Exhibit
10.1


 


EXECUTION COPY


 


SECOND OMNIBUS AMENDMENT AGREEMENT


 


Among


 


MINERA SAN CRISTÓBAL, S.A.,


as Borrower




APEX SILVER MINES LIMITED,


 


APEX SILVER MINES SWEDEN AB,


 


APEX LUXEMBOURG S.A. R.L.,


 


APEX SILVER FINANCE LTD.,


 


APEX METALS MARKETING GmbH,


 


SUMITOMO CORPORATION,


 


SC MINERALS AKTIEBOLAG, 


 


COMERCIAL METALES BLANCOS AB,


 


BNP PARIBAS,


as Administrative Agent


 


BARCLAYS CAPITAL,


as Technical Agent


 


CORPORACIÓN ANDINA DE FOMENTO,


as a Senior Lender


 


JPMORGAN CHASE BANK, N.A.,


as Collateral Agent and Securities Intermediary,


 


THE SENIOR LENDERS PARTY HERETO


 


and


 


THE HEDGE BANKS PARTY HERETO


 


Dated as of September 4, 2007



















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I DEFINITIONS

  	
  2

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 1.01.

  	
  Defined Terms

  	
  2

  
	
   

  	
  Section 1.02.

  	
  Interpretation

  	
  2

  
	
   

  	
   

  	
   

  
	
  ARTICLE II REPRESENTATIONS AND WARRANTIES

  	
  3

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 2.01.

  	
  Organization

  	
  3

  
	
   

  	
  Section 2.02.

  	
  Authority

  	
  3

  
	
   

  	
  Section 2.03.

  	
  Binding Agreements; Proper Legal
  Form

  	
  3

  
	
   

  	
  Section 2.04.

  	
  Consents and Approvals

  	
  4

  
	
   

  	
  Section 2.05.

  	
  No Conflicts

  	
  4

  
	
   

  	
   

  	
   

  
	
  ARTICLE III SECURED PARTY CONSENTS AND
  APPROVALS

  	
  4

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 3.01.

  	
  Consents and Approvals

  	
  4

  
	
   

  	
  Section 3.02.

  	
  Put Options

  	
  5

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV AMENDMENTS

  	
  5

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 4.01.

  	
  Common Security Agreement

  	
  5

  
	
   

  	
  Section 4.02.

  	
  Commercial Bank Senior Loan
  Agreement

  	
  8

  
	
   

  	
  Section 4.03.

  	
  CAF Senior Loan Agreement

  	
  9

  
	
   

  	
  Section 4.04.

  	
  Sumitomo Pledge and Guarantee
  Agreement

  	
  9

  
	
   

  	
  Section 4.05.

  	
  Sponsor Pledge Agreement

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE V CONDITIONS PRECEDENT

  	
  10

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 5.01.

  	
  Conditions Precedent

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI MISCELLANEOUS

  	
  12

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 6.01.

  	
  Expenses

  	
  12

  
	
   

  	
  Section 6.02.

  	
  Counterparts

  	
  12

  
	
   

  	
  Section 6.03.

  	
  Severability

  	
  12

  
	
   

  	
  Section 6.04.

  	
  Governing Law

  	
  12

  
	
   

  	
  Section 6.05.

  	
  Headings

  	
  12

  
	
   

  	
  Section 6.06.

  	
  Waivers; Amendment

  	
  12

  
	
   

  	
  Section 6.07.

  	
  Limited Agreement

  	
  12

  
	
   

  	
  Section 6.08.

  	
  Authorizations

  	
  13

  



 


i

















 


	
  APPENDIX A-1, A-2

  	
  -

  	
  Form
  of Sumitomo Hedge Guarantee

  
	
  APPENDIX B-1, B-2

  	
   

  	
  Form
  of Cash Collateral Agreement

  
	
  APPENDIX C

  	
   

  	
  Content
  of Bolivia Opinion

  
	
  APPENDIX D

  	
  -

  	
  Content
  of Cayman Opinion

  
	
  APPENDIX E-1, E-2

  	
  -

  	
  Content
  of Japan and New York Opinions (re Sumitomo)

  
	
  APPENDIX F

  	
  -

  	
  Content
  of New York Opinion

  
	
   

  	
   

  	
   

  
	
  EXHIBIT 1

  	
  -

  	
  Request
  Letter with 2007 Updated Construction Budget,

  
	
   

  	
   

  	
  Operating Plan and
  Financial Model

  
	
  EXHIBIT 2

  	
  -

  	
  Minimum
  Insurance Requirements Changes

  



 


ii

















 


