Property Act 1925

Neither the Chargee nor any Receiver shall be bound (whether by virtue of Section 109(8) of the Law of Property Act 1925, which is hereby varied accordingly, or otherwise) to pay or appropriate any receipt or payment first towards interest rather than principal or otherwise in any particular order as between any of the Secured Liabilities.

10.3 Currencies of denomination

For the purpose of or pending the discharge of any of the Secured Liabilities the Chargee may convert any monies received, recovered or realised by the Chargee under this Deed from their existing denominations and/or currencies of denomination into such other denominations and/or currencies of denomination as the Chargee may think fit and any such conversion shall be effected at the then prevailing spot selling rate of exchange obtained by the Chargee.

10.4 Suspense account

All monies received recovered or realised by the Chargee under this Deed may at the discretion of the Chargee be deposited by the Chargee in any interest bearing suspense or impersonal account and may be held in such account for so long as the Chargee thinks fit pending the application from time to time (as the Chargee shall be entitled to direct as it may think fit) of such monies and accrued interest thereon (if any) in or towards the discharge of any of the Secured Liabilities.

10.5 New accounts

If the Chargee receives notice of any subsequent charge or other interest affecting all or part of the Charged Assets, the Chargee may open a new account or accounts for the Chargor in its books and (without prejudice to the Chargee’s right to combine accounts) no money paid to the credit of the Chargor in any such new account will be appropriated towards or have the effect of discharging any part of the Secured Liabilities. If the Chargee does not open a new account or accounts immediately on receipt of such notice then unless the Chargee gives express notice to the contrary to the Chargor as from the time of receipt of such notice by the Chargee all payments made by the Chargor to the Chargee in the absence of any express appropriation by the Chargor to the contrary shall be treated as having been credited to a new account of the Chargor and not as having been applied in reduction of the Secured Liabilities.

10.6 Chargee set-off rights

The Chargee may set off any matured obligation due from the Chargor under this Deed against any matured obligation owed by the Chargee to the Chargor, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Chargee may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.

11 Power of attorney and delegation

11.1 Power of attorney

The Chargor hereby by way of security irrevocably appoints the Chargee and (jointly and severally) each and every Receiver of this Deed to be its attorney and in its name and on its behalf and as its act and deed or otherwise and after the occurrence of an Event of Default to sign, execute, seal, deliver, complete any blanks in and otherwise perfect any deed, transfer, assurance, agreement, instrument or act which such Receiver or the Chargee may consider expedient in the exercise of any of his or its powers or in respect of the Chargor’s obligations under this Deed. The power of attorney hereby granted is to secure the performance of obligations owed to the donees within the meaning of the Powers of Attorney Act 1971.

11.2 Ratification

The Chargor ratifies and confirms and agrees to ratify and confirm:

11.2.1 all transactions entered into by the Chargee and/or any Receiver in the proper exercise of its or their powers in accordance with this Deed; and

11.2.2 all transactions entered into by the Chargee and/or any Receiver in signing, sealing, delivering and otherwise perfecting any assignment, mortgage, charge, security, document or other act.

11.3 The Chargee and any Receiver shall have full power to delegate the powers, authorities and discretions conferred on it or him by this Deed (including the power of attorney), on such terms and conditions as it or he shall see fit which shall not preclude exercise of these powers, authorities or discretions by it or him or any revocation of the delegation or subsequent delegation.

12 Protection of security and further assurance

12.1 Independent security

This Deed shall be in addition to and independent of every other security or guarantee which the Chargee may at any time hold for any of the Secured Liabilities and it is hereby declared that no prior security held by the Chargee over the whole or any part of the Charged Assets shall merge in the security created by this Deed.

12.2 Continuing security

This Deed shall remain in full force and effect as a continuing security for the Secured Liabilities, notwithstanding any settlement of account or intermediate payment or discharge in whole or in part.

12.3 Rights Cumulative

No failure to exercise, nor delay in exercising, on the part of the Chargee, any right or remedy under this Deed shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise, or the exercise of any right or remedy. The rights and remedies of the Chargee

provided in this Deed are cumulative and not exclusive of any rights or remedies provided by law.

12.4 No Chargor set-off

The Chargor waives any right of set-off it may have now or at any time in the future in respect of the Secured Liabilities (including sums payable by the Chargor under this Deed).

