**Exhibit10.1**

**Execution Version**

 

 

PURCHASE AND SALEAGREEMENTEntered into as of September 25, 2006amongAPEX SILVER MINES LIMITED,APEX LUXEMBOURG S.À R.L.,APEX SILVER MINES SWEDEN AB,andSUMITOMO CORPORATION

----

 

**TABLE OF CONTENTS**
|                                                                                                                      | ** ** | ** **                                                                      | ** ** | **Page** |
|----------------------------------------------------------------------------------------------------------------------|------------|---------------------------------------------------------------------------------|------------|----------|
|                                                                                                                 |       |                                                                            |
| ARTICLE I DEFINITIONS                                                                                                |       | 3                                                                               |
|                                                                                                                 |       |                                                                            |
| ARTICLE II PURCHASE AND SALE; CLOSING                                                                                |       | 19                                                                              |
| Section 2.1                                                                                                          |       | Purchase and Sale                                                               |       | 19       |
| Section 2.2                                                                                                          |       | Purchase Price                                                                  |       | 19       |
| Section 2.3                                                                                                          |       | Allocation of Purchase Price                                                    |       | 19       |
| Section 2.4                                                                                                          |       | Closing                                                                         |       | 20       |
| Section 2.5                                                                                                          |       | Closing Deliveries                                                              |       | 20       |
| Section 2.6                                                                                                          |       | MOU                                                                             |       | 23       |
|                                                                                                                 |       |                                                                            |       |     |
| ARTICLE III TRANSACTION REPRESENTATIONS AND  WARRANTIES                                                              |       | 23                                                                              |
| Section 3.1                                                                                                          |       | Apex’s Representations and Warranties                                      |       | 23       |
| Section 3.2                                                                                                          |       | Sumitomo’s Representations and Warranties                                  |       | 29       |
|                                                                                                                 |       |                                                                            |       |     |
| ARTICLE IV  REPRESENTATIONS AND WARRANTIES REGARDING ACQUIRED ENTITIES, MSC, OLD METALS,  NEW METALS, AND NEW CAYMAN |       | 31                                                                              |
| Section 4.1                                                                                                          |       | Organization, Good Standing, Authority, Governing  Documents, Books and Records |       | 31       |
| Section 4.2                                                                                                          |       | Consents; No Conflicts                                                          |       | 32       |
| Section 4.3                                                                                                          |       | Consents and Approvals for the Project                                          |       | 33       |
| Section 4.4                                                                                                          |       | Subsidiaries                                                                    |       | 33       |
| Section 4.5                                                                                                          |       | Financial Statements; No Undisclosed Liabilities; No  Material Adverse Effect   |       | 34       |
| Section 4.6                                                                                                          |       | Title to Properties                                                             |       | 35       |
| Section 4.7                                                                                                          |       | Material Contracts                                                              |       | 35       |
| Section 4.8                                                                                                          |       | Employees; Employee Benefits                                                    |       | 36       |
| Section 4.9                                                                                                          |       | Legal Compliance                                                                |       | 37       |
| Section 4.10                                                                                                         |       | Taxes                                                                           |       | 37       |
| Section 4.11                                                                                                         |       | Legal Proceedings                                                               |       | 37       |
| Section 4.12                                                                                                         |       | Environmental Matters                                                           |       | 38       |
| Section 4.13                                                                                                         |       | Interested Party Transactions                                                   |       | 38       |
| Section 4.14                                                                                                         |       | Insurance                                                                       |       | 38       |
| Section 4.15                                                                                                         |       | Financing Documents                                                             |       | 38       |
| Section 4.16                                                                                                         |       | No Default                                                                      |       | 38       |
| Section 4.17                                                                                                         |       | Performance Security                                                            |       | 39       |
| Section 4.18                                                                                                         |       | Acquired Entities                                                               |       | 39       |
| Section 4.19                                                                                                         |       | No Liquidation; Intent                                                          |       | 39       |
| Section 4.20                                                                                                         |       | Notices                                                                         |       | 39       |
| Section 4.21                                                                                                         |       | Project Information and Other Information Furnished                             |       | 39       |
|                                                                                                                 |       |                                                                            |       |     |
| ARTICLE V OTHER COVENANTS                                                                                            |       | 40                                                                              |
| Section 5.1                                                                                                          |       | Confidentiality                                                                 |       | 40       |
| Section 5.2                                                                                                          |       | Expenses; Transfer Taxes; Tax Cooperation                                       |       | 40       |
|                                                                                                                      |            |                                                                                 |            |          |  |

 

i

----

 
| Section 5.3                      |   | Further Assurances                                            |   | 41     |
|----------------------------------|--------|---------------------------------------------------------------|--------|--------|
|                             |   |                                                          |   |   |
| ARTICLE VI CONDITIONS TO CLOSING |   | 42                                                            |
| Section 6.1                      |   | Authorizations and Government Approvals                       |   | 42     |
| Section 6.2                      |   | Closing Deliveries to Sumitomo                                |   | 42     |
| Section 6.3                      |   | Closing Deliveries to Apex, Apex Sweden, and Apex  Luxembourg |   | 46     |
| Section 6.4                      |   | Board Approvals                                               |   | 46     |
| Section 6.5                      |   | Restructuring                                                 |   | 46     |
|                             |   |                                                          |   |   |
| ARTICLE VII INDEMNIFICATION      |   | 47                                                            |
| Section 7.1                      |   | Survival of Representations and Warranties                    |   | 47     |
| Section 7.2                      |   | Indemnification                                               |   | 47     |
| Section 7.3                      |   | Procedures                                                    |   | 48     |
| Section 7.4                      |   | Insurance Proceeds                                            |   | 49     |
|                             |   |                                                          |   |   |
| ARTICLE VIII MISCELLANEOUS       |   | 50                                                            |
| Section 8.1                      |   | Entire Agreement                                              |   | 50     |
| Section 8.2                      |   | Governing Law; Language                                       |   | 50     |
| Section 8.3                      |   | Dispute Resolution                                            |   | 50     |
| Section 8.4                      |   | Headings                                                      |   | 50     |
| Section 8.5                      |   | Notices                                                       |   | 50     |
| Section 8.6                      |   | Severability                                                  |   | 51     |
| Section 8.7                      |   | Amendment; Waiver                                             |   | 52     |
| Section 8.8                      |   | Assignment and Binding Effect                                 |   | 52     |
| Section 8.9                      |   | No Benefit to Others                                          |   | 52     |
| Section 8.10                     |   | Counterparts                                                  |   | 52     |
| Section 8.11                     |   | Interpretation                                                |   | 52     |
| Section 8.12                     |   | Rules of Construction                                         |   | 54     |
| Section 8.13                     |   | No Partnership                                                |   | 54     |

 

ii

----

 

**TABLE OF SCHEDULES AND EXHIBITS**
| Schedule A-1 |   | Ownership of Shares of New Sweden 1, New  Sweden 2, and New Cayman |   |   |
|--------------|--------|------------------------------------------------------------------------------|--------|--------|
| Schedule A-2 |   | Ownership of Shares of MSC and Quotas of New Metals                          |   |   |
| Schedule B   |   | Material Project Documents                                                   |   |   |
| Schedule C   |   | Apex Disclosure Schedule                                                     |   |   |
| Schedule D   |   | Sumitomo Disclosure Schedule                                                 |   |   |
| Schedule E   |   | Purchase Price Allocation                                                    |   |   |
| Schedule F   |   | New and Amended Financing Documents                                          |   |   |
|         |   |                                                                         |   |   |
| Exhibit A    |   | Form of MSC Shareholders Agreement                                           |   |   |
| Exhibit B    |   | Form of Metals Quotaholders Agreement                                        |   |   |
| Exhibit C    |   | Form of New Cayman Shareholders Agreement                                    |   |   |
| Exhibit D    |   | Form of Apex Guaranty                                                        |   |   |
| Exhibit E    |   | Form of Sumitomo Guaranty                                                    |   |   |
| Exhibit F    |   | Form of Deferred Payments Agreement                                          |   |   |
| Exhibit G    |   | Form of Dispute Resolution Agreement                                         |   |   |
| Exhibit H    |   | Form of Option Agreement                                                     |   |   |
| Exhibit I    |   | Form of Reimbursement Agreement                                              |   |   |

** **

iii

----

 

**PURCHASE AND SALE AGREEMENT**

This Purchase and Sale Agreement is entered into as ofSeptember 25, 2006, by and among:

**APEX SILVER MINES LIMITED**, anexempted company limited by shares duly organized and validly existing underthe Laws of the Cayman Islands, British West Indies (“Apex”), with itsregistered office at Walker House, Mary Street, George Town, Grand Cayman,Cayman Islands, British West Indies;

**APEX LUXEMBOURG S.À R.L.**, a *société à responsabilité limitée*duly organized and validlyexisting under the Laws of the Grand Duchy of Luxembourg (“Apex Luxembourg”),with its registered office at 73, Côte d’Eich, L-1450 Luxembourg,registered with the Luxembourg Register of Commerce (*Registre deCommerce et des Sociétés du Grand-Duché de Luxembourg*) undernumber B 110 956;

**APEX SILVER MINES SWEDEN AB**, a *privat aktiebolag* duly organized and validly existing underthe Laws of the Kingdom of Sweden (“Apex Sweden”), with its registeredoffice at c/o Accurate Accounting AB, Drakegatan 7, SE-412 50 Göteborg,Sweden; and

**SUMITOMO CORPORATION**, acorporation duly organized and validly existing under the Laws of Japan (“Sumitomo”),with its headquarters at 8-11, Harumi, Chuo-ku, Tokyo 104-8610,Japan.

Apex, Apex Luxembourg, Apex Sweden, and Sumitomo aresometimes referred to herein individually as a “Party” and collectivelyas the “Parties.”  Capitalizedterms used and not otherwise defined in this Agreement have the respectivemeanings ascribed thereto in ARTICLE I.

**RECITALS**

A.            Apex Sweden owns, beneficially and of record,(1) shares representing 100% of the issued and outstanding sharecapital of means Gotlex Lageraktiebolag nr 451, organization number 556702-1083,a *privat aktiebolag* duly organized andvalidly existing under the Laws of the Kingdom of Sweden (“New Sweden 1”),with its registered office at c/o Wistrand Advokatbyrå, Lilla Bommen 1, 411 04Göteborg, Sweden; and (2) shares representing 100% of the issued andoutstanding share capital of Comercial Metales Blancos AB, a *privat aktiebolag* duly organized and validly existing underthe Laws of the Kingdom of Sweden (“New Sweden 2”), with itsregistered office at c/o Anders Sköldberg, Ernst & Young AB, 401 82Göteborg, Sweden.

B.            Each of Apex Sweden and Apex Luxembourg own, beneficiallyand of record, shares, which together represent 65% of the issued andoutstanding share capital of Minera San Cristóbal S.A., a *sociedadanónima* organized under the Laws of Bolivia (“MSC”), withdomicile at the city of Potosi, Bolivia, with register of commercenumber 13681.  New Sweden 1owns, beneficially and of record, shares representing 35% of the issued andoutstanding share capital of MSC.

----

 

C.            Apex Sweden owns, beneficially and of record, a quotarepresenting 65% of the issued and outstanding capital of Apex Metals MarketingGmbH, a *Gesellschaft mit beschränkter Haftung*organized under the Laws of Switzerland (“New Metals”), with its seat inZug, Canton of Zug, Switzerland and with a registered address of c/o JurisTreuhand AG, Industriestrasse 47, 6304 Zug, Switzerland.  New Sweden 2 owns, beneficially and ofrecord, a quota representing 35% of the issued and outstanding capital of NewMetals.

D.            Apex Sweden is the holder of that certain SubordinatedPromissory Note, dated as of the date hereof, made by MSC in favor of Apex Swedenin the original principal amount of US$27,495,378.00 of which US$27,495,378.00is outstanding on the date hereof (the “Apex Sweden MSC Subordinated Debt”).  New Sweden 1 is the holder of thatcertain Subordinated Promissory Note, dated as of the date hereof, made by MSCin favor of New Sweden 1 in the original principal amount ofUS$14,805,204.00 of which US$14,805,204.00 is outstanding on the date hereof(the “New Sweden 1 MSC Subordinated Debt”).