This SECOND  OMNIBUS AMENDMENT AGREEMENT (this “Agreement”), dated
as of September 4, 2007, is entered into among MINERA SAN
CRISTÓBAL, S.A., a sociedad anónima
organized under the laws of Bolivia (the “Borrower”), APEX SILVER MINES LIMITED, an exempted company duly
incorporated with limited liability and validly existing under the laws of the
Cayman Islands (“ASM”),  APEX SILVER MINES SWEDEN AB, a privat aktiebolag organized under the laws of Sweden (“Apex
Sweden”), APEX LUXEMBOURG S.A. R.L., a société à responsabilité limitée organized under the laws of
Luxembourg (“Apex Luxembourg”), APEX SILVER FINANCE LTD.,
an exempted company duly incorporated with limited liability and validly
existing under the laws of the Cayman Islands (“Apex Silver Finance”), APEX METALS MARKETING GmbH, a company with limited liability
organized under the laws of Switzerland (“Apex Metals Marketing”), SUMITOMO CORPORATION, a corporation organized under the laws
of Japan (“Sumitomo”), SC MINERALS AKTIEBOLAG, a
privat aktiebolag organized under the laws of Sweden (“SC Minerals Sweden”),
COMERCIAL METALES BLANCOS AB, a
privat aktiebolag organized under the laws of Sweden (“Comercial Metales
Blancos”), BNP PARIBAS, a banking institution
organized under the laws of France, as Administrative Agent for the Secured
Parties (the “Administrative Agent”), BARCLAYS
CAPITAL, a division of Barclays Bank PLC, a public limited company
organized under the laws of England and Wales, as Technical Agent (the “Technical
Agent”), CORPORACIÓN ANDINA DE FOMENTO, a
multilateral institution organized and existing pursuant to its Constitutive
Agreement signed in Bogotá, Colombia on February 7, 1968, as a Senior Lender, JPMORGAN CHASE BANK, N.A., a national banking corporation as
Collateral Agent (the “Collateral Agent”) and as Securities Intermediary
(the “Securities Intermediary”), the SENIOR
LENDERS party hereto and the HEDGE BANKS
party hereto.


 


RECITALS


 


WHEREAS, the Borrower, Apex Sweden, Apex Metals
Marketing, Apex Luxembourg, Apex Silver Finance, SC Minerals Sweden, Comercial
Metales Blancos, the Administrative Agent, the Technical Agent, Corporación
Andina de Fomento, the Collateral Agent, the Securities Intermediary, the
Senior Lenders party thereto and the Hedge Banks party thereto are parties to
the Common Security Agreement, dated as of December 1, 2005 (as amended and
supplemented from time to time, the “Common Security Agreement”);


 


WHEREAS, pursuant to the Common Security Agreement
and the other Transaction Documents, the Borrower and the other parties thereto
agreed, among other things, to the terms and conditions for the financing of
the Project;


 


WHEREAS, pursuant to the letters dated June 22, 2007
from the Borrower to the Technical Agent and the Administrative Agent (the “Request
Letter”), annexed hereto as Exhibit 1, the Borrower has requested from
the Secured Parties approval to (a) allow the Borrower to enter into certain
additional hedge agreements; (b) allow ASM and Sumitomo to grant certain
collateral to the Hedge Banks; (c) change the amortization schedules of the
Senior Loans; (d) increase the amount of Cash Sweep Prepayments; (e) use an
updated Operating Plan


 

















 


that is different from the
Initial Operating Plan as contemplated by Section 8.14 of the Common
Security Agreement; and (f) change the price deck contained in the Financial
Model, and to make certain other changes to certain Transaction Documents; 


 


WHEREAS, the Secured Parties are willing to approve
such transactions and changes upon the terms and conditions set forth herein;


 


NOW, THEREFORE, in consideration of the mutual
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:


 


ARTICLE I


 


DEFINITIONS


 


Section 1.01.                             Defined
Terms.  Except as otherwise defined
herein, capitalized terms used in this Agreement shall have the meanings given
thereto in the Common Security Agreement (including Appendix A thereto).  As used in this Agreement, the following
terms have the meanings specified below:


 


“Additional Permitted Hedge Transactions”
means the put options acquired by the Borrower pursuant to Section 5.01(c)(i).


 


“Amendment Documents” means each of this
Agreement, the Sumitomo Hedge Guarantees and the ASM Cash Collateral
Agreements.


 


“Amendment Effective Date” has the meaning
given to that term in Section 5.01.


 


“ASM Cash Collateral Agreements” means the
Cash Collateral Agreement between ASM and BNP Paribas entered into pursuant to
Section 5.01(b)(ii) and the Cash Collateral Agreement between ASM and Barclays
Bank PLC entered into pursuant to Section 5.01(b)(ii).


 


“Sumitomo Hedge Guarantees” means each of the
Sumitomo Hedge Guarantees between Sumitomo and a Hedge Bank entered into
pursuant to Section 5.01(b)(i).


 


Section 1.02.                             Interpretation.  The rules of interpretation set forth in
clauses (a) to (j) of Section 1.02 of the Common Security Agreement shall
apply, with necessary changes, to this Agreement as if set forth in full in
this Section 1.02.  


 


2

















 


ARTICLE II


 


REPRESENTATIONS AND WARRANTIES


 


Each
of the Borrower, ASM, Apex Sweden, Apex Luxembourg, Apex Silver Finance, Apex
Metals Marketing, Sumitomo, SC Minerals Sweden and Comercial Metales Blancos
represents and warrants to the Administrative Agent and the Collateral Agent
for the benefit of the Secured Parties that:


 


Section 2.01.                             Organization.  It (a) is organized and validly existing
and in good standing under the law of the jurisdiction of its incorporation;
(b) has all requisite organizational power and authority under the law of
the jurisdiction of its formation to own its property and to carry on its
business; and (c) is duly qualified to do business in and is in good
standing in all other jurisdictions where necessary in light of the business it
conducts and the property it owns and intends to conduct and own and in light
of the transactions contemplated by this Agreement and the other Amendment Documents
and Transaction Documents to which it is a party, except where the failure to
qualify could not reasonably be expected to have a Material Adverse
Effect.  