12.5 Further assurance

12.5.1 The Chargor must, promptly upon request by the Chargee or any Receiver at its own expense, take whatever action the Chargee or a Receiver may require for:

12.5.1.1 creating, perfecting or protecting any security intended to be created by or pursuant to this Deed;

12.5.1.2 facilitating the realisation of any Charged Asset;

12.5.1.3 exercising any right, power or discretion conferred on the Chargee, or any Receiver or any of their respective delegates or sub-delegates in respect of any Charged Asset; or

12.5.2 This includes:

12.5.2.1 the re-execution of this Deed;

12.5.2.2 the execution of any legal mortgage, charge, transfer, conveyance, assignment or assurance of any property, whether to the Chargee or to its nominee; and

12.5.2.3 the giving of any notice, order or direction and the making of any filing or registration,

which, in any such case, the Chargee (or the Receiver as appropriate) may think expedient.

13 Costs and indemnity

The Chargor shall pay or reimburse to the Chargee and any Receiver on demand, on a full indemnity basis, all costs, charges and expenses (including legal fees) in any way incurred by the Chargee and/or the Receiver in protecting, perfecting, preserving or enforcing (or attempting to do so) any of the Chargee’s rights under this Deed or in suing for or recovering any of the Secured Liabilities (including, without limitation, the costs of any proceedings in relation to this Deed or the Secured Liabilities).

14 Miscellaneous

14.1 Certificates conclusive

A certificate or determination by the Chargee as to any amount or rate under this Deed shall be prima facie evidence of that amount or rate in the absence of any manifest error.

14.2 Severability

If any of the provisions of this Deed is or becomes invalid or unenforceable, the validity and enforceability of the remaining provisions shall not be affected or impaired thereby.

14.3 Section 2(1) Law of Property (Miscellaneous Provisions) Act 1989

The terms of the Aries Note and of any side letters between any parties in relation to the Aries Note are incorporated in this Deed to the extent required to ensure that any purported disposition of Charged Assets contained in this Deed is a valid disposition in accordance with Section 2(1) of the Law of Property (Miscellaneous Provisions) Act 1989.

14.4 Third party rights

Save as otherwise expressly provided to the contrary in the Aries Note, a third party (being any person other than the Chargor and the Chargee and their permitted successors and assigns) has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Deed.

14.5 Perpetuity period

The perpetuity period applicable to all trusts declared by this Deed shall be 80 years.

15 Demands and notices

15.1 Mode of service

Any demand for payment and any other demand, notice, consent or communication made or given on or to the Chargor under or in connection with this Deed may be left at any of the addresses referred to in Clause 10.2 (Addresses) or sent there by first class post or facsimile. Any such demand shall be validly made whether or not it contains an accurate statement of the amount of the Secured Liabilities.

15.2 Addresses

The addresses referred to in Clause 10.1 (Mode of service) are:

15.2.1 the Chargor’s registered office;

15.2.2 any address at which the Chargor carries on business;

15.2.3 any address shown on any current letterhead of the Chargor; and

15.2.4 the address of the Chargor shown in this Deed or, if the Chargor has given written notice to the Chargee of any other address for service, the most recent address so notified.

15.3 Proof of service

In proving service of a document it shall be sufficient to prove that it was left at the relevant location or that it was properly addressed, stamped and posted or transmitted by facsimile.

15.4 Deemed service

Any demand or notice:

15.4.1 if left at the relevant address, shall be deemed given when so left;

15.4.2 if sent by post, shall be deemed given when it would be delivered in the normal course of post; and

15.4.3 if sent by facsimile before 5.00 p.m. on a Business Day in the place of receipt, shall be deemed given on that day, and if so sent at any other time shall be deemed given at the opening of normal business hours on the next following Business Day.

16 Assignment and transfer

16.1 Assignment by Chargee

The Chargee may at any time without the consent of the Chargor, assign or transfer the whole or any part of its rights under this Deed to any person to which it can transfer its rights in accordance with the terms of the Aries Note.

16.2 Assignment by Chargor

The Chargor may not assign any of its rights or transfer any of its obligations under this Deed or enter into any transaction which would result in any of these rights or obligations passing to another person.

17 Release of Security

17.1 Release

Subject to Clause 17.3 (Discharge conditional), upon the expiry of the Security Period (but not otherwise) the Chargee shall at the request and cost of the Chargor, take whatever action is necessary to release the Charged Assets from the security constituted by this Deed.

17.2 Avoidance of payments and reinstatement

If any payment by the Chargor or any discharge given by the Chargee (whether in respect of the obligations of the Chargor or any security for those obligations or otherwise) is avoided or reduced in each case as a result of insolvency or any similar event:

17.2.1 the liability of the Chargor will continue as if the payment, discharge, avoidance or reduction had not occurred;

17.2.2 the Chargee will be entitled to recover the value or amount of that security or payment from the Chargor, as if the payment, discharge, avoidance or reduction had not occurred; and

17.2.3 the Chargee shall be entitled to enforce this Deed subsequently as if such payment, discharge, avoidance or reduction had not occurred.