E.             Apex Luxembourg owns, beneficially and of record, shares,which represent 100% of the issued and outstanding share capital of ApexSilver Finance Ltd., an exempted company limited by shares organized under theLaws of the Cayman Islands, British West Indies (“New Cayman”), with itsregistered office at Walker House, Mary Street, George Town, Grand Cayman,Cayman Islands, British West Indies.

F.             MSC owns and is developing the San Cristóbal silver,zinc, and lead mine in Bolivia.

G.            Concurrently with the execution and delivery of thisAgreement, New Metals and MSC are entering into the New Concentrate SalesAgreement and the Concentrate Sales Agreement, dated as ofDecember 1, 2005, between MSC and Old Metals is beingterminated.  Under the New ConcentrateSales Agreement, New Metals has the exclusive right to acquire and market thelead, zinc, and bulk concentrates produced by the Project.

H.            The New and Amended Financing Documents are beingexecuted and delivered by the parties thereto concurrently with the executionand delivery of this Agreement.

I.              Apex Sweden desires to sell to Sumitomo, and Sumitomodesires to purchase from Apex Sweden, all of the shares of New Sweden 1and New Sweden 2, in consideration for, among other things, a portion ofthe Purchase Price.

J.             Apex Luxembourg desires to sell to Sumitomo, andSumitomo desires to purchase from Apex Luxembourg, the New Cayman AcquiredShares, in consideration for a portion of the Purchase Price.

**AGREEMENT**

In consideration of the mutual promises, covenants,and agreements set forth herein and other good and valuable consideration, thereceipt and sufficiency of which are hereby acknowledged, the Parties herebyagree as follows:

2

----

 

# **ARTICLE IDEFINITIONS**

For purposes of this Agreement, the following termshave the following meanings:

“Acquired Entity” means New Sweden 1 orNew Sweden 2, as the context requires.

“Acquired Entities” means New Sweden 1 andNew Sweden 2.

“Action” has the meaning specified in Section7.3(b).

“Affiliate” means, with respect to any Person,any other Person that directly, or indirectly through one or moreintermediaries, Controls, is Controlled by, or is under common Control with,the Person in question.

“Agreement” means this Purchase and SaleAgreement (including the Exhibits, Disclosure Schedules (but not the ApexDisclosure Bundle), and other Schedules attached hereto).

“Apex” has the meaning specified in thepreamble.

“Apex Disclosure Bundle” means the collectionof documents listed so named, dated the date hereof, delivered by Apex toSumitomo.

“Apex Disclosure Schedule” means the scheduleso named attached hereto as Schedule C.

“Apex Guaranty” means the Guaranty in the formattached hereto as Exhibit D, being entered into by Apex in favor of NewSweden 1, New Sweden 2, and Sumitomo.

“Apex Luxembourg” has the meaning specified inthe preamble.

“Apex Management Agreements Guarantee” meansthat certain Guarantee Agreement, dated as of December 1, 2005, by Apex infavor of MSC and Old Metals, as amended by the Omnibus Amendment Agreement,concerning, among other things, the MSC Management Agreement and the New MetalsManagement Agreement, and rights and obligations in respect of which wereassigned to New Metals pursuant to the Assignment and Assumption of Contract.

“Apex Parent Guarantees” means the ApexManagement Agreements Guarantee and the Apex Guaranty.

“Apex Sweden” has the meaning specified in thepreamble.

“Apex Sweden MSC Subordinated Debt” has themeaning specified in the recitals.

“ASC Bolivia” means ASC Bolivia LDC (SucursalBolivia), the branch, existing under the Laws of Bolivia, with domicile atCalle Campos N° 265, La Paz, Bolivia and with register of

3

----

 

commercenumber 13961, of ASC Bolivia LDC, an exempted limited duration companyorganized under the Laws of the Cayman Islands, British West Indies, with itsregistered office at Walker House, Mary Street, George Town, Grand Cayman,Cayman Islands, British West Indies.

“ASC Bolivia Acquired Assets” has the meaningspecified in Section 5.3(b).

“Assignment and Assumption of Contract” meansthat certain Assignment and Assumption of Contract, dated on or about the datehereof, between Old Metals and New Metals.

“Audited Balance Sheets” has the meaningspecified in Section 4.5(a).

“Authorizations” means resolutions, approvals,or consents of third parties, creditors, shareholders, partners, and members,excluding any resolution, approval, or consent of any Governmental Authority.

“Basket Amount” has the meaning specified inSection 7.2(b).

“Bolivia” means the Republic of Bolivia.

“Bolivian Corporations Law” means the BolivianCode of Commerce enacted by Decree Law No. 14379 ofFebruary 25, 1997.

“Bolivianos” or “Bs.” means Bolivianos,the lawful currency of Bolivia.

“Business Day” means any day other thanSaturday, Sunday, and a day on which banks in New York, New York, U.S.A. or Tokyo,Japan are required or permitted to close.

“CHF” means Swiss francs, the lawful currencyof Switzerland.

“Closing” has the meaning specified in Section2.4.

“Closing Date” has the meaning specified inSection 2.4.

“Common Security Agreement” means that certainCommon Security Agreement, dated as of December 1, 2005, among MSC,Apex Sweden, Apex Luxembourg, Old Metals, BNP Paribas, Barclays Capital,Corporación Andina de Fomento, JPMorgan Chase Bank, N.A., the senior lendersparty thereto, and the hedge banks party thereto, as amended by the OmnibusAmendment Agreement.

“Confidential Information” has the meaningspecified in Section 5.1.

“Confidentiality Agreement” means that certainConfidentiality Agreement, dated as of September 8, 2005, between Apex andSumitomo.

4

----

 

“Contract” means any note, bond, indenture,debenture, security agreement, trust agreement, mortgage, lease, contract,license, franchise, permit, guaranty, joint venture agreement, or otheragreement, instrument, commitment, or obligation, whether oral or written.

“Control” means the ability to direct or causethe direction (whether through the ownership of voting securities, by contract,or otherwise) of the management and policies of a Person or to control (whetheraffirmatively or negatively and whether through the ownership of votingsecurities, by contract, or otherwise) the decision of such Person to engage inthe particular conduct at issue.  APerson shall be rebuttably presumed to control an Entity if such Person owns,directly or indirectly through one or more intermediaries, (a) sufficientshares of stock or other equity interests of such Entity to allow such Person,under ordinary circumstances, to elect or direct the election of a majority ofthe members of the board of directors or other governing body of such Entity or(b) shares of stock or other equity interests of such Entity representing,in the aggregate, more than 50% of the aggregate outstanding economic interestsin such Entity.  The term “Controlled”has a meaning correlative to that of Control.

“Default” has the meaning specified in theCommon Security Agreement.

“Deferred Payments” has the meaning specifiedin Section 2.2.

“Deferred Payments Agreement” means theDeferred Payments Agreement in the form attached hereto as Exhibit F, beingentered into by Apex Sweden and Sumitomo.

“Development Plan” means that certain SanCristóbal Development Plan, dated November 2004, prepared by MSC andconcerning the construction and operation of the Project, as amended orotherwise modified by (a) those certain San Cristóbal Project MonthlyProject Reports prepared by Aver Kvaerner through the date hereof,(b) that certain First Amendment to EPCM Services Supply Agreement,effective as of April 11, 2005, together with that certain FirstChange Order to EPCM Services Supply Agreement, dated as of June 8, 2005,that certain Second Change Order to EPCM Services Supply Agreement, dated as ofJuly 21, 2005, that certain Third Change Order to EPCM ServicesSupply Agreement, dated as of December 2, 2005, that certain FourthChange Order to EPCM Services Supply Agreement, and that certain Fifth ChangeOrder to EPCM Services Supply Agreement, dated as of June 14, 2006,(c) the “Definitive Estimate” set forth in that certain BanksReconciliation Template, dated August 2006, and (d) the memorandumand Table 1-Comparison of the Development Plan Production Plan andthe July 2006 Revised Production Plan thereto, sent by email to Sumitomoon August 9, 2006.

“Disclosure Schedules” means either the Apex DisclosureSchedule or the Sumitomo Disclosure Schedule, as applicable.

“Dispute Resolution Agreement” has the meaningspecified in Section 2.5(a)(vii).

“Dollars” means the lawful currency of the U.S.

“Employee Benefit Plan” means any “employeebenefit plans” (within the meaning of Section 3(1) of ERISA), and anyother material employee benefit plan, program, or arrangement

5

----

 

for any current or formeremployee, director, consultant or independent contractor, or any dependent,survivor or beneficiary (in each case, whether or not resident in the UnitedStates), with respect to any of the foregoing, which is maintained,administered or contributed to (directly or indirectly) of MSC, Old Metals, NewMetals, or any ERISA Affiliate.

“Entity” means any *sociedadanónima, sociedad de responsabilidad limitada, Aktiengesellshchaft,Gesellschaft mit beschränkter Haftung, privat aktiebolag, société àresponsabilité limitée,* corporation, exempted company limited byshares, general or limited partnership, limited liability company, jointventure, trust, association, unincorporated entity of any kind, or GovernmentalAuthority.

“Environmental Guidelines” means the followingguidelines as in effect on the date hereof applicable to the Project (referredto in the Equator Principles framework): (a) World Bank Environmental,Health and Safety Guidelines (i) Mining and Milling - Open Pit datedAugust 11, 1995, (ii) Pollution Abatement and PreventionHandbook 1998:  GeneralEnvironmental Guidelines, (iii) Operational Policy 4.01 (EnvironmentalAssessment), (iv) Operation Policy 4.04 (Natural Habitats),(v) Operational Policy 4.11 (Cultural Property), (vi) PollutionAbatement and Prevention Handbook 1998: Part III Project Guidelines,Monitoring and Base Metal and Iron Ore Mining, and (vii) the Reclamationand Closure Plan Section in the Knight-Piesold Environmental Assessmentof the Project (Closure Plan) and (b) IFC Safeguard Policies datedSeptember 1998.

“Environmental Laws” means any and all BolivianLaws relating to the regulation or protection of the environment or humanhealth or to emissions, discharges, releases or threatened releases ofpollutants, contaminants, chemicals or toxic or hazardous substances or wastesinto the indoor or outdoor environment, including ambient air, soil, surfacewater, ground water, wetlands, land or subsurface strata, or otherwise relatingto the manufacture, processing, distribution, use, treatment, storage,disposal, transport, or handling of pollutants, contaminants, chemicals, ortoxic or hazardous substances or wastes.

“ERISA” means the U.S. Employee RetirementIncome Security Act of 1974, as amended.

“ERISA Affiliate” means any Entity that wouldbe considered a single employer with MSC, Old Metals, or New Metals pursuant toSection 414(b), (c), (m) or (o) of the U.S. Internal Revenue Code of 1986,as amended, and the regulations promulgated under those sections or pursuant toSection 4001(b) of ERISA and the regulations promulgated thereunder.

“Event of Default” has the meaning specified inthe Common Security Agreement.

“Filing” means any written registration,declaration, application, or filing.

“Financial Statements” has the meaningspecified in Section 4.5(a).