 


Section 2.02.                             Authority.  It has all requisite organizational power and
authority to enter into each Amendment Document to which it is a party and to
incur and perform its obligations provided for herein and therein and to grant
the Secured Parties the security interests and Liens described in the Security
Documents to which it is a party.


 


Section 2.03.                             Binding
Agreements; Proper Legal Form.


 


(a)                                  Each Amendment Document to which it is a
party which has been executed and delivered by it on or prior to the date
hereof, has been duly authorized, executed and delivered by it and constitutes
its legal, valid and binding obligation enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles.


 


(b)                                 Each Amendment Document to which it is a
party is in proper legal form under the law of the jurisdiction of its
incorporation for the enforcement thereof against it under such law, and if
this Agreement were stated to be governed by such law, it would constitute the
legal, valid and binding obligation of it under such law, enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights and to general equity principles;
and to ensure the legality, validity, enforceability or admissibility in
evidence of this Agreement in the jurisdiction of its incorporation, it is not
necessary that this Agreement or any other document be filed or recorded with
any court or other authority in such jurisdiction or that any stamp or similar
tax be paid in such jurisdiction on or in respect of this Agreement, except as
specifically provided in the legal opinions delivered in satisfaction of the
conditions precedent referred to in clause (f) of Section 5.01.  The laws of the jurisdiction of its


 


3

















 


incorporation do not provide for or require any filing, recording or registration
of a security interest in any of the Pledged Collateral as a condition of
obtaining priority over a creditor that has acquired a Lien thereon or over a
receiver in bankruptcy.


 


Section 2.04.                             Consents
and Approvals.  All Authorizations
and Government Approvals which are necessary for (i) the execution and
delivery by it of this Agreement and the other Amendment Documents to which it
is a party and (ii) the performance of its obligations hereunder and
thereunder have been obtained and are in full force and effect, and no other
action by, and no notice to or filing with, any Governmental Authority or other
Person is required for such execution, delivery or performance or
enforceability, except as specifically provided in the legal opinions delivered
in satisfaction of the conditions precedent referred to in clause (f) of
Section 5.01; and all fees and taxes required for the legality or
enforceability of such documents have been paid.


 


Section 2.05.                             No
Conflicts.  The execution, delivery
and performance by it of each of the Amendment Documents to which it is a party
and the consummation of the transactions contemplated thereby do not and will
not (i) violate any provision of its Organizational Documents, any
Authorization, any Government Rule or any Government Approval applicable to it;
(ii) conflict with, result in a breach of or constitute a default under
any indenture or loan or credit agreement to which it is a party or by which it
or its property may be bound or affected in any material respect; or
(iii) result in, or create any Lien (other than Liens specifically
permitted under the Financing Documents or the Amendment Documents) upon or
with respect to any of the properties now owned or hereafter acquired by it.


 


ARTICLE III


 


SECURED PARTY CONSENTS AND APPROVALS


 


Section 3.01.                             Consents
and Approvals.  Subject to the
satisfaction on or prior to the date 45 days after the date of this Agreement
of each of the conditions precedent specified in Section 5.01 below, but
effective as of the Amendment Effective Date:


 


(a)                                  2007
Updated Budget, Plan and Financial Model. 
The Secured Parties and Technical Agent (i) approve the 2007 Updated
Construction Budget, the 2007 Updated Operating Plan and the 2007 Updated
Financial Model submitted with the Request Letter, annexed hereto in
Exhibit 1, and (ii) for all purposes contemplated in
Section 8.14(a)(i)(B) of the Common Security Agreement, approve the
revised assumptions with respect to the prices of Metals as are set out in the
Request Letter.


 


(b)                                 Amendments.  The Secured Parties consent to the amendments
set forth in Article IV.


 


(c)                                  Insurance.  The Secured Parties consent to the changes to
the Schedule of Minimum Insurance Requirements annexed hereto as
Exhibit 2.


 


4

















 


Section 3.02.                             Put
Options.  Subject only to execution
of this Agreement by the parties named on signature pages hereof, the Secured
Parties consent (effective as of the date hereof ) to the purchase by the
Borrower of the put options described in Section 5.01(c)(i) of this
Agreement provided that an amount equal to the full purchase price of
such options has been substantially contemporaneously
paid to the Borrower by the Sponsors.


 


ARTICLE IV


 


AMENDMENTS


 


Section 4.01.                             Common
Security Agreement.  The provisions
of the Common Security Agreement shall be amended, effective as provided in
Article III above, as follows:


 


(a)                                  Section 3.02(g) shall be amended to read as
follows:


 


“(g)                           Mandatory Metals Hedge
Transactions.  As security for the Secured Debt Obligations,
the Borrower hereby pledges and grants to the Collateral Agent for the benefit
of the Secured Parties a security interest in all right, title and interest
which the Borrower has or which shall hereafter arise in and to the Mandatory
Metals Hedge Agreements and all of the Mandatory Metals Hedge Transactions
outstanding thereunder at any time and all claims resulting from any failure or
performance or compliance with any of the provisions of any of the Mandatory
Metals Hedge Agreements, together with full power and authority to enforce each
Mandatory Metals Hedge Agreement to which the Borrower is a party against the
counterparties thereto.  Concurrently
with or promptly after entering into a Mandatory Metals Hedge Agreement and any
Mandatory Metals Hedge Transaction, the Borrower shall give or cause to be
given written notice to the counterparties thereto of the security interest
therein granted hereby.”;