17.3 Discharge conditional

Any release, discharge or settlement between the Chargor and the Chargee shall be deemed conditional upon no payment or security received by the Chargee in respect of the Secured Liabilities being avoided or reduced or ordered to be refunded pursuant to any provision of any enactment relating to insolvency, bankruptcy, winding-up, administration or receivership and, notwithstanding any such release, discharge or settlement:

17.3.1 the Chargee or its nominee shall be at liberty to retain this Deed and the security created by or pursuant to this Deed, including all certificates and documents relating to the Charged Assets or any part thereof, for such period as the Chargee shall deem necessary to provide the Chargee with security against any such avoidance or reduction or order for refund; and

17.3.2 the Chargee shall be entitled to recover the value or amount of such security or payment from the Chargor subsequently as if such settlement, discharge or release had not occurred and the Chargor agrees with the Chargee accordingly and charges the Charged Assets and the proceeds of sale thereof with any liability under this Clause, whether actual or contingent.

18 Governing law

This Deed is governed by, and shall be construed in accordance with, English law.

19 Enforcement

19.1 Jurisdiction of English courts

19.1.1 The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Deed) (a “Dispute”).

19.1.2 The parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no party will argue to the contrary.

19.1.3 This Clause 19.1 is for the benefit of the Chargee only. As a result, the Chargee shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Chargee may take concurrent proceedings in any number of jurisdictions.

20 Counterparts

This Deed may be executed in one or more counterparts all of which when taken together shall be deemed to constitute one and the same instrument.

In Witness whereof this Deed has been executed by the Chargor and is intended to be and is hereby delivered as a deed the day and year first above written and has been signed on behalf of the Chargee.

SCHEDULE 1

Part I

Form of irrevocable instruction to Securities Custodian

To: [Securities Custodian]
	[ ] 2008

Dear Sirs

We advise that we have created an equitable charge in favour of [Chargee] (the “Chargee”) over all shares in our securities account held with you with account name: [·] and account number [·] as are currently held on our behalf (the “Securities”).

We hereby irrevocably direct and authorise you to:

(a) transfer such Securities to an escrow balance in your CREST account for the Chargee or as it may direct and in the meantime to hold all such shares on trust for the Chargee;

(b) not transfer any such Securities to any person (including ourselves) or deal with them in any way, except as instructed in writing by the Chargee and we hereby irrevocably direct and authorise you to act in accordance with any such instructions from the Chargee.

These instructions may not be revoked or varied without the prior written consent of the Chargee. Could you please confirm to the Chargee in the attached form that you will act in accordance with the terms of this letter.

This letter shall be governed by English law.

Yours faithfully

By
for and on behalf of
Shining Prospect Pte. Ltd.

Part II

Form of acknowledgment from Securities Custodian

From:		[Securities Custodian]

To:		Alcoa, Inc.

		[ ] 2008

Dear Sirs

We refer to the letter from [Chargor] (the “Company”) to us dated [ ] 200[ ], a copy of which we attach (the “Letter”).

We hereby irrevocably undertake to you that we will act in accordance with the terms of the Letter, transfer all Securities (as defined in the Letter) in the securities account held with us with account name: [·] and account no: [·], currently held on behalf of the Company to an escrow balance in the CREST account we hold for it and in the meantime hold all such Securities on trust for you and to your order, unless you agree otherwise in writing.

We also hereby irrevocably undertake to you that we will hold all documentation (including share certificates) held by us in respect of any Securities on trust for you and to your order, unless you agree otherwise in writing.

This letter shall be governed by English law.

Yours faithfully


for and on behalf of
[Securities Custodian]

SCHEDULE 2

Form of CREST Securities letter

From:		Alcoa, Inc.

To:		Shining Prospect Pte. Ltd.

		[ ] 2008

Dear Sirs

We refer to the Security Agreement executed by you in our favour prior to our signing this letter under which you created a equitable charge in our favour over the Securities brief particulars of which are set out in the Schedule to this letter (the “Securities”).

By this letter, which is expressly contemplated by the Security Agreement and is to be taken as forming a single agreement with it, we instruct you to give or cause to be given, and you confirm that you shall forthwith give or cause to be given to Euroclear UK & Ireland Limited (CRESTCo) as Operator of the CREST system, all necessary instructions in accordance with CRESTCo’s specifications and requirements, and take or procure to be taken such action as shall be required to be taken, to ensure the settlement through CREST of transfers of all the Securities [from you to us/our nominee [ ] (participant ID [ ] and member account [ ]). It is acknowledged and agreed that the CREST transfer will bear the CREST transaction stamp status flag 5 which shall be entered by any party to the CREST transfer who is entitled to enter the same.