6

----

 

“Financing Documents” means:

### (a)           that certain Loan Agreement, dated December 1, 2005,among MSC, certain lenders named therein, and BNP Paribas, as administrativeagent;

### (b)           that certain Loan Agreement, datedDecember 1, 2005, between MSC and Corporación Andina de Fomento;

### (c)           the Common Security Agreement;

### (d)           that certain Sponsor Pledge andAgreement, dated as of December 1, 2005, between Apex and JPMorgan ChaseBank, N.A., as collateral agent (as amended by the Omnibus AmendmentAgreement);

### (e)           that certain Transfer RestrictionsAgreement, dated as of December 1, 2005, among Apex, Apex Luxembourg, ApexSweden, Old Metals, BNP Paribas, as administrative agent, and JPMorgan ChaseBank, N.A., as collateral agent (as amended by Amendment No. 1 to theTransfer Restrictions Agreement, dated as of May 2, 2006 and as furtheramended by the Omnibus Amendment Agreement);

### (f)            that certain Completion Agreement,dated as of December 1, 2005, among Apex, Barclays Capital, BNP Paribas,and JPMorgan Chase Bank, N.A. (as amended by the Omnibus Amendment Agreement);

### (g)           that certain ISDA Master Agreement(together with the Amended and Restated Schedule to the ISDA Master Agreementand the Credit Support Annex thereto), dated as of March 16, 2005 (as amendedby that certain Amendment No. 1 to Master Agreement, dated as ofJune 16, 2005, and as further amended by that certain Amendment andRestatement of the Schedule to Master Agreement, dated as of December 1,2005), between BNP Paribas and Old Metals,****asnovated by the Metals Hedge Novation Agreements related thereto and as furtheramended by that certain Schedule to Master Agreement, dated on or about thedate hereof, between BNP Paribas and New Cayman**;**

### (h)           that certain ISDA Master Agreement(together with the Amended and Restated Schedule to the ISDA Master Agreementand the Credit Support Annex thereto), dated as of September 4,1998 (as amendedby that certain Amendment, dated February 18, 2005, as further amended bythat certain Amendment No. 2, dated as of June 16, 2005, and as furtheramended by that certain Amendment and Restatement of the Schedule to MasterAgreement, dated as of December 1, 2005), between Barclays Bank PLC andOld Metals,****as novated by theMetals Hedge Novation Agreements related thereto and as further amended by thatcertain Schedule to Master Agreement, dated on or about the date hereof,between Barclays Bank PLC and New Cayman**;**

### (i)            the Security Documents, includingthe Bolivian Security Documents (in each case, as defined in the CommonSecurity Agreement);

7

----

 

### (j)            the Omnibus Amendment Agreement;

### (k)           that certain Pledge Agreement, datedon or about the date hereof, by Apex Luxembourg in favor of JPMorgan ChaseBank, N.A. (regarding shares of New Cayman);

### (l)            that certain Pledge Agreement, datedon or about the date hereof, by Apex Sweden in favor of JPMorgan Chase Bank,N.A. (New York law pledge regarding quotas of New Metals);

### (m)          that certain Pledge Agreement, datedon or about the date hereof, by Apex Sweden in favor of JPMorgan Chase Bank,N.A. (Swiss law pledge regarding quotas of New Metals);

### (n)           that certain Pledge Agreement, datedon or about the date hereof, by New Sweden 2 in favor of JPMorgan ChaseBank, N.A. (Swiss law pledge regarding quotas of New Metals);

### (o)           that certain Pledge Agreement, datedon or about the date hereof, by New Sweden 2 in favor of JPMorgan ChaseBank, N.A. (New York law pledge regarding quotas of New Metals);

### (p)           that certain Pledge Agreement, datedon or about the date hereof, by Apex Sweden in favor of JPMorgan Chase Bank,N.A. (New York law pledge regarding shares of New Sweden 2);

### (q)           that certain Pledge Agreement, datedon or about the date hereof, by Apex Sweden in favor of JPMorgan Chase Bank,N.A. (New York law pledge regarding quotas of New Sweden 1);

### (r)            that certain Apex Silver FinanceCross-Guarantee and Security Agreement, dated on or about the datehereof, between New Cayman and JPMorgan Chase Bank, N.A.; and

### (s)           any related notes, guarantees,collateral documents, instruments, and agreements executed in connectiontherewith (other than any such notes, guarantees, collateral documents, instruments,and agreements to which Sumitomo is a party);

in each case of clauses (a) through (s) ofthis definition, as such may be amended, novated, or otherwise modified throughthe date hereof.

“GAAP” means, in respect of MSC, generallyaccepted accounting principles as used in Bolivia and, in respect of OldMetals, New Metals, and New Cayman, generally accepted accounting principles asused in the U.S., in each case as in effect on the date hereof.

“Governing Documents” means the *estatutos sociales, escritura de constitución social,*articles or certificate of incorporation or formation or association, generalor limited partnership

8

----

 

agreement, limitedliability company or operating agreement, bylaws, or other incorporation orgoverning documents of any Entity.

“Government Approvals” means any authorization,consent, approval, License, lease, ruling, permit, tariff, rate, certification,exemption, Filing, variance, claim, Judgment, decree, sanction, or publicationof, by or with, any notice to, any declaration of or with, or any registrationby or with, or any other action or deemed action by or on behalf of, anyGovernmental Authority.

“Governmental Authority” means any domestic orforeign national, regional, or local, court, governmental department, commission,authority, central bank, board, bureau, agency, official, or otherinstrumentality exercising executive, legislative, judicial, taxing,regulatory, or administrative powers or functions of or pertaining togovernment.

“Hedge Instrument” means (a) any currencyswap agreement, option contract, future contract, option on futures contract,spot or forward contract, or other agreements to purchase or sell currency orany other arrangement entered into by a Person to hedge such Person’s exposureor to speculate on movements in rates of exchange of currencies; (b) anyinterest rate swap, option contract, futures contract, options on futurescontract, cap, floor, collar, or any other similar hedging arrangements enteredinto by a Person to hedge such Person’s exposure to or to speculate onmovements in interest rates; (c) any forward purchase, forward sale, putoption, synthetic put option, call option, collar, or any other arrangementrelating to commodities entered into by a Person to hedge such Person’s exposureto or to speculate on commodity prices; and (d) any other derivativetransaction or hedging arrangement of any type or nature whatsoever that is thesubject at any time of trading in the over-the-counter derivativesmarket.

“Indebtedness” means, without duplication,(a) all obligations created, issued, or incurred for borrowed money(whether by loan, the issuance and sale of debt securities, or the sale ofproperty to another Person subject to an understanding or agreement, contingentor otherwise, to repurchase such property from such other Person); (b) allobligations to pay the deferred purchase price or acquisition price of propertyor services (other than accrued expenses and trade accounts payable incurred inthe ordinary course of business that are not more than 90 days past due);(c) all obligations to pay money evidenced by a note, bond, debenture, orsimilar instrument; (d) the principal amount of all obligations under orin respect of leases capitalized in accordance with generally accepted accountingprinciples as used in the U.S.; (e) all reimbursement obligations inrespect of letters of credit or similar instruments issued or accepted by banksand other financial institutions; (f) all payment obligations under anyHedge Instrument to the extent constituting a liability under generallyaccepted accounting principles as used in the U.S.; and (g) allobligations of another Person of the type listed inclauses (a) through (f) of this definition, payment of which isguaranteed by or secured by Liens on the property of such Person (with respectto Liens, to the extent of the value of property pledged pursuant to such Liensif less than the amount of such obligations).

“Indemnified Party” has the meaning specifiedin Section 7.2(a).

“Indemnifying Party” has the meaning specifiedin Section 7.2(a).

9

----

 

“Intellectual Property Rights” means allpermits, licenses, trademarks, patents, or agreements with respect to the usageof technology or other intellectual property (other than those constitutingGovernment Approvals and off-the-shelf, commercially availablesoftware).

“Judgment” means any judgment, writ, order,decree, injunction, award, restraining order, or ruling of or by any court,judge, justice, arbitrator, or magistrate, including any bankruptcy court orjudge, and any writ, order, decree, or ruling of or by any GovernmentalAuthority.

“KYD” means Cayman Islands dollars, the lawfulcurrency of the Cayman Islands, British West Indies.

“Law” or “Laws” means any national,regional, or local, or any foreign, statute, law, code, ordinance, rule,regulation, resolution, Judgment, regulatory agreement with a GovernmentalAuthority, or general principle of common or civil law or equity.

“Legal Proceeding” means any private orgovernmental action, suit, complaint, arbitration, legal, or judicial oradministrative proceeding or investigation, whether civil, criminal, or of anyother nature.

“Licenses” means all franchises, concessions,licenses, permits, authorizations, certificates, variances, exemptions, consents,leases, rights of way, easements, instruments, orders, and approvals issued byany Governmental Authority.

“Lien” means any (a) security agreement,conditional sale agreement, or other title retention agreement; (b) lease,consignment, or bailment given for security purposes; and (c) lien,charge, restrictive agreement, prohibition against transfer, mortgage, pledge,legal privilege, option, encumbrance, adverse interest, security interest,claim, attachment, exception to or defect in title, or other ownership interest(including reservations, rights of entry, possibilities of reverter,encroachments, easements, rights of way, restrictive covenants, leases, andLicenses granted to other Persons) of any kind, but excluding any of theforegoing created or imposed by or pursuant to this Agreement or any otherTransaction Document.

“Losses” means losses, liabilities, damages,dues, deficiencies, assessments, Liens, fines, interest, penalties, includingwith respect to Taxes, costs, expenses, and obligations, including amountsreasonably paid in settlement, prosecuting, defending, or otherwise, andreasonable legal, accounting, experts, and other fees, costs, and expenses, inconnection with claims, actions, suits, proceedings, hearings, investigations,charges, complaints, demands, injunctions, and Judgments.

“Mandatory Metals Hedge Agreements” has themeaning specified in the Common Security Agreement.

“Material Adverse Effect” means

### (a)           with respect to MSC, Old Metals, NewCayman, and/or New Metals, (i) a material adverse effect on or change tothe condition (financial or otherwise), business,

10

----

 

### performance,operations, or properties of MSC, Old Metals, New Cayman, and New Metals, andthe Project, taken together, except to the extent that such effect or change isattributable to or results from (A) changes affecting generally thesecurities or capital markets or economic conditions in the country orcountries in which any such Entity conducts its businesses or the Project isconducted, (B) changes affecting generally the industries in which anysuch Entity operates (as opposed to changes affecting any such Entity or groupof Entities specifically, predominantly or disproportionately),(C) changes in the country or countries in which the Project is beingconducted or any such Entity conducts its businesses affecting generally theindustries in which any such Entity operates (as opposed to changes affectingany such Entity or group of Entities specifically, predominantly ordisproportionately), (D) the effect of the public announcement of thisAgreement or the pendency of the transactions contemplated hereby and by theother Transaction Documents, (E) changes in generally accepted accountingprinciples in the U.S. or elsewhere, or (F) the Mandatory Metals Hedge Agreements,or (ii) any event, change, or circumstance that has a material adverseeffect on the ability of such Entity to perform its obligations under, and toconsummate the transactions contemplated by, the Transaction Documents to whichit is a party;

### (b)           with respect to New Sweden 1and/or New Sweden 2, (i) a material adverse effect on or change tothe condition (financial or otherwise), business, performance, operations, orproperties of New Sweden 1 and New Sweden 2, taken together, exceptto the extent that such effect or change is attributable to or results from(A) changes affecting generally the securities or capital markets oreconomic conditions in the country or countries in which any such Entityconducts its businesses or the Project is conducted, (B) changes affectinggenerally the industries in which any such Entity operates (as opposed tochanges affecting any such Entity or group of Entities specifically,predominantly or disproportionately), (C) changes in the country orcountries in which the Project is being conducted or any such Entity conductsits businesses affecting generally the industries in which any such Entityoperates (as opposed to changes affecting any such Entity or group of Entitiesspecifically, predominantly or disproportionately), (D) the effect of thepublic announcement of this Agreement or the pendency of the transactionscontemplated hereby and by the other Transaction Documents, or (E) changesin generally accepted accounting principles in the U.S. or elsewhere, or (ii) anyevent, change, or circumstance that has a material adverse effect on theability of such Entity to perform its obligations under, and to consummate thetransactions contemplated by, the Transaction Documents to which it is a party;or

### (c)           with respect to Apex, Apex Sweden,Apex Luxembourg, and/or Service Company (i) a material adverse effect onor change to the condition (financial or otherwise), business, performance,operations, or properties of Apex and its Subsidiaries, taken as a whole, exceptto the extent that such effect or change is attributable to or results from(A) changes affecting generally the securities or capital markets oreconomic conditions in the country or countries in which any such Entityconducts its businesses or the Project is conducted, (B) changes affectinggenerally the industries in which any such Entity operates (as opposed tochanges affecting any such Entity or group of Entities specifically,predominantly or disproportionately), (C) changes in the country or

11

----

 

### countries inwhich the Project is being conducted or any such Entity conducts its businessesaffecting generally the industries in which any such Entity operates (asopposed to changes affecting any such Entity or group of Entities specifically,predominantly or disproportionately), (D) the effect of the publicannouncement of this Agreement or the pendency of the transactions contemplatedhereby and by the other Transaction Documents, or (E) changes in generallyaccepted accounting principles in the U.S. or elsewhere, or (ii) anyevent, change, or circumstance that has a material adverse effect on theability of such Entity to perform its obligations under, and to consummate thetransactions contemplated by, the Transaction Documents to which it is a party.