 


(b)                                 Section 8.23 shall be amended by adding the
words “other than the Additional Permitted Hedge Transactions” after the word “Instruments”;


 


(c)                                  Section 9.02(a)(i) shall be amended by
replacing the percentage “35%” with the percentage “45%”; 


 


(d)                                 Section 10.04(b) shall be amended to read as
follows: 


 


“(b)                           SECOND, to the payment of the whole amount
outstanding of Secured Debt Obligations (whether accelerated or otherwise); and
in the event such moneys shall not be sufficient to pay in full the whole
amount so due and unpaid, then to make payments first
on a pro rata basis to each Person entitled to receive such payments based on
(a) in the case of payments to Senior Lenders, the proportion that the
outstanding Senior Loan Obligations bears to sum of (i) the Senior Loan
Obligations and (ii) the Adjusted Guaranteed Apex Silver Finance
Obligations (provided that in such case any Person may apply funds received by
it to Senior


 


5

















 


Loan Obligations held by it in any order it chooses) and (b) in
the case of payments to Hedge Banks, the proportion that the Adjusted
Guaranteed Apex Silver Finance Obligations bears to such sum, and second, after the Senior Loan
Obligations are paid in full, on a pro rata basis to each Person entitled to
receive such payments based on such Person’s pro rata share of any Secured Debt
Obligations remaining outstanding after the application in clause first of this paragraph SECOND;”;


 


(e)                                  Section 14.08(a)(vii) shall be amended to
read as follows:


 


“(vii)                     any payment made to a Hedge Bank in respect
of Mandatory Metals Hedge Transactions where such payment is (A) effected by
such Hedge Bank netting amounts payable by such Hedge Bank under Mandatory
Metals Hedge Transactions against amounts payable to such Hedge Bank in respect
of Mandatory Metals Hedge Transactions (whether in the ordinary course or upon
the occurrence of an “Early Termination Date” with respect thereto) or (B) an
Additional Collateral Payment; and”;


 


(f)                                    Section 14.09 shall be amended to read as
follows:


 


“14.09  No Separate Security.  Each Secured Party that is a party to
this Agreement (for itself and any Person claiming through it):  (a) agrees that, except as otherwise
provided herein, all Collateral (other than Additional Hedge Collateral) is for
the joint benefit of all the Secured Parties (subject to the priority among the
Secured Parties set out herein); and (b) represents and warrants to each
other Secured Party that, in respect of any Secured Debt Obligations now or
hereafter owing to such Secured Party (other than an Agent), it has received no
security or guarantees from the Borrower or any Affiliate thereof, other than
(i) its interest in the Collateral as provided in the Security Documents,
if any, (ii) in the case of the Hedge Banks, the Additional Hedge Collateral or
(iii) as otherwise provided pursuant to the Financing Documents.  In furtherance of the foregoing, if any
Secured Party (other  than an Agent)
shall receive or be entitled to demand or otherwise call upon any guaranty, security
or other assurance of payment which is not described in clause (i), (ii) or
(iii) of the preceding sentence in respect of the Secured Debt Obligations owed
to such Secured Party, such Secured Party shall receive any proceeds thereof in
trust for all the Secured Parties (to be shared promptly and ratably (subject
to the priority provisions among the Secured Parties established herein) with
the other Secured Parties) and shall exercise its rights to demand or call upon
such guaranty, security or other assurance of payment as directed by the
Majority Secured Parties.”;


 


(g)                                 the definition of “Financing
Documents” in Appendix A thereto shall be amended to read: “means
the Security Documents, the Completion Agreement, the Transfer Restrictions
Agreement, the Hedge Guaranty, each Senior Loan Agreement,


 


6

















 


each Note, each PRI Policy, the Fee Letters, each of the Sumitomo
Documents, each Reorganization Document and each Amendment Document.”;


 


(h)                                 “the definition of “Hedge
Guaranty” in Appendix A thereto shall be amended by replacing “Apex
Metals” with “Apex Silver Finance”;


 


(i)                                     the definition of “Mandatory
Metals Hedge Agreements” in Appendix A thereto shall be amended
to read: “means the ISDA Master Agreement, schedule, credit support annex and
confirmations executed by a Hedge Bank and Apex Silver Finance, and the ISDA
Master Agreement, schedule and confirmations executed and delivered by the
Borrower and the hedge provider counterparty thereto with respect to the
Additional Permitted Hedge Transactions, in each case under which such Persons
execute Mandatory Metals Hedge Transactions.”;


 


(j)                                     the definition of “Mandatory
Metals Hedge Transactions” in Appendix A thereto shall be amended by
inserting the words”, any Additional Permitted Hedge Transactions” after the
words “IDD Mandatory Metals Hedge Transactions”;


 


(k)                                  the definition of “Project
Funds” in Appendix A thereto shall be amended by inserting the
words “or the Borrower” after the words “Apex Silver Finance” in
clause (i) of such definition;


 