Pending the settlement in CREST of those transfers and registration of the transfers by the respective issuers of the Securities, by signing and returning this letter, you will thereby transfer and confirm the transfer to [us/[ ] Nominees Limited] of your entire interest in the Securities subject to the terms of the Security Agreement referred to above. We acknowledge that the interest and rights conferred upon [us/[ ] Nominees Limited] by such action in relation to the Securities concerned are held and exercisable by [us/[ ] Nominees Limited] subject to the terms of the membership agreement with CRESTCo.

It is hereby certified that the transfer of the Securities and of any interest in the Securities is transferred by way of security for a loan.

We enclose a duplicate of this letter for your files.

This letter shall be governed by English law.

Yours faithfully


for and on behalf of
Alcoa, Inc.

SIGNATORIES (TO CHARGE OVER SHARES)

The Chargor

Signed Sealed and Delivered by

SHINING PROSPECT PTE. LTD.

by its Attorney(s)

Wang Wenfu and Zhao Zhengang

as a deed in the presence of:

By /s/ WENFU WANG	By /s/ GILLIAN BARTON
Name: Wenfu Wang	Name: Gillian Barton
Title: Director	Title: Witness

By /s/ ZHAO ZHENGANG	By /s/ SHAOLIN LUO
Name: Zhao Zhengang	Name: Shaolin Luo
Title: Director	Title: Witness

The Chargee

EXECUTED as a DEED and

DELIVERED by

ALCOA, INC.

acting by:

/s/ ALAIN J.P. BELDA

acting under the authority of

that company, in the presence of:

Name of witness:	L.R. Purtell

Signature:	/s/ L.R. PURTELL

Address:	390 Park Avenue
	New York, NY 10022

Occupation:	Attorney

EX-99.13 14 a08-4773_1ex99d13.htm EX-99.13

Exhibit 99.13

LIMITED LIABILITY PARTNERSHIP

US$7,000,000,000

SENIOR SECURED FACILITY AGREEMENT

dated 3 February 2008

for

SHINING PROSPECT PTE. LTD.

as Borrower

arranged by

CHINA DEVELOPMENT BANK

with

CHINA DEVELOPMENT BANK

acting as Agent

and

CHINA DEVELOPMENT BANK

acting as Security Agent

SENIOR SECURED FACILITY AGREEMENT

EXECUTION VERSION

CONTENTS

Clause		Page

1.	Definitions and Interpretation	1

2.	The Facility	14

3.	Purpose	14

4.	Conditions of Utilisation	14

5.	Utilisation - Loans	16

6.	Repayment	17

7.	Prepayment and Cancellation	17

8.	Interest	21

9.	Interest Periods	22

10.	Changes to the Calculation of Interest	22

11.	Fees	23

12.	Tax gross up and indemnities	24

13.	Increased costs	26

14.	Other Indemnities	27

15.	Mitigation by the Lenders	29

16.	Costs and Expenses	29

17.	Representations	31

18.	Information Undertakings	33

19.	General Undertakings	36

20.	Events of Default	44

21.	Changes to the Lenders	48

22.	Changes to the Borrower	51

23.	Role of the Agent and the Arranger	52

24.	Conduct of Business by the Finance Parties	57

25.	Sharing among the Finance Parties	58

26.	Payment Mechanics	60

27.	Set-off	63

28.	Application of Proceeds	63

29.	Notices	64

30.	Calculations and Certificates	66

31.	Partial Invalidity	66

32.		Remedies and Waivers		66

33.		Amendments and Waivers		67

34.		Counterparts		68

35.		Governing Law		69

36.		Enforcement		69

	SCHEDULE 1 THE ORIGINAL PARTIES		70

	Part I The Borrower		70

	Part II The Original Lenders		71

	SCHEDULE 2 CONDITIONS PRECEDENT TO INITIAL UTILISATION		72

	SCHEDULE 3 REQUESTS		75

	SCHEDULE 4 FORM OF TRANSFER CERTIFICATE		76

	SCHEDULE 5 TIMETABLES		78

EXECUTION VERSION

THIS AGREEMENT is dated February 2008 and made between:

(1) SHINING PROSPECT PTE. LTD. (Company Registration Number 200801638R) (the “Borrower”);

(2) CHINA DEVELOPMENT BANK as mandated lead arranger (the “Arranger”);

(3) THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 (The Original Parties) as lenders (the “Original Lenders”);

(4) CHINA DEVELOPMENT BANK as agent of the other Finance Parties (the “Agent”); and

(5) CHINA DEVELOPMENT BANK as security agent for the Secured Parties (the “Security Agent”).

IT IS AGREED as follows:

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this Agreement:

“Acquisition” means the acquisition by the Borrower of shares in the Target by way of market purchases up to a maximum of 14.99% of the issued outstanding share capital of the Target.