“Material Project Documents” means theContracts listed on Schedule B and each other Contract to which MSC is a partyor by which MSC’s assets are bound, which is in effect on the date hereof, andhas payments due to or from MSC thereunder in excess of US$10,000,000.00.

“Metals Hedge Novation Agreements” means

### (a)           that certain Novation Agreement, dated on or about thedate hereof, among BNP Paribas, Old Metals, as transferor, and Apex Luxembourg,as transferee, concerning that certain ISDA Master Agreement (together with theSchedule and the Credit Support Annex thereto), dated as ofMarch 16, 2005 (as amended by that certain Amendment No. 1 toMaster Agreement, dated as of June 16, 2005, and as further amendedby that certain Amendment and Restatement of the Schedule to the MasterAgreement, dated as of December 1, 2005), between BNP Paribas and OldMetals;

### (b)           that certain Novation Agreement,dated on or about the date hereof, among BNP Paribas, Apex Luxembourg, astransferor, and New Cayman, as transferee, concerning that certain ISDA MasterAgreement (together with the Schedule and the Credit Support Annex thereto),dated as of March 16, 2005 (as amended by that certain AmendmentNo. 1 to Master Agreement, dated as of June 16, 2005, and asfurther amended by that certain Amendment and Restatement of the Schedule toMaster Agreement, dated as of December 1, 2005), between BNP Paribasand Old Metals, as novated by the Novation Agreement specified inclause (a) of this definition and as further amended by that certainSchedule to Master Agreement, dated on or about the date hereof, between BNPParibas and New Cayman;

### (c)           that certain Novation Agreement,dated on or about the date hereof, among Barclays Bank PLC, Old Metals, astransferor, and Apex Luxembourg, as transferee, concerning that certain ISDAMaster Agreement (together with the Schedule and the Credit Support Annexthereto), dated as of September 4, 1998 (as amended by that certainAmendment, dated February 18, 2005, as further amended by thatcertain Amendment No. 2, dated as of June 16, 2005, and asfurther amended by that certain Amendment and Restatement of the Schedule toMaster Agreement, dated as of December 1, 2005), between BarclaysBank PLC and Old Metals; and

### (d)           that certain Novation Agreement, datedon or about the date hereof, among Barclays Bank PLC, Apex Luxembourg, astransferor, and New Cayman, as

12

----

 

### transferee,concerning that certain ISDA Master Agreement (together with the Schedule andthe Credit Support Annex thereto), dated as of September 4, 1998 (asamended by that certain Amendment, dated February 18, 2005, asfurther amended by that certain Amendment No. 2, dated as ofJune 16, 2005, and as further amended by that certain Amendment andRestatement of the Schedule to Master Agreement, dated as ofDecember 1, 2005), between Barclays Bank PLC and Old Metals, asnovated by the Novation Agreement specified in clause (c) of thisdefinition and as further amended by that certain Schedule to Master Agreement,dated on or about the date hereof, between Barclays Bank PLC and New Cayman.

“Metals Quotaholders Agreement” has the meaningspecified in Section 2.5(a)(v).

“Mining Concessions” means, collectively, themining concessions listed on Section 4.3(a) of the Apex Disclosure Schedule.

“Minute Books” has the meaning specified inSection 4.1(d).

“MOU” means that certain Non-BindingMemorandum of Understanding, dated June 29, 2006, between Apex andSumitomo.

“MSC” has the meaning specified in therecitals.

“MSC Management Agreement” means that certainAmended and Restated Management and Services Agreement, dated on or about thedate hereof, between MSC and Service Company.

“MSC Shareholders Agreement” has the meaningspecified in Section 2.5(a)(iv).

“MSC Subordinated Debt” means the Apex SwedenMSC Subordinated Debt, the New Sweden 1 MSC Subordinated Debt, and the NewCayman MSC Subordinated Debt.

“New and Amended Financing Documents” means theagreements, documents, and instruments listed on Schedule F.

“New Cayman” has the meaning specified in therecitals.

“New Cayman Acquired Shares” means shares ofNew Cayman representing 35% of the issued and outstanding shares of New Caymanas of the Closing.

“New Cayman Shareholders Agreement” has themeaning specified in Section 2.5(a)(vi).

“New Concentrate Sales Agreement” means thatcertain Concentrate Sales Agreement, dated on or about the date hereof, betweenMSC and New Metals.

“New Metals” has the meaning specified in therecitals.

13

----

 

“New Metals Management Agreement” means thatcertain Management and Services Agreement, dated on or about the date hereof,among New Metals, New Cayman, and Service Company.

“New Sweden 1” has the meaning specifiedin the recitals.

“New Sweden 1 Acquired Shares” meansshares of New Sweden 1 representing 100% of the issued and outstandingshares of New Sweden 1 as of the Closing.

“New Sweden 1 MSC Subordinated Debt” hasthe meaning specified in the recitals.

“New Sweden 2” has the meaning specifiedin the recitals.

“New Sweden 2 Acquired Shares” meansshares of New Sweden 2 representing 100% of the issued andoutstanding shares of New Sweden 2 as of the Closing.

“Old Metals” means Apex Metals GmbH, a *Gesellschaft mit beschränkter Haftung*organized under theLaws of Switzerland, with its seat in Zug, Canton of Zug, Switzerland and witha registered address of c/o Juris Treuhand AG, Industriestrasse 47, 6304 Zug,Switzerland.

“Old Metals Concentrate Sales Agreement Termination”means that certain Termination Agreement, dated as of the date hereof, betweenMSC and Old Metals, concerning that certain Concentrate Sales Agreement, datedas of December 1, 2005, between MSC and Old Metals.

“Omnibus Amendment Agreement” means thatcertain Omnibus Amendment Agreement, dated as of September 20, 2006, amongMSC, Apex, Apex Sweden, Apex Luxembourg, Old Metals, New Cayman, New Metals,New Sweden 1, New Sweden 2, BNP Paribas, Barclays Capital,Corporación Andina de Fomento, JPMorgan Chase Bank, N.A., the senior lendersparty thereto, and the hedge banks party thereto.

“Operational Agreements” means all Contracts towhich Old Metals is a party or by which its assets are bound requiring paymentsin excess of US$25,000.00 on an annual basis or that are otherwise material toOld Metals.

“Option Agreement” means the Option Agreementin the form attached hereto as Exhibit H, being entered into by Apex andSumitomo.

“Other Property Rights” means, collectively,easements, leases, mining and civil usufructs, rights of way, surface rights,real estate other than mining concessions, and other property rights.

“Party” or “Parties” has the meaningspecified in the preamble.

“Performance Security” has the meaningspecified in Section 4.17.

“Permitted Liens” means, with respect to anyPerson, the following: (a) Liens for Taxes, assessments, or othergovernmental charges or levies not yet due and payable or that are being

14

----

 

contested in good faiththrough appropriate proceedings diligently conducted and for which adequatereserves (as determined on the basis of generally accepted accountingprinciples as used in the U.S.) have been established; (b) Liens ofcarriers, warehousemen, mechanics, materialmen, and landlords incurred in theordinary course of business for sums not yet due or that are being contested ingood faith through appropriate proceedings diligently conducted and for whichadequate reserves (as determined on the basis of generally accepted accountingprinciples as used in the U.S.) have been established; (c) Liens incurredin the ordinary course of business in connection with workmen’s compensation,unemployment insurance, or other forms of governmental insurance or benefits,or to secure performance of tenders, statutory obligations, legal privileges,leases, bank guarantees, letters of credit, and Contracts (other than forborrowed money) entered into in the ordinary course of business or to secureobligations on surety or appeal bonds; (d) purchase money securityinterests or Liens on property acquired or held by the applicable Person in theordinary course of business to secure the purchase price of such property or tosecure indebtedness incurred solely for the purpose of financing theacquisition of such property; (e) easements, restrictions, and other minordefects of title that are not, in the aggregate, material or which do not,individually or in the aggregate, materially and adversely affect the value ofthe property affected thereby or the use thereof for its intended purpose; and(f) Liens incurred under the Financing Documents.

“Person” means any natural person or Entity.

“Port Agreement” means that certainConstruction and Port Services Agreement, dated as ofSeptember 1, 2003 (as amended by First Amendment to the Constructionand Port Services Agreement, dated as of March 31, 2005, and as furtheramended by Second Amendment to Construction and Port Services Agreement, datedas of December 16, 2005) by and between MSC and Puerto de MejillonesS.A.

“Preemptive Rights” means (a) thepreferred rights that the shareholders of a *sociedad anónima*have, pursuant to Article 255 of the Bolivian Corporations Law, entitlingthem to purchase newly issued shares of such sociedad anónima in accordancewith their *pro rata* shareholding; (b) thepreferred rights that the quotaholders of a *Gesellschaft mitbeschränkter Haftung* have, pursuant to Article 787 of the Swiss Codeof Obligations, entitling them to acquire a proportional increase of theirquotas; and (c) the preferred rights that the shareholders of a Swedish *privat aktiebolag* have entitling them to purchase newlyissued shares of such *privat aktiebolag*in accordance with their *pro rata*shareholding.

“Project” means the development, establishment,construction, and operation by MSC of the San Cristóbal open pit silver, zinc,and lead mine and processing facilities located in the Potosi Department,Bolivia, the processing of silver, zinc, and lead ores to recover silverbearing zinc, and lead concentrates, and related infrastructure (including railtransportation, power transmission, and port facilities), and the marketing andsale of the products thereof and other activities reasonably ancillary thereto.

“Project Information” means all the informationrelated to the Project contained in the Apex Disclosure Bundle taken as awhole.

15

----

 

“Purchase Price” has the meaning specified inSection 2.2.

“Rail Transportation Agreement” means thatcertain Transportation Agreement, dated as of March 15, 2005, betweenMSC and Antofagasta Railway Company PLC.

“Reimbursement Agreement” means a reimbursementagreement in the form attached hereto as Exhibit I, being entered into bySumitomo in favor of Apex.

“Reference Exchange Rate” has the meaningspecified in Section 8.11(d).

“Restriction” means, with respect to any sharecapital, partnership interest, membership right or membership interest in alimited liability company, or other equity interest or security, any voting orother trust or agreement, option, warrant, preemptive right (other thanPreemptive Rights), right of first offer, right of first refusal, escrowarrangement, proxy, buy-sell agreement, power of attorney, or otherContract (but excluding this Agreement and the other Transaction Documents), orany License that, conditionally or unconditionally, (a) grants to anyPerson the right to purchase or otherwise acquire, or obligates any Person tosell or otherwise dispose of or issue, or otherwise gives or, whether upon theoccurrence of any event or with notice or lapse of time or both or otherwise,may give any Person the right to acquire (i) any such share capital,partnership interest, membership right or membership interest in a limitedliability company, or other equity interest or security; (ii) any proceedsof, or any distributions paid or that are or may become payable with respectto, any such share capital, partnership interest, membership right or membershipinterest in a limited liability company, or other equity interest or security;or (iii) any interest in such share capital, partnership interest,membership right or membership interest in a limited liability company, orother equity interest or security or any such proceeds or distributions;(b) restricts or, whether upon the occurrence of any event or with noticeor lapse of time or both or otherwise, is reasonably likely to restrict thetransfer or voting of, or the exercise of any rights or the enjoyment of anybenefits arising by reason of ownership of, any such share capital, partnershipinterest, membership right or membership interest in a limited liabilitycompany, or other equity interest or security or any such proceeds ordistributions; or (c) creates or, whether upon the occurrence of any eventor with notice or lapse of time or both or otherwise, is reasonably likely tocreate a Lien or purported Lien affecting such share capital, partnershipinterest, membership right or membership interest in a limited liabilitycompany, or other equity interest or security, proceeds or distributions.