(l)                                     the definition of “Security
Documents” in Appendix A thereto shall be amended to read: “means
this Agreement, the Cross-Guarantee and Security Agreement, Counterparty’s
Consent, AM Counterparty’s Consent, the Sponsor Pledge Agreement, the ASC
Bolivia Pledge Agreement, the Swiss Pledge Agreement, the Chilean Conditional
Assignment and each other security agreement, document, assignment, mortgage,
charge, pledge, fiduciary assignment, power of attorney, sub-powers of
attorney, and other documents signed or filed (or to be signed and filed) by
the Borrower, Apex Sweden, Apex Metals Marketing, Apex Silver Finance, ASC
Bolivia, the Sponsor or Apex Luxembourg or any other Person in order or
purporting to create, preserve, continue, perfect or validate any security
interest in any property of any such Person required or contemplated by this
Agreement, the Omnibus Amendment Agreement or the Second Omnibus Amendment
Agreement; provided that the Sumitomo Hedge Guarantees and the ASM Cash
Collateral Agreements shall not be Security Documents.”;


 


(m)                               the following additional defined terms shall
be inserted in Appendix A thereto:


 


“Additional Collateral Payment” means any
payment made to a Hedge Bank under an ASM Cash Collateral Agreement or a
Sumitomo Hedge Guarantee.”


 


“Additional Hedge Collateral” means on
any date (i) the then-remaining amount of unapplied and unreleased cash
collateral provided by


 


7

















 


ASM pursuant to the ASM Cash Collateral Agreements and (ii) the
then-remaining effective principal amount of the guarantees provided by
Sumitomo under the Sumitomo Hedge Guarantees.


 


“Additional Permitted Hedge Transactions”
has the meaning assigned to such term in the Second Omnibus Amendment
Agreement.


 


“Adjusted Guaranteed Apex Silver Finance Obligations”
means, with respect to any Hedge Bank on any date of determination, (i) if any
Senior Loan Obligations are outstanding on such date, the Guaranteed Apex
Silver Finance Obligations owed to such Hedge Bank on such date minus
the amount of such Hedge Bank’s share of the Additional Hedge Collateral on
such date or (ii) if no Senior Loan Obligations are outstanding on such date,
the Guaranteed Apex Silver Finance Obligations owed to such Hedge Bank on such
date.


 


“Amendment Documents” has the meaning
assigned to such term in the Second Omnibus Amendment Agreement.


 


“ASM  Cash Collateral Agreements”
has the meaning assigned to such term in the Second Omnibus Amendment
Agreement.


 


“Reorganization Documents” has the
meaning assigned to such term in the Omnibus Amendment Agreement.


 


 “Second
Omnibus Amendment Agreement” means the Second Omnibus Amendment
Agreement dated as of September 4, 2007 among the parties hereto.


 


“Sumitomo Hedge Guarantees” has the
meaning assigned to such term in the Second Omnibus Amendment Agreement.


 


Section 4.02.                             Commercial
Bank Senior Loan Agreement.  The
provisions of the Commercial Bank Senior Loan Agreement shall be amended by
replacing the amortization schedule in Exhibit B thereto with the following
amortization schedule:


 


8

















 


	
  Principal

  Repayment Date

  (Quarterly Date

  falling in the

  specified months)

  	
   

  	
  % of Original Principal

  Amount

  to be Repaid

  	
   

  
	
  December 2008

  	
   

  	
  14.50

  	
  %

  
	
  June 2009

  	
   

  	
  19.50

  	
  %

  
	
  December 2009

  	
   

  	
  17.50

  	
  %

  
	
  June 2010

  	
   

  	
  13.00

  	
  %

  
	
  December 2010

  	
   

  	
  10.00

  	
  %

  
	
  June 2011

  	
   

  	
  8.50

  	
  %

  
	
  December 2011

  	
   

  	
  7.00

  	
  %

  
	
  June 2012

  	
   

  	
  6.50

  	
  %

  
	
  December 2012

  	
   

  	
  3.50

  	
  %

  



 


Section 4.03.                             CAF
Senior Loan Agreement.  The
provisions of the CAF Senior Loan Agreement 
shall be amended by replacing the amortization schedule in Exhibit B
thereto with the following amortization schedule:


 


	
  Principal

  Repayment Date

  (Quarterly Date

  falling in the

  specified months)

  	
   

  	
  % of Original Principal

  Amount

  to be Repaid

  	
   

  
	
  December 2008

  	
   

  	
  14.50

  	
  %

  
	
  June 2009

  	
   

  	
  19.50

  	
  %

  
	
  December 2009

  	
   

  	
  17.50

  	
  %

  
	
  June 2010

  	
   

  	
  13.00

  	
  %

  
	
  December 2010

  	
   

  	
  10.00

  	
  %

  
	
  June 2011

  	
   

  	
  8.50

  	
  %

  
	
  December 2011

  	
   

  	
  7.00

  	
  %

  
	
  June 2012

  	
   

  	
  6.50

  	
  %

  
	
  December 2012

  	
   

  	
  3.50

  	
  %

  



 


Section 4.04.                             Sumitomo
Pledge and Guarantee Agreement.  The
provisions of the Sumitomo Pledge and Guarantee Agreement shall be amended as follows:


 


(a)                                  Section 6.01(a) shall be amended by inserting
the words “or the Sumitomo Hedge Guarantees” after the word “Agreement”;


 


(b)                                 Section 6.01(c)(ii) shall be amended by
inserting the words “or the Sumitomo Hedge Guarantees” after the words “this Agreement”
in the first line thereof; and


 


(c)                                  Section 6.01(f) shall be amended by adding
the words “, the Sumitomo Hedge Guarantees” after each occurrence of the words “Sumitomo
Transfer Restrictions Agreement”.


