PROGRAM AND BUDGET
FOR ANY CALENDAR YEAR THAT RESULTS IN AN INCREASE IN THE AGGREGATE OPERATING AND
CAPITAL EXPENDITURES UNDER THE PROGRAM AND BUDGET FOR THAT YEAR BY MORE THAN
15%;
(V)
ANY INCURRENCE BY MSC OR ANY OF ITS
SUBSIDIARIES OF INDEBTEDNESS IN ANY CALENDAR YEAR IN EXCESS OF 15% OF THE
AGGREGATE OPERATING AND CAPITAL EXPENDITURES UNDER THE PROGRAM AND BUDGET FOR
THAT YEAR, OTHER THAN INDEBTEDNESS INCURRED (A) PURSUANT TO THE FINANCING
DOCUMENTS, (B) TO NEW METALS OR SERVICE COMPANY IN RESPECT OF AMOUNTS PAYABLE BY
MSC UNDER THE MSC MANAGEMENT AGREEMENT OR THE NEW CONCENTRATE SALES AGREEMENT,
(C) TO ANY MEMBER OF THE APEX CONTROL GROUP OR SUMITOMO CONTROL GROUP PURSUANT
TO ARTICLE IV, (D) PURSUANT TO THE THEN APPLICABLE
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PROGRAM AND BUDGET, (E) PURSUANT TO THE APEX SWEDEN MSC SUBORDINATED NOTE AND
THE NEW SWEDEN 1 MSC SUBORDINATED NOTE, AND (F) PURSUANT TO THE MANDATORY METALS
HEDGE AGREEMENTS;
(VI)
ANY REQUEST FOR, MODIFICATION OF THE TERMS OF,
OR PREPAYMENT (OTHER THAN IN ACCORDANCE WITH DIVIDEND AND DISTRIBUTION POLICIES
SET FORTH IN SECTION 7.7) OF, ADDITIONAL FUNDS FROM THE SHAREHOLDERS IN THE FORM
OF SHAREHOLDER LOANS OR SHAREHOLDER CAPITAL CONTRIBUTIONS, OTHER THAN ANY
REQUEST FOR ADDITIONAL FUNDS (A) REQUIRED TO FUND ANY EXPENDITURE UNDER THE THEN
APPLICABLE PROGRAM AND BUDGET, (B) IN RESPECT OF ANY EXPENDITURE FOR WHICH
APPROVAL IS NOT REQUIRED OR, IF REQUIRED, HAS BEEN GIVEN UNDER SECTION
2.3(A)(I), SECTION 2.3(A)(II), SECTION 2.3(A)(III), OR SECTION 2.3(A)(IV), OR
(C) REQUIRED TO FUND ANY EXPENDITURE PERMITTED BY SECTION 3.5;
(VII)
ANY SALE OR PLEDGE OF ALL OR PART OF MSC'S
EQUITY INTERESTS IN ANY OF ITS SUBSIDIARIES, OR ANY FORMATION OF ANY SUBSIDIARY
OR THE ACQUISITION OF ANY PERSON, WHICH FOLLOWING SUCH ACQUISITION SHALL BE A
SUBSIDIARY OF MSC;
(VIII)
ANY LENDING OF MONEY, EXTENDING CREDIT, OR MAKING
ADVANCES TO ANY PERSON BY MSC OR ANY OF ITS SUBSIDIARIES (EACH, A "LOAN"), IN
EACH CASE OTHER THAN (A) LOANS FOR PREPAID EXPENSES, NEGOTIABLE INSTRUMENTS HELD
FOR COLLECTION, AND LEASE, UTILITY, WORKERS COMPENSATION, PERFORMANCE, AND OTHER
SIMILAR DEPOSITS AND BONDS MADE IN THE ORDINARY COURSE OF BUSINESS, (B) LOANS TO
EMPLOYEES, OFFICERS, AND DIRECTORS MADE IN THE ORDINARY COURSE OF BUSINESS,
(C) LOANS MADE TO CONTRACTORS OR SUBCONTRACTORS IN THE ORDINARY COURSE OF
BUSINESS IN CONNECTION WITH THE CONSTRUCTION OF THE PROJECT, (D) ACCOUNTS
RECEIVABLE AND COMMERCIALLY REASONABLE ADVANCES TO CUSTOMERS IN THE ORDINARY
COURSE OF BUSINESS AND EXTENSIONS OF TRADE CREDIT, (E) DEPOSITS AT BANKS AND
OTHER FINANCIAL INSTITUTIONS AND INVESTMENTS IN CASH EQUIVALENTS, (F) ONE OR
MORE OTHER LOANS, ALL MADE IN THE ORDINARY COURSE OF BUSINESS IN CONNECTION WITH
THE OPERATION OF THE PROJECT AND HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS
THAN US$10,000,000.00 AT ANY TIME OUTSTANDING, AND (G) LOANS MADE PURSUANT TO
THE THEN APPLICABLE PROGRAM AND BUDGET;
(IX)
ANY ACQUISITION OF ANY EQUITY INTEREST IN
ANY ENTITY, ANY ACQUISITION OF ALL OR SUBSTANTIALLY ALL THE ASSETS OF ANY
ENTITY, OR ANY ENTERING INTO ANY PARTNERSHIP, OR PROFIT SHARING AGREEMENT,