“Scheduled Contracts” has the meaning specifiedin Section 4.7(a).

“SEK” means Swedish kronas, the lawful currencyof Sweden.

“Service Company” means Apex Silver MinesCorporation, a corporation organized under the Laws of Delaware, U.S.A.

“Subsidiary” means, with respect to any Person:

### (a)           a corporation a majority in votingpower of whose share capital with voting power, under ordinary circumstances,to elect directors is, at the date of determination thereof, directly orindirectly, owned by such Person, by a Subsidiary of

16

----

 

### such Person,or by such Person and one or more Subsidiaries of such Person, without regardto whether the voting of such share capital is subject to a voting agreement orsimilar Restriction,

### (b)           a partnership or limited liabilitycompany in which such Person or a Subsidiary of such Person is, at the date ofdetermination thereof, (i) in the case of a partnership, a general partnerof such partnership with the power affirmatively to direct the policies andmanagement of such partnership or (ii) in the case of a limited liabilitycompany, the managing member or, in the absence of a managing member, a memberwith the power affirmatively to direct the policies and management of suchlimited liability company, or

### (c)           any Entity (other than a corporation,partnership, or limited liability company) in which such Person, a Subsidiaryof such Person, or such Person and one or more Subsidiaries of such Person,directly or indirectly, at the date of determination thereof, has (i) thepower to elect or direct the election of a majority of the members of thegoverning body of such Person (whether or not such power is subject to a votingagreement or similar Restriction) or (ii) in the absence of such agoverning body, at least a majority ownership interest.

“Sumitomo” has the meaning specified in thepreamble.

“Sumitomo Completion Agreement” means thatcertain Sumitomo Completion Agreement, dated on or about the date hereof, amongSumitomo, Barclays Capital, BNP Paribas, and JPMorgan Chase Bank, N.A.

“Sumitomo Disclosure Schedule” means theschedule so named attached hereto as Schedule D.

“Sumitomo Guaranty” means the Guaranty in theform attached hereto as Exhibit E, being entered into by Sumitomo in favorof Apex Sweden, Apex Luxembourg, and Apex.

“Sweden” means the Kingdom of Sweden.

“Swiss Company Law” means Articles 620 to 926of the Swiss Code of Obligations.

“Switzerland” means the Swiss Confederation.

“Tax Authority” means any GovernmentalAuthority of any kind with the power to impose any Tax.

“Tax” or “Taxes” means all taxes,however denominated, foreign or domestic, including any monetary adjustments,interest, penalties or other additions to tax that may become payable inrespect thereof, imposed by any Tax Authority, which taxes include all incomeor profits taxes, payroll and employee withholding taxes, unemploymentinsurance, social security taxes, income withholding taxes, sales and usetaxes, value added taxes, ad valorem taxes, excise taxes, franchise taxes,gross receipts taxes, business or municipal license (*patentemunicipal*) taxes,

17

----

 

occupation taxes, realand personal property taxes, stamp taxes, environmental taxes, severance taxes,production taxes, transfer taxes, workers’ compensation, governmental charges,and other obligations of the same or of a similar nature to any of theforegoing.

“Tax Returns” means all returns, declarations,reports, forms, claims for refund, estimates, information returns, andstatements and other documentation, including amendments, required to bemaintained or filed with or supplied to any Tax Authority in connection withany Taxes.

“Third Party Concentrate Sales Agreement” hasthe meaning specified in the Common Security Agreement.

“Transaction Documents” means this Agreement,the MSC Shareholders Agreement, the Metal Quotaholders Agreement, the NewCayman Shareholders Agreement, the Deferred Payments Agreement, the DisputeResolution Agreement, the MSC Management Agreement, the New Metals ManagementAgreement, the Option Agreement, the New and Amended Financing Documents, theMetals Hedge Novation Agreements, the Old Metals Concentrate Sales AgreementTermination, the New Concentrate Sales Agreement, the Apex Parent Guarantees,the Sumitomo Guaranty, the Reimbursement Agreement, and any and all otherdocuments, instruments, and agreements being or to be executed and delivered inconnection with the transactions contemplated hereby (including in connectionwith the satisfaction of each Party’s conditions hereunder) or thereby.

“Transmission Line Loan Documents” means(a) that certain Power Line Construction and Transmission Agreement, datedas of January 14, 2005 (as amended by the First Amendment to PowerLine Construction and Transmission Agreement, dated as ofMarch 14, 2005, and as further amended by the Second Amendment toPower Line Construction and Transmission Agreement, dated as ofAugust 29, 2005), among MSC, Ingelec S.A., Ingelec Transportadora deElectricidad S.A., Ingelec Electricity Transportation Investments, Corp., andSan Cristóbal Transportadora de Electricidad, S.A.; (b) that certain LoanAgreement, dated as of April 15, 2005, between ASC Bolivia and SanCristóbal Transportadora de Electricidad, S.A.; (c) that certainPromissory Note, dated as of April 15, 2005, made by San CristóbalTransportadora de Electricidad, S.A. in favor of ASC Bolivia; (d) thatcertain Escrow Agreement and Account Pledge and Security Agreement, dated as ofApril 15, 2005, among San Cristóbal Transportadora de Electricidad,S.A., ASC Bolivia, and Atlantic Security Bank, Cayman Islands; (e) thatcertain Pledge Agreement, dated as of April 15, 2005, made by IngelecElectricity Transportation Investments, Corp., Raúl Quiroga, and Rene Fernándezin favor of ASC Bolivia; (f) that certain Pledge Agreement, dated as ofApril 15, 2005, made by Ingelec Transportadora de Electricidad S.A.in favor of ASC Bolivia; (g) that certain Guaranty, dated as ofApril 15, 2005, made by Ingelec S.A., Ingelec Transportadora deElectricidad S.A., and Ingelec Electricity Transportation Investments, Corp. infavor of ASC Bolivia; and (h) a moveables pledge agreement to be enteredinto pursuant to the agreement referred to in clause (b) of this definition.

“Unaudited Balance Sheet Date” has the meaningspecified in Section 4.5(a).

“Unaudited Separate Balance Sheet Date” has themeaning specified in Section 4.5(a).

18

----

 

“U.S.” or “U.S.A.” means the UnitedStates of America.

“US$” means Dollars.

# **ARTICLEIIPURCHASE AND SALE; CLOSING**

## Section 2.1             Purchaseand Sale.  On and subject to theterms and conditions of this Agreement, simultaneously with the executionand delivery of this Agreement by the Parties and for the considerationspecified in Section 2.2:

### (a)           Sumitomo is purchasing from ApexSweden, and Apex Sweden is selling, transferring, assigning, conveying, anddelivering to Sumitomo, all the right, title, and interest of Apex Sweden inand to the New Sweden 1 Acquired Shares, free and clear of all Liens andRestrictions, other than Liens or Restrictions (i) created by thisAgreement or any of the other Transaction Documents, (ii) imposed byapplicable Law or the Governing Documents of New Sweden 1 generally on allshares of New Sweden 1, or (iii) existing under the FinancingDocuments;

### (b)           Sumitomo is purchasing from ApexSweden, and Apex Sweden is selling, transferring, assigning, conveying, anddelivering to Sumitomo, all the right, title, and interest of Apex Sweden inand to the New Sweden 2 Acquired Shares, free and clear of all Liens andRestrictions, other than Liens or Restrictions (i) created by thisAgreement or any of the other Transaction Documents, (ii) imposed byapplicable Law or the Governing Documents of New Sweden 2 generally on allshares of New Sweden 2, or (iii) existing under the FinancingDocuments; and

### (c)           Sumitomo is purchasing from ApexLuxembourg, and Apex Luxembourg is selling, transferring, assigning, conveying,and delivering to Sumitomo, all the right, title, and interest of Apex Luxembourgin and to the New Cayman Acquired Shares, free and clear of all Liens andRestrictions, other than Liens or Restrictions (i) created by thisAgreement or any of the other Transaction Documents, (ii) imposed byapplicable Law or the Governing Documents of New Cayman generally on all sharesof New Cayman, or (iii) existing under the Financing Documents.

## Section 2.2             PurchasePrice  Simultaneously with executionand delivery of this Agreement, Sumitomo is (a) paying or causing to bepaid to Apex Sweden and Apex Luxembourg US$224,000,000.00 (the “PurchasePrice”) by wire transfer of immediately available Dollar funds to suchaccount or accounts of Apex , as Apex Sweden and/or Apex Luxembourg hasspecified to Sumitomo prior to the date hereof and (b) agreeing to makepayments to Apex Sweden at the times, in the amounts, and otherwise inaccordance with and on the terms set forth in the Deferred Payments Agreement(the “Deferred Payments”).

## Section 2.3             Allocationof Purchase Price.  The Parties shallallocate the Purchase Price among the New Sweden 1 Acquired Shares, theNew Sweden 2 Acquired Shares, the New Cayman Acquired Shares, and the ASCBolivia Acquired Assets as specified on Schedule E for

19

----

 

all purposes; provided that such allocations areconsistent with Law (including financial reporting and Tax Law).  The Parties covenant and agree that(a) such allocation was determined in an arm’s length negotiation and noneof the Parties shall take a position on any Tax Return before any Tax Authorityor in any judicial proceeding that is in any way inconsistent with suchallocation without the prior written consent of the other Parties or unlessspecifically required pursuant to a determination by an applicable TaxAuthority; (b) they shall cooperate with each other in connection with thepreparation, execution, and filing of all Tax Returns related to suchallocation; and (c) they shall promptly advise each other regarding theexistence of any tax audit, controversy, or litigation related to such allocation.  The parties agree to treat any amountspayable pursuant ARTICLE VII, as an adjustment to the Purchase Price for Taxpurposes, unless the Law, pursuant to a determination by an applicable TaxAuthority, causes such a payment not to be treated as an adjustment to thePurchase Price for Tax purposes.

## Section 2.4             Closing.  The closing of the transactions contemplatedby this Agreement (the “Closing”) commenced at 9:00 a.m., GeorgeTown, Grand Cayman, Cayman Islands, British West Indies time in George Town,Grand Cayman, Cayman Islands, British West Indies, on date hereof (the “ClosingDate”).