 


Section 4.05.                             Sponsor
Pledge Agreement.  The provisions of
the Sponsor Pledge Agreement shall be amended as follows:


 


9

















 


(a)                                  clause (c)
of the definition of Sponsor Permitted Liens shall be amended by adding at the
end thereof the following:


 


“, and
Liens on cash collateral pledged to the Hedge Banks pursuant to the ASM Cash
Collateral Agreements”; and


 


(b)                                 Section 4.12(a)
shall be amended by inserting the words “or the Additional Permitted Hedge
Transactions” after the words “Hedge Guaranty” in clause (i) thereof.


 


ARTICLE V



CONDITIONS PRECEDENT


 


Section 5.01.                             Conditions
Precedent.  The provisions of
Articles III and IV of this Agreement shall become effective on the date on
which all of the following conditions precedent have been satisfied in form and
substance acceptable to (or shall have been waived by) each Secured Party (the “Amendment
Effective Date”), provided that such conditions are satisfied or
waived on or prior to the date 45 days after the date of this Agreement:


 


(a)                                  Authorizations.  The
Administrative Agent and the Collateral Agent shall have received
(i) certified copies of Authorizations with respect to ASM, Apex
Luxembourg, Apex Sweden, Apex Metals Marketing, Apex Silver Finance, SC
Minerals Sweden, Comercial Metales Blancos and the Borrower given to authorize
the execution, delivery and performance by it of each Amendment Document to
which it is a party, and (ii) a certificate of an Authorized Officer of
Sumitomo certifying Sumitomo has duly approved and ratified pursuant to its
internal regulations the execution, delivery and performance by it of each
Amendment Document to which it is a party.


 


(b)                                 Ancillary Agreements.


 


(i)             Sumitomo shall have executed and delivered to
the Hedge Banks the Sumitomo Hedge Guarantees substantially in the forms of
Appendix A-1 and Appendix A-2 hereto; and


 


(ii)          ASM shall have executed and delivered to the
Hedge Banks the ASM Cash Collateral Agreements substantially in the forms of
Appendix B-1 and Appendix B-2 hereto;


 


(c)                                  Additional Permitted Hedge Transactions.  The
Administrative Agent shall have received evidence satisfactory to it that the
Borrower has:


 


(i)             acquired put options in sufficient amounts so
that the projected Historical Debt Service Coverage Ratio as reflected in the
2007 Updated Financial Model will be a minimum of 1.7x for each future
principal repayment date;


 


10

















 


(ii)          acquired such options either from the Hedge
Banks, from a Senior Lender, or from any other Person having a credit rating in
respect of its long term unsecured and un-credit enhanced Dollar-denominated
indebtedness of at least A from Standard & Poor’s and A2 from Moody’s
Investor Service;


 


(iii)       pledged and assigned such options to the
Collateral Agent for the benefit of the Secured Parties and obtained
appropriate consents and agreements by the counterparties to such options to
pay amounts due under such options directly to the Collateral Agent; and


 


(iv)      fully paid for such options and received an
amount equal to the full price of such options from the Sponsors on or prior to
the date of the Borrower’s purchase of such options.


 


(d)                                 Consent of PRI Insurers.  The
Administrative Agent shall have received from or on behalf of the PRI Insurers
a consent to this Second Omnibus Amendment Agreement and the relevant
transactions contemplated hereby, in form and substance acceptable to the
Administrative Agent.


 


(e)                                  Payment of Fees.  The
Borrower shall have paid (i) to the Administrative Agent, for the benefit of
the Senior Lenders and the Mandated Lead Arrangers, the amendment fees agreed
in the fee letters dated as of the date hereof from the Administrative Agent to
the Borrower and (ii) to the Administrative Agent and the Collateral Agent, all
invoiced fees and expenses (including reasonable fees and disbursements of
counsel to the Administrative Agent and the Collateral Agent) in respect of the
transactions contemplated by this Agreement.


 


(f)                                    Legal Opinions.  The
Administrative Agent and the Collateral Agent shall have received the following
legal opinions dated as of the Amendment Effective Date, in form and content
satisfactory to them, and addressed to the Administrative Agent, the Collateral
Agent, each Senior Lender and each Hedge Bank:


 


(i)             The opinion of Quintanilla and Soria Abogados,
Bolivian counsel to the Borrower, covering the matters specified in
Appendix C hereto.


 


(ii)          The opinion of Walkers, special Cayman
Islands counsel to ASM, covering the matters specified in Appendix D hereto;


 


(iii)       The opinions of Ito & Mitomi, special
Japanese counsel to Sumitomo, covering the matters specified in
Appendix E-1 hereto, and of Morrison & Foerster LLP, special counsel
to Sumitomo, covering the matters specified in Appendix E-2 hereto; and


 


(iv)      The opinion of Davis Graham & Stubbs LLP,
special New York counsel to the Borrower, covering the matters specified in
Appendix F hereto.


 


11
















 


(g)                                 Hedge Cash Collateral. The Hedge Banks shall have advised the
Administrative Agent that ASM has deposited all cash collateral amounts
required to be deposited under the ASM Cash Collateral Agreements.