## Section 2.5             ClosingDeliveries.

### (a)           Apex Closing Deliveries.  At the Closing, Apex, Apex Sweden, and ApexLuxembourg are delivering or causing to be delivered to Sumitomo:

#### (i)                                     oneor more certificates evidencing the New Sweden 1 Acquired Shares, dulyendorsed by Apex Sweden to Sumitomo, together with a copy of the shareholders’register of New Sweden 1 evidencing that Sumitomo has been entered thereinas holder of the New Sweden 1 Acquired Shares;

#### (ii)                               oneor more certificates evidencing the New Sweden 2 Acquired Shares, dulyendorsed by Apex Sweden to Sumitomo, together with a copy of the shareholders’register of New Sweden 2 evidencing that Sumitomo has been entered thereinas holder of the New Sweden 2 Acquired Shares;

#### (iii)                            oneor more certificates evidencing the New Cayman Acquired Shares, duly endorsedby Apex Luxembourg to Sumitomo, together with a copy of the shareholders’register of New Cayman evidencing that Sumitomo has been entered therein asholder of the New Cayman Acquired Shares;

#### (iv)                           counterpartsof the MSC Shareholders Agreement in the form attached hereto as Exhibit A(the “MSC Shareholders Agreement”), duly executed by Apex Luxembourg,Apex Sweden, Old Metals, New Sweden 1, and MSC;

20

----

 

#### (v)                                 counterpartsof the Metals Quotaholders Agreement in the form attached hereto asExhibit B (the “Metals Quotaholders Agreement”), duly executed byApex Sweden, New Sweden 2, and New Metals;

#### (vi)                              counterpartsof the Apex Silver Finance Shareholders Agreement in the form attached heretoas Exhibit C (the “New Cayman Shareholders Agreement”), dulyexecuted by Apex Luxembourg and New Cayman;

#### (vii)                        counterparts of the DisputeResolution Agreement in the form attached hereto as Exhibit G (the “DisputeResolution Agreement”), duly executed by Apex, Apex Luxembourg, ApexSweden, New Metals, Service Company, New Sweden 1, New Sweden 2, MSC,New Metals, and New Cayman;

#### (viii)                     counterparts of the MSC ManagementAgreement, duly executed by MSC and Service Company;

#### (ix)                             counterparts of the NewMetals Management Agreement, duly executed by New Metals, New Cayman, andService Company;

#### (x)                                counterparts of theDeferred Payments Agreement, duly executed by Apex Sweden;

#### (xi)                             counterparts of the OptionAgreement, duly executed by Apex;

#### (xii)                          a copy of the Apex DisclosureBundle, which copy has been reviewed and initialed by representatives of Apexin order to ensure that it is identical to the copies being retained by Apexand Sumitomo;

#### (xiii)                       the various certificates, instruments,and documents referred to in Section 6.2;

#### (xiv)                      counterparts of the New andAmended Financing Documents, duly executed by Apex and its Subsidiaries thatare parties thereto;

#### (xv)                         written letters of resignationfrom each of the current officers, if any, and members of the boards ofdirectors of New Sweden 1 and New Sweden 2 to be effectiveimmediately following the Closing;

#### (xvi)                      counterparts of the Metals HedgeNovation Agreements, duly executed by Old Metals and New Cayman;

#### (xvii)                   counterparts of the Old MetalsConcentrate Sales Agreement Termination, duly executed by Old Metals and MSC;

21

----

 

#### (xviii)                counterparts of the New ConcentrateSales Agreement, duly executed by New Metals and MSC;

#### (xix)                        a written letter of resignationfrom one director of MSC;

#### (xx)                           a copy of Articles ofAssociation of New Metals in the form of the German language version attachedas Exhibit A to the Metals Quotaholders Agreement;

#### (xxi)                        a copy of Articles ofAssociation of New Cayman in the form attached as Exhibit A to the New CaymanShareholders Agreement;

#### (xxii)                     counterparts of the ReimbursementAgreement, duly executed by Apex;

#### (xxiii)                  US$50,000.00 to Sumitomo by wiretransfer of immediately available Dollar funds to such account of Sumitomo asSumitomo has specified to Apex prior to the date hereof in respect of a feebeing paid by Apex to Sumitomo in connection with Sumitomo’s execution anddelivery of the Sumitomo Completion Agreement; 

#### (xxiv)                 the Apex Parent Guarantees, dulyexecuted by Apex; and

#### (xxv)                    such other documents andinstruments as Sumitomo has reasonably requested.

### (b)           SumitomoClosing Deliveries.  At the Closing,Sumitomo is delivering or causing to be delivered to Apex, Apex Sweden, andApex Luxembourg:

#### (i)            the Purchase Price;

#### (ii)           counterparts of the NewCayman Shareholders Agreement, duly executed by Sumitomo;

#### (iii)         theSumitomo Guaranty, duly executed by Sumitomo;

#### (iv)         counterpartsof the Dispute Resolution Agreement, duly executed by Sumitomo;

#### (v)          counterpartsof the Deferred Payments Agreement, duly executed by Sumitomo;

#### (vi)         counterpartsof the Option Agreement, duly executed by Sumitomo;

22

----

 

#### (vii)                        counterparts of theReimbursement Agreement, duly executed by Sumitomo;

#### (viii)                     a copy of the Apex DisclosureBundle, which copy has been reviewed and initialed by representatives ofSumitomo in order to ensure that it is identical to the copies being retainedby Apex and Sumitomo;

#### (ix)                             the various certificates,instruments, and documents referred to in Section 6.3;

#### (x)                                counterparts of the Newand Amended Financing Documents, duly executed by Sumitomo; and

#### (xi)                             such other documents andinstruments as Apex has reasonably requested.

## Section 2.6             MOU.  Sumitomo and Apex hereby agree that upon theexecution and delivery of this Agreement by the Parties, the MOU is hereby terminated,and this Agreement and the other Transaction Documents contain, and areintended as, a complete statement of all of the terms of the agreements betweenthe Parties and the other parties thereto with respect to the matters providedfor in the MOU, and supersede and discharge the MOU.

# **ARTICLEIIITRANSACTION REPRESENTATIONS AND WARRANTIES**

## Section 3.1             Apex’s Representations andWarranties.  Apex represents andwarrants with respect to itself, Apex Sweden, Apex Luxembourg, Old Metals, andService Company to Sumitomo that the statements contained in this Section 3.1are true, correct, and complete as of the date of this Agreement (except to theextent such representation and warranty specifically speaks as of a differentdate).

### (a)           Organization.  It is dulyorganized, validly existing, and, to the extent applicable in its jurisdictionof organization, in good standing, under the Laws of its jurisdiction oforganization.

### (b)           Powerand Authority.  (i) It has allrequisite corporate or other Entity power and authority to enter into, and toperform its obligations under, this Agreement and each Transaction Documentbeing or to be executed and delivered by it pursuant to this Agreement; and(ii) the execution and delivery by it of this Agreement and each TransactionDocument to which it is or shall be a party, and the performance by it of itsobligations under this Agreement and each Transaction Document to which it isor shall be a party, have been duly authorized by all requisite corporate orother Entity action.

### (c)           Validity.  Each of this Agreement and the otherTransaction Documents being or to be executed and delivered by it has been dulyexecuted and delivered by it, and assuming the due execution and delivery byeach other party hereto and thereto, this

23

----

 

### Agreement constitutes, and when executed and delivered by it pursuantto this Agreement, each Transaction Document being or to be executed anddelivered by it shall constitute, its legal, valid, and binding obligation,enforceable against it in accordance with its terms, except as suchenforceability may be affected by applicable bankruptcy, reorganization,insolvency, moratorium, or similar Laws affecting creditors’ rights generally.

### (d)           Consents.  Except for any required Authorizations andGovernment Approvals set forth in Section 3.1(d) of the Apex DisclosureSchedule or that have been obtained or made, no Authorization or GovernmentApproval is required, on behalf of it in connection with the execution,delivery, or performance by it of this Agreement or any of the otherTransaction Documents being or to be executed and delivered by it, or theconsummation of the transactions contemplated hereby and thereby.

### (e)           NoConflicts.  Assuming theAuthorizations and Government Approvals set forth in Section 3.1(d) of theApex Disclosure Schedule will be obtained or made, the execution and deliveryby it of this Agreement and the other Transaction Documents being or to beexecuted and delivered by it do not, and the performance by it of itsobligations under this Agreement and the other Transaction Documents being orto be executed and delivered by it and the consummation of the transactionscontemplated hereby and thereby do not and shall not, (i) violate orconflict with any provision of its Governing Documents; (ii) violate anyof the terms, conditions, or provisions of any Law or Government Approval towhich it is subject or by which it or any of its assets is bound;(iii) result in a violation or breach of, or (with or without the givingof notice or lapse of time or both) constitute a default (or give rise to anyright of termination or cancellation) under, or give rise to or accelerate anymaterial obligation under, or pursuant to, any material Contract to which it isa party or by which it or any of its assets is bound; or (iv) result in aLien or Restriction (other than any Lien or Restriction of the type referred toin the first sentences of Section 3.1(l) and Section 3.1(o)) on any of the New Sweden 1 AcquiredShares, the New Sweden 2 Acquired Shares, or the New Cayman AcquiredShares.

### (f)            Brokers’and Finders’ Fees.  There is nobroker, finder, investment banker, or similar intermediary that has beenretained by, or is authorized to act on behalf of, it or any of its Affiliatesor any of their respective officers or directors who shall be entitled to anyfee or commission in connection with this Agreement or any other TransactionDocument or upon consummation of the transactions contemplated hereby orthereby and which fee or commission could be or become a liability of Sumitomo,any of Sumitomo’s Affiliates, MSC, Old Metals, New Metals, New Cayman, oreither Acquired Entity.

### (g)           Capitalizationof New Sweden 1.  (i) NewSweden 1 has an issued and registered share capital of SEK 100,000divided into 1,000 issued and outstanding shares, all in a single series,with no preference; (ii) the issued and outstanding shares of NewSweden 1 are as set forth on Schedule A-1, and the information setforth therein is true, correct, and complete; (iii) all of such issued andoutstanding shares are duly authorized, validly issued, fully paid, andnonassessable and not issued in violation of any

24

----

 

### Preemptive Rights; (iv) there are no other issued or outstandingcapital, subscriptions, options, warrants, puts, calls, trusts (voting orotherwise), rights, exchangeable or convertible securities, or othercommitments or agreements of any nature relating to the capital or othersecurities of or ownership interests in New Sweden 1 or obligating NewSweden 1, at any time or upon the happening of any event, to issue,transfer, deliver, sell, repurchase, redeem, or otherwise acquire, or cause tobe issued, transferred, delivered, sold, repurchased, redeemed, or otherwiseacquired, any of its share capital, other securities, or ownership interests orany phantom shares, phantom equity interests, or stock or equity appreciationrights, or other ownership interests in New Sweden 1 or obligating NewSweden 1 to grant, extend, or enter into any such subscription, option,warrant, put, call, trust, right, exchangeable or convertible security,commitment, or agreement.

### (h)           Capitalizationof New Sweden 2.  (i) NewSweden 2 has an issued and registered share capital of SEK 100,000divided into 1,000 issued and outstanding shares, all in a single series,with no preference; (ii) the issued and outstanding shares of NewSweden 2 are as set forth on Schedule A-1, and the information setforth therein is true, correct, and complete; (iii) all of such issued andoutstanding shares are duly authorized, validly issued, fully paid, andnonassessable and not issued in violation of any Preemptive Rights;(iv) there are no other issued or outstanding capital, subscriptions,options, warrants, puts, calls, trusts (voting or otherwise), rights, exchangeableor convertible securities, or other commitments or agreements of any naturerelating to the capital or other securities of or ownership interests in NewSweden 2 or obligating New Sweden 2, at any time or upon thehappening of any event, to issue, transfer, deliver, sell, repurchase, redeem,or otherwise acquire, or cause to be issued, transferred, delivered, sold,repurchased, redeemed, or otherwise acquired, any of its share capital, othersecurities, or ownership interests or any phantom shares, phantom equityinterests, or stock or equity appreciation rights, or other ownership interestsin New Sweden 2 or obligating New Sweden 2 to grant, extend, or enterinto any such subscription, option, warrant, put, call, trust, right,exchangeable or convertible security, commitment, or agreement.

### (i)            Capitalizationof MSC.  The share capital of MSC isBs.2,151,361,000.00, divided into 21,513,610 registered shares, all in asingle series, with no preference, all of which are issued andoutstanding.  The issued and outstandingshares of MSC are set forth on Schedule A-2, and the information setforth therein is true, correct, and complete. All of such issued and outstanding shares are duly authorized, validlyissued, fully paid, and nonassessable, and not issued in violation of anyPreemptive Rights.  Except as provided inthe Financing Documents and the New and Amended Financing Documents, there areno other issued or outstanding share capital, subscriptions, options, warrants,puts, calls, trusts (voting or otherwise), rights, exchangeable or convertiblesecurities, or other commitments or agreements of any nature relating to theshare capital or other securities of or ownership interests in MSC orobligating MSC, at any time or upon the happening of any event, to issue,transfer, deliver, sell, repurchase, redeem, or otherwise acquire, or cause tobe issued, transferred, delivered, sold, repurchased, redeemed, or otherwiseacquired, any of its share capital, other securities, or ownership interests orany

25

----

 

### phantom shares, phantom equity interests, or stock or equityappreciation rights, or other ownership interests in MSC or obligating MSC togrant, extend, or enter into any such subscription, option, warrant, put, call,trust, right, exchangeable or convertible security, commitment, or agreement.