 


ARTICLE VI



MISCELLANEOUS


 


Section
6.01.                             Expenses.
The Borrower shall pay any and all out-of-pocket expenses, fees, charges,
disbursements and any other costs incurred by the each Agent, each Senior
Lender, each Hedge Bank (including the reasonable fees of counsel to the
Administrative Agent and to the Collateral Agent) in connection with the
negotiation, execution and delivery of this Agreement and the transactions
contemplated hereby, which costs shall be paid in full in cash promptly upon
demand in accordance with Section 15.14 of the Common Security Agreement.


 


Section
6.02.                             Counterparts.
This Agreement may be executed in any number of counterparts and by different
parties hereto on separate counterparts, each of which shall constitute an
original, but all of which when taken together shall constitute one and the
same instrument. Delivery of an executed counterpart of a signature page to
this Agreement by fax shall be effective as delivery of a manually executed
counterpart of this Agreement.


 


Section
6.03.                             Severability.
Any provision of this Agreement held to be invalid, illegal or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such invalidity, illegality or unenforceability without affecting the
validity, legality and enforceability of the remaining provisions hereof; and
the invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.


 


Section 6.04.                             Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.


 


Section
6.05.                             Headings.
Article and Section headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement and shall not
affect the construction of, or be taken into consideration in interpreting,
this Agreement.


 


Section
6.06.                             Waivers;
Amendment. None of the terms or provisions of this Agreement may be waived,
amended, supplemented or otherwise modified without the consent of each of the
parties hereto.


 


Section
6.07.                             Limited
Agreement. The amendments, waivers and consents set forth in this Agreement
are limited in effect, shall apply only as expressly set forth herein and shall
not constitute or be deemed to be an amendment or waiver of any other provision
of, or a consent to any action limited by, any Financing Document, each of
which shall remain in full force and effect and are hereby ratified and
confirmed in all respects.


 


12

















 


Section
6.08.                             Authorizations.
Each of the Senior Lenders and Hedge Banks hereby authorizes the Administrative
Agent, the Collateral Agent and the Technical Agent to execute and deliver this
Agreement and each of the agreements in the forms attached hereto to which they
are required to be a party.


 


[The remainder of this page intentionally left blank]


 


13

















 


IN WITNESS WHEREOF, the parties hereto have caused
this Second Omnibus Amendment Agreement to be duly executed by their respective
authorized officers as of the day and year first above written.


 


	
   

  	
  MINERA SAN CRISTÓBAL, S.A.

  
	
   

  	
  By:

  	
       /s/
  Gerald Malys

  	
   

  
	
   

  	
   

  	
  Name: Gerald Malys

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  APEX SILVER MINES LIMITED

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/
  Gerald Malys

  	
   

  
	
   

  	
   

  	
  Name: Gerald Malys

  
	
   

  	
   

  	
  Title: Senior Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  APEX SILVER MINES SWEDEN
  AB

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/
  Donald Ratcliff

  	
   

  
	
   

  	
   

  	
  Name: Donald Ratcliff

  
	
   

  	
   

  	
  Title: Director

  



 

















 


	
   

  	
  APEX LUXEMBOURG S.A. R.L.

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/
  Donald Ratcliff

  	
   

  
	
   

  	
   

  	
  Name:  Donald Ratcliff

  
	
   

  	
   

  	
  Title:  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  APEX SILVER FINANCE LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/
  Donald Ratcliff

  	
   

  
	
   

  	
   

  	
  Name:  Donald Ratcliff

  
	
   

  	
   

  	
  Title:  Vice President

  



 


2

















 


	
   

  	
  APEX METALS MARKETING GmbH

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/
  Donald Ratcliff

  	
   

  
	
   

  	
   

  	
  Name:  Donald Ratcliff

  
	
   

  	
   

  	
  Title:  Managing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SUMITOMO CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  Mitsuhiko Yamada

  	
   

  
	
   

  	
   

  	
  Name:  Mitsuhiko Yamada

  
	
   

  	
   

  	
  Title:  Executive Officer and General Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SC MINERALS AKTIEBOLAG

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  Mitsuhiko Yamada

  	
   

  
	
   

  	
   

  	
  Name:  Mitsuhiko Yamada

  
	
   

  	
   

  	
  Title:  Director and Chairman of the board

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  COMERCIAL METALES BLANCOS
  AB

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  Akira Takeuchi

  	
   

  
	
   

  	
   

  	
  Name:  Akira Takeuchi

  
	
   

  	
   

  	
  Title:  Director and Chairman of the board

  



 


3

















 


	
   

  	
  BNP PARIBAS
        as
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  Manoj Khatri

  	
   

  
	
   

  	
   

  	
  Name:  Manoj Khatri

  
	
   

  	
   

  	
  Title:  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  Jeffrey Stufsky

  	
   

  
	
   

  	
   

  	
  Name:  Jeffrey Stufsky

  
	
   

  	
   

  	
  Title:  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BARCLAYS CAPITAL
        as Technical
  Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  Giles Taylor

  	
   

  
	
   

  	
   

  	
  Name:  Giles Taylor

  
	
   

  	
   

  	
  Title:  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
   

  	
  as Collateral Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  Marina Nuñez

  	
   

  
	
   

  	
   

  	
  Name:  Marina Nuñez

  
	
   

  	
   

  	
  Title:  Assistant Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
   

  	
  as Securities Intermediary

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  Marina Nuñez

  	
   