### (j)            Capitalizationof New Metals.  (i) The capitalof New Metals is CHF 20,000, divided into two issued and outstandingquotas of a single series and with no preference; (ii) the issued andoutstanding quotas of New Metals are as set forth on Schedule A-2, andthe information set forth therein is true, correct, and complete;(iii) such issued and outstanding quotas are duly authorized, validlyissued, fully paid, and nonassessable, and not issued in violation of anyPreemptive Rights; and (iv) except as provided in the Financing Documentsand the New and Amended Financing Documents, there are no other issued oroutstanding capital, subscriptions, options, warrants, puts, calls, trusts(voting or otherwise), rights, exchangeable or convertible securities, or othercommitments or agreements of any nature relating to the capital or othersecurities of or ownership interests in New Metals or obligating New Metals, atany time or upon the happening of any event, to issue, transfer, deliver, sell,repurchase, redeem, or otherwise acquire, or cause to be issued, transferred,delivered, sold, repurchased, redeemed, or otherwise acquired, any of its sharecapital, other securities, or ownership interests or any phantom shares,phantom equity interests, or stock or equity appreciation rights, or otherownership interests in New Metals or obligating New Metals to grant, extend, orenter into any such subscription, option, warrant, put, call, trust, right,exchangeable or convertible security, commitment, or agreement.

### (k)           Capitalizationof New Cayman.  (i) New Caymanhas an issued and registered share capital of US$100 divided into 100 issuedand outstanding shares, all in a single series, with no preference;(ii) the issued and outstanding shares of New Cayman are as set forth onSchedule A-1, and the information set forth therein is true, correct, andcomplete; (iii) all of such issued and outstanding shares are dulyauthorized, validly issued, fully paid, and nonassessable; (iv) there areno other issued or outstanding capital, subscriptions, options, warrants, puts,calls, trusts (voting or otherwise), rights, exchangeable or convertiblesecurities, or other commitments or agreements of any nature relating to thecapital or other securities of or ownership interests in New Cayman orobligating New Cayman, at any time or upon the happening of any event, toissue, transfer, deliver, sell, repurchase, redeem, or otherwise acquire, orcause to be issued, transferred, delivered, sold, repurchased, redeemed, orotherwise acquired, any of its share capital, other securities, or ownershipinterests or any phantom shares, phantom equity interests, or stock or equityappreciation rights, or other ownership interests in New Cayman or obligatingNew Cayman to grant, extend, or enter into any such subscription, option,warrant, put, call, trust, right, exchangeable or convertible security,commitment, or agreement.

### (l)            Ownershipof Shares of New Sweden 1 and New Sweden 2.  Immediately prior to the Closing, Apex Swedenwas the sole owner, beneficially and of record, of, and had good and validtitle to, all of the issued and outstanding shares of New Sweden 1 and NewSweden 2 as set forth on Schedule A-1, free and clear of all Liens andRestrictions,

26

----

 

### other than Liens or Restrictions (i) created by this Agreement orany of the other Transaction Documents, (ii) imposed by applicable Law orby the Governing Documents of New Sweden 1 or New Sweden 2 generallyon all shares of New Sweden 1 and New Sweden 2, or (iii) existingunder the Financing Documents.  Suchshares of New Sweden 1 and New Sweden 2 include all voting anddividend rights and interests in respect of capital, and corporate funds of anykind, purpose, or denomination, such as reserve, revaluation, credit, profit,and dividend funds, whether accumulated or not, that have not been distributed,even if agreements are pending with regard to their distribution or to whichApex Sweden is otherwise entitled as the owner thereof as of the Closing Date,whether originating in the current fiscal year or any previous fiscalyear.  There are no voting trusts,proxies, powers of attorney, or other agreements or understandings with respectto the voting of such shares of New Sweden 1 or New Sweden 2, otherthan the Contracts listed in Section 3.1(1) Section 3.1(l)of the ApexDisclosure Schedule, true, correct, and complete copies of which have beenprovided to Sumitomo, the Financing Documents, and the Transaction Documents.

### (m)          Ownershipof Shares of MSC.  Apex Sweden is theowner, beneficially and of record, of, and has good and valid titleto, 13,983,846 registered shares of the issued and outstanding shares ofMSC, Apex Luxembourg is the owner, beneficially and of record, of and has goodand valid title to, one registered share of the issued and outstanding sharesof MSC, and New Sweden 1 is the owner, beneficially and of record, of, andhas good and valid title to, 7,529,763 registered shares of the issued andoutstanding shares of MSC as set forth on Schedule A-2, in each case freeand clear of all Liens and Restrictions, other than Liens or Restrictions(i) created by this Agreement or any of the other Transaction Documents,(ii) imposed by applicable Law or by the Governing Documents of MSCgenerally on all shares of MSC, or (iii) existing under the FinancingDocuments.  Such shares of MSC includeall voting and dividend rights and interests in respect of capital, andcorporate funds and patrimonial rights and account of any kind, purpose, ordenomination, such as special or legal reserve, revaluation, patrimonialadjustment, credit, profit, and dividend funds, whether accumulated or not,that have not been distributed, even if agreements are pending with regard totheir distribution or to which Apex Sweden, Apex Luxembourg, or NewSweden 1, as applicable, is otherwise entitled as the owner thereof as ofthe Closing Date, whether originating in the current business year or anyprevious business year.  There are novoting trusts, proxies, powers of attorney, or other agreements orunderstandings with respect to the voting of such shares of MSC, other than theContracts listed in Section 3.1(m) of the Apex Disclosure Schedule, true,correct, and complete copies of which have been provided to Sumitomo, the FinancingDocuments, and the Transaction Documents.

### (n)           Ownershipof Quotas of New Metals.  Apex Swedenis the owner, beneficially and of record, of, and has good and valid title to,one quota representing 65% of the issued and outstanding capital of New Metalsand New Sweden 2 is the owner, beneficially and of record, of, and hasgood and valid title to, one quota representing 35% of the issued andoutstanding capital of New Metals as set forth on Schedule A-2, in eachcase free and clear of all Liens and Restrictions, other than Liens orRestrictions

27

----

 

### (i) created by this Agreement or any of the other TransactionDocuments, (ii) imposed by applicable Law or by the Governing Documents ofNew Metals generally on all quotas of New Metals, or (iii) existing underthe Financing Documents.  No other quotasof New Metals are outstanding.  Suchquotas of New Metals include all voting and dividend rights and interests inrespect of capital, and corporate funds of any kind, purpose, or denomination,such as reserve, revaluation, credit, profit, and dividend funds, whetheraccumulated or not, that have not been distributed, even if agreements arepending with regard to their distribution or to which Apex Sweden or NewSweden 2, as applicable, is otherwise entitled as the owner thereof as ofthe Closing Date, whether originating in the current fiscal year or anyprevious fiscal year.**** There are no voting trusts, proxies, powers ofattorney, or other agreements or understandings with respect to the voting ofsuch quotas of New Metals, other than the Contracts listed inSection 3.1(n) of the Apex Disclosure Schedule, true, correct, andcomplete copies of which have been provided to Sumitomo, the FinancingDocuments, and the Transaction Documents.

### (o)           Ownershipof Shares of New Cayman.  Immediatelyprior to the Closing, Apex Luxembourg was the sole owner, beneficially and ofrecord, of, and had good and valid title to, all of the issued and outstandingshares of New Cayman as set forth on Schedule A-1, free and clear of allLiens and Restrictions, other than Liens or Restrictions (i) created bythis Agreement or any of the other Transaction Documents, (ii) imposed byapplicable Law or by the Governing Documents of New Cayman generally on allshares of New Cayman, or (iii) existing under the FinancingDocuments.  Such shares of New Caymaninclude all voting and dividend rights and interests in respect of capital, andcorporate funds of any kind, purpose, or denomination, such as reserve,revaluation, credit, profit, and dividend funds, whether accumulated or not,that have not been distributed, even if agreements are pending with regard totheir distribution or to which Apex Luxembourg is otherwise entitled as theowner thereof as of the Closing Date, whether originating in the current fiscalyear or any previous fiscal year.  Thereare no voting trusts, proxies, powers of attorney, or other agreements orunderstandings with respect to the voting of such shares of New Cayman, otherthan the Contracts listed in Section 3.1(o) of the Apex DisclosureSchedule, true, correct, and complete copies of which have been provided toSumitomo, the Financing Documents, and the Transaction Documents.

### (p)           Ownershipof MSC Subordinated Debt and ASC Bolivia Acquired Assets.  Apex Sweden is the holder of, and has goodand valid title to, the Apex Sweden MSC Subordinated Debt representing 65% ofthe aggregate outstanding principal amount of, and accrued and unpaid interest,if any, on, the Apex Sweden MSC Subordinated Debt and New Sweden 1 MSCSubordinated Debt, free and clear of all Liens and Restrictions, other thanLiens or Restrictions (i) created by this Agreement or any of the otherTransaction Documents, (ii) imposed by applicable Law generally on all theMSC Subordinated Debt, or (iii) existing under the FinancingDocuments.  New Sweden 1 is theholder of, and has good and valid title to, the New Sweden 1 MSCSubordinated Debt representing 35% of the aggregate outstanding principalamount of, and accrued and unpaid interest, if any, on, the Apex Sweden MSCSubordinated Debt and the New Sweden 1 MSC Subordinated Debt, free andclear of all Liens and Restrictions, other

28

----

 

### than Liens or Restrictions (i) created by this Agreement or any ofthe other Transaction Documents, (ii) imposed by applicable Law generallyon all the MSC Subordinated Debt, or (iii) existing under the FinancingDocuments.  ASC Bolivia is the owner of,and has good and valid title to, the ASC Bolivia Acquired Assets, free andclear of all Liens and Restrictions, other than (i) Liens and Restrictionscreated by this Agreement or any of the other Transaction Documents,(ii) imposed by applicable Law generally on the type of assetsconstituting the Transmission Line Loan Documents and (iii) existing underthe Financing Documents.

### (q)           LegalProceedings.  There is no LegalProceeding pending, or to Apex’s, knowledge, threatened against Apex, ApexSweden, Apex Luxembourg, Old Metals, or Service Company that (i) questionsthe validity of the Transaction Documents or the right of Apex, Apex Sweden, ApexLuxembourg, Old Metals, or Service Company to enter into them or to consummatethe transactions contemplated thereby or, (ii) except as disclosed in theperiodic reports and filings by Apex with the U.S. Securities and ExchangeCommission made on or before the date of this Agreement, if adverselydetermined, would reasonably be expected to have a Material Adverse Effect onApex, Apex Sweden, Apex Luxembourg, Old Metals, or Service Company.

## Section 3.2             Sumitomo’s Representations andWarranties.  Sumitomo represents andwarrants with respect to itself to Apex, Apex Sweden, and Apex Luxembourg thatthe statements contained in this Section 3.2 are true, correct, and complete asof the date of this Agreement (except to the extent such representation andwarranty specifically speaks as of a different date).

### (a)           Organization.  It is duly organized, validly existing, and,to the extent applicable in its jurisdiction of organization, in good standing,under the Laws of its jurisdiction of organization.

### (b)           Powerand Authority.  (i) It has allrequisite corporate or other Entity power and authority to enter into, and toperform its obligations under, this Agreement and each Transaction Documentbeing or to be executed and delivered by it pursuant to this Agreement; and(ii) the execution and delivery by it of this Agreement and eachTransaction Document to which it is or shall be a party, and the performance byit of its obligations under this Agreement and each Transaction Document towhich it is or shall be a party, have been duly authorized by all requisitecorporate or other Entity action.