  
	
   

  	
   

  	
  Name:  Marina Nuñez

  
	
   

  	
   

  	
  Title:  Assistant Vice President

  
					



 


4

















 


	
   

  	
  CORPORACIÓN ANDINA DE FOMENTO,
        as a Senior
  Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  Luis Enrique Berrizbeitia

  	
   

  
	
   

  	
   

  	
  Name:  Luis Enrique Berrizbeitia

  
	
   

  	
   

  	
  Title:  Presidente Ejecutivo Enc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BARCLAYS BANK PLC,
        as a Senior
  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  Allan Pouer

  	
   

  
	
   

  	
   

  	
  Name:  Allan Pouer

  
	
   

  	
   

  	
  Title:  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BNP PARIBAS,

         as a Senior Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  Manoj Khatri

  	
   

  
	
   

  	
   

  	
  Name:  Manoj Khatri

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  Jeffrey Stufsky

  	
   

  
	
   

  	
   

  	
  Name:  Jeffrey Stufsky

  
	
   

  	
   

  	
  Title:  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
  AUSTRALIA AND NEW ZEALAND
  BANKING 

  GROUP LIMITED, as a Senior Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  John W. Wade

  	
   

  
	
   

  	
   

  	
  Name:  John W. Wade

  
	
   

  	
   

  	
  Title:  Director

  



 


5

















 


	
   

  	
  KFW,

         as a Senior Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  Josef Bellmann

  	
   

  
	
   

  	
   

  	
  Name:  Josef Bellmann

  
	
   

  	
   

  	
  Title:  F.V.P.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  Sylvia Tassabehgi

  	
   

  
	
   

  	
   

  	
  Name:  Sylvia Tassabehgi

  
	
   

  	
   

  	
  Title:  S.P.M.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NATIXIS, New York Branch,

   
       as a Senior Lender

  
	
   

  	
  By:

  	
       /s/  Amit Roy

  	
   

  
	
   

  	
   

  	
  Name:  Amit Roy

  
	
   

  	
   

  	
  Title:  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/
   Pierre Audrain

  	
   

  
	
   

  	
   

  	
  Name:  Pierre Audrain

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CATERPILLAR FINANCIAL
  SERVICES (UK) 

  LTD., as a Senior Lender

  
	
   

  	
  By:

  	
       /s/  Douglas Lokken

  	
   

  
	
   

  	
   

  	
  Name:  Douglas Lokken

  
	
   

  	
   

  	
  Title:  Managing Director

  



 


6

















 


	
   

  	
  N M ROTHSCHILD & SONS
  LIMITED,

         as a Senior Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/
  George Pyper

  	
   

  
	
   

  	
   

  	
  Name:  George Pyper

  
	
   

  	
   

  	
  Title:  Director

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  Derek McCrone

  	
   

  
	
   

  	
   

  	
  Name:  Derek McCrone

  
	
   

  	
   

  	
  Title:  Assistant Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EXPORT DEVELOPMENT CANADA,

         as a Senior Lender

  
	
   

  	
  By:

  	
       /s/  Howard Clysdale

  	
   

  
	
   

  	
   

  	
  Name:  Howard Clysdale

  
	
   

  	
   

  	
  Title:  Portfolio Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  Janine Dopson

  	
   

  
	
   

  	
   

  	
  Name:  Janine Dopson

  
	
   

  	
   

  	
  Title:  Loan Asset Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FORTIS CAPITAL CORP.,

         as a Senior Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  Kerri L. Fox

  	
   

  
	
   

  	
   

  	
  Name:  Kerri L. Fox

  
	
   

  	
   

  	
  Title:  Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  Jaime Silver

  	
   

  
	
   

  	
   

  	
  Name:  Jaime Silver

  
	
   

  	
   

  	
  Title:  Assistant Vice President

  



 


7

















 


	
   

  	
  NORDKAP BANK AG,

         as a Senior Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  Kershli Rotter

  	
   

  
	
   

  	
   

  	
  Name:  Kershli Rotter

  
	
   

  	
   

  	
  Title:  VP

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  Stefan Geria

  	
   

  
	
   

  	
   

  	
  Name:  Stefan Geria

  
	
   

  	
   

  	
  Title:  CIO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FIRSTRAND (IRELAND) PLC,

         as a Senior Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  Stephen Peters

  	
   

  
	
   

  	
   

  	
  Name:  Stephen Peters

  
	
   

  	
   

  	
  Title:  Authorised Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  Kevin Deery

  	
   

  
	
   

  	
   

  	
  Name:  Kevin Deery

  
	
   

  	
   

  	
  Title:  Authorised Signatory

  



 


8

















 


	
   

  	
  BARCLAYS BANK PLC,

         as a Hedge Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  Allan Pouer

  	
   

  
	
   

  	
   

  	
  Name:  Allan Pouer

  
	
   

  	
   

  	
  Title:  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BNP PARIBAS,

         as a Hedge Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/  Christopher Taylor

  	
   

  
	
   

  	
   

  	
  Name:  Christopher Taylor

  
	
   

  	
   

  	
  Title:  Director/Derivatives Credit

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/
  Claude Marcassoli

  	
   

  
	
   

  	
   

  	
  Name:  Claude Marcassoli

  
	
   

  	
   

  	
  Title:  Vice President/Derivatives Credit

  



 


9