### (c)           Validity.  Each of this Agreement and the otherTransaction Documents being or to be executed and delivered by it has been, orshall be, duly executed and delivered by it, and assuming the due execution anddelivery by each other party hereto and thereto, this Agreement constitutes,and when executed and delivered by it pursuant to this Agreement, eachTransaction Document being or to be executed and delivered by it shall constitute,its legal, valid, and binding obligation, enforceable against it in accordancewith its terms, except as such enforceability may be affected by applicablebankruptcy, reorganization, insolvency, moratorium, or similar Laws affectingcreditors’ rights generally.

29

----

 

### (d)           Consents.  Except for any required Authorizations andGovernment Approvals set forth in Section 3.2(d) of the SumitomoDisclosure Schedule or that have been obtained or made, no Authorization orGovernment Approval is required, on behalf of it in connection with theexecution, delivery, or performance by it of this Agreement or the otherTransaction Documents being or to be executed and delivered by it, or theconsummation of the transactions contemplated hereby and thereby.

### (e)           NoConflicts.  Assuming theAuthorizations and Government Approvals set forth in Section 3.2(d) of theSumitomo Disclosure Schedule will be obtained or made, the execution anddelivery by it of this Agreement and the other Transaction Documents being orto be executed and delivered by it do not, and the performance by it of itsobligations under this Agreement and the other Transaction Documents being orto be executed and delivered by it and the consummation of the transactionscontemplated hereby and thereby do not and shall not, (i) violate orconflict with any provision of its Governing Documents; (ii) violate anyof the terms, conditions, or provisions of any Law or Government Approval towhich it is subject or by which it or any of its assets is bound; or (iii) resultin a violation or breach of, or (with or without the giving of notice or lapseof time or both) constitute a default (or give rise to any right of terminationor cancellation) under, or give rise to or accelerate any material obligationunder, or pursuant to, any material Contract to which it is a party or by whichit or any of its assets is bound.

### (f)            Brokers’and Finders’ Fees.  There is nobroker, finder, investment banker, or similar intermediary that has beenretained by, or is authorized to act on behalf of, it or any of its Affiliatesor any of their respective officers or directors who shall be entitled to anyfee or commission in connection with this Agreement or any other TransactionDocument or upon consummation of the transactions contemplated hereby orthereby and which fee or commission could be or become a liability of Apex orany of its Affiliates, including MSC, New Metals, and New Cayman.

### (g)           NoExternal Financing.  Sumitomo doesnot require any third-party financing to complete the transactionscontemplated by this Agreement, including the payment of the Purchase Price toApex, or perform its obligations under the other Transaction Documents,including the funding of additional share capital or loans to MSC, New Metals,or New Cayman in connection with the Project or otherwise under the MSCShareholders Agreement, Metals Quotaholders Agreement, or the New CaymanShareholders Agreement, as applicable.

### (h)           InvestmentIntent.  Sumitomo is not acquiringthe New Sweden 1 Acquired Shares, the New Sweden 2 Acquired Shares,or the New Cayman Acquired Shares with a view to or for sale in connection withany distributions thereof within the meaning of the U.S. Securities Actof 1933, as amended.

### (i)            LegalProceedings.  There is no LegalProceeding pending, or to Sumitomo’s knowledge, threatened against it that(i) questions the validity of the Transaction Documents or the right of itto enter into them or to consummate the

30

----

 

### transactions contemplated thereby or (ii) if adversely determined,would reasonably be expected to (A) have a material adverse effect on orchange to the condition (financial or otherwise), business, performance,operations, or properties of Sumitomo and its Subsidiaries, taken as a whole,except to the extent that such effect or change is attributable to or resultsfrom (1) changes affecting generally the securities or capital markets oreconomic conditions in the country or countries in which it conducts itsbusiness, (2) changes affecting generally the industries in which itoperates (as opposed to changes affecting any such Entity or group of Entitiesspecifically, predominantly, or disproportionately), (3) changes in thecountry or countries in which it conducts its business affecting generally theindustries in which it operates (as opposed to changes affecting any suchEntity or group of Entities specifically, predominantly, ordisproportionately), (4) the effect of the public announcement of thisAgreement or the pendency of the transactions contemplated hereby and by theother Transaction Documents, or (5) changes in generally acceptedaccounting principles in the U.S. or elsewhere or (B) have a materialadverse effect on its ability to perform its obligations under, and toconsummate the transactions contemplated by, the Transaction Documents.

# **ARTICLEIVREPRESENTATIONS AND WARRANTIESREGARDING ACQUIRED ENTITIES, MSC, OLD METALS, NEW METALS, ANDNEW CAYMAN**

Apex represents and warrants to Sumitomo that thestatements contained in this ARTICLE IV are true, correct, and complete as ofthe date of this Agreement (except to the extent such representation andwarranty specifically speaks as of a different date).

## Section 4.1             Organization, Good Standing,Authority, Governing Documents, Books and Records.  

### (a)           EachAcquired Entity is a *privat aktiebolag*.  MSC is a *sociedad anónima*.  New Metals is a *Gesellschaftmit beschränkter Haftung*.  NewCayman is an exempted company limited by shares.

### (b)           MSC(i) is duly organized, validly existing, and, to the extent applicableunder the Laws of its jurisdiction of organization, in good standing under theLaws of its jurisdiction of organization, (ii) has all requisite corporateor other Entity power and authority to own its properties and to carry on itsbusiness as now being conducted, including to construct, develop, and operatethe Project as contemplated in the Development Plan, and (iii) is dulyqualified and in good standing to do business in each jurisdiction wherenecessary in light of the business it conducts and the property it owns, exceptwhere the failure to be so qualified and in good standing would not reasonablybe expected to have a Material Adverse Effect on it.

### (c)           Eachof New Metals, New Cayman, and the Acquired Entities (i) is dulyorganized, validly existing, and, to the extent applicable under the Laws ofits jurisdiction of organization, in good standing under the Laws of itsjurisdiction of organization,

31

----

 

### (ii) has all requisite corporate or other Entity power andauthority to own its properties and to carry on its business as then beingconducted, and (iii) is duly qualified and in good standing to do businessin each jurisdiction where necessary in light of the business it conducts andthe property it owns, except where the failure to be so qualified and in goodstanding would not reasonably be expected to have a Material Adverse Effect onit.

### (d)           Apexhas made available to Sumitomo true, correct, and complete copies of(i) the Governing Documents of each of MSC, Old Metals, New Metals, NewCayman, and the Acquired Entities, including all amendments thereto, aspresently in effect; (ii) all share or equity interest records of each ofMSC, Old Metals, New Metals, New Cayman, and the Acquired Entities, includingMSC’s share ledger and copies of any share certificates (front and back) issuedby MSC, Old Metals’ quota ledger, New Metals’ quota ledger, New Cayman’s shareledger and copies of any share certificates issued by New Cayman, and eachAcquired Entity’s share ledger and copies of any share certificates issued byeach Acquired Entity; and (iii) all minutes and other records of allmeetings or actions taken by written consent or otherwise without a meeting of(A) the shareholders of each of MSC, New Cayman, and the AcquiredEntities, (B) the quotaholders of each of Old Metals and New Metals,(C) the boards of directors of each of MSC, New Cayman, and the AcquiredEntities, (D) the management board of each of Old Metals and New Metals,and (E) all committees of each such board of directors or management board(collectively, the “Minute Books”). The Minute Books contain a true, correct, and complete record, in allmaterial respects, of all material actions taken at all meetings and by allwritten consent or otherwise without a meeting of such Entity’s shareholders orquotaholders, as applicable, such Entity’s board of directors or managementboard, as applicable, and any committees of such Entity’s board of directors ormanagement board, as applicable and such actions were taken in accordance withsuch Entity’s Governing Documents in effect at the time of such action.

## Section 4.2             Consents; No Conflicts.

### (a)           Exceptfor any required Authorizations and Government Approvals set forth in Section4.2(a) of the Apex Disclosure Schedule or that have been obtained or made, noAuthorization or Government Approval is required on behalf of MSC, New Metals,or New Cayman in connection with any of the Transaction Documents being or tobe executed and delivered by MSC, New Metals, or New Cayman, or theconsummation of the transactions contemplated hereby and thereby.

### (b)           Theexecution and delivery of the Transaction Documents being or to be executed anddelivered by MSC, New Metals, or New Cayman do not, and the consummation of thetransactions contemplated thereby do not and shall not, (i) violate orconflict with any provision of the Governing Documents of MSC, New Metals, orNew Cayman; (ii) violate any of the terms, conditions, or provisions ofany Law or Government Approval to which MSC, New Metals, or New Cayman issubject or by which MSC, New Metals, or New Cayman, or any of their respectiveassets, is bound; (iii) result in a violation or breach of, or (with orwithout the giving of notice or lapse of time or both) constitute a default (orgive rise to any right of termination or cancellation)

32

----

 

### under, or give rise to or accelerate any material obligation under, orpursuant to, any Scheduled Contract to which MSC, New Metals, or New Cayman isa party or by which MSC, New Metals, or New Cayman, or any of their respectiveassets, is bound; or (iv) result in any Lien or Restrictions (other thanany Lien or Restriction created by this Agreement or any of the otherTransaction Documents) on any capital stock of any of MSC, New Metals, NewCayman, and the Acquired Entities, or on any of their respective assets.

## Section 4.3             Consents and Approvals for theProject.

### (a)           Tothe knowledge of Apex, all material (i) Government Approvals,(ii) Authorizations, (iii) Mining Concessions, (iv) OtherProperty Rights, and (v) Intellectual Property Rights, necessary in eachcase for the development, construction, and operation of the Project inaccordance with the Development Plan are set forth in Section 4.3(a) ofthe Apex Disclosure Schedule.

### (b)           Tothe knowledge of Apex, each of the (i) Government Approvals, (ii) Authorizations,(iii) Mining Concessions, (iv) Other Property Rights, and(v) Intellectual Property Rights set forth in Part A ofSection 4.3(a) of the Apex Disclosure Schedule has been obtained and is infull force and effect.  Collectively, tothe knowledge of Apex, such Government Approvals, Authorizations, MiningConcessions, Other Property Rights, and Intellectual Property Rights aresufficient to permit (A) the development, construction, and operation ofthe Project in all material respects as contemplated by the Development Planand (B) the performance by each of MSC, New Metals, and New Cayman of itsobligations under the Material Project Documents, in each case, with respect tosuch Government Approvals, Authorizations, Mining Concessions, Other PropertyRights, and Intellectual Property Rights, other than those that (1) arenot now necessary and which are expected to be obtained in the ordinary courseof business by the time they are necessary (and that are listed in Part B ofSection 4.3(a) of the Apex Disclosure Schedule) or (2) the failure tohave or obtain would not reasonably be expected to have a Material AdverseEffect on MSC, New Metals, or New Cayman.

### (c)           Tothe knowledge of Apex, MSC is in compliance (i) in all material respectswith all terms and conditions of all of the Mining Concessions and (ii) inall material respects, with all terms and conditions of all of such GovernmentApprovals, Authorizations, Other Property Rights, and Intellectual PropertyRights, in each case under clauses (i) and (ii), listed in Part A ofSection 4.3(a) of the Apex Disclosure Schedule.

## Section 4.4             Subsidiaries.  None of MSC, New Metals, New Cayman, or theAcquired Entities has any Subsidiary or owns, otherwise Controls, or, to theknowledge of Apex, has any right to acquire, directly or indirectly, anycapital stock of, or other equity interests in, any Entity (except that NewSweden 1 owns shares of, and has Preemptive Rights in respect of, MSC, andNew Sweden 2 owns a quota of, and has Preemptive Rights in respect of, NewMetals).  Except as set forth inSection 4.4 of the Apex Disclosure Schedule, none of MSC, New Metals, New

33

----

 

## Cayman, or the Acquired Entities owns or, tothe knowledge of Apex, has any right to acquire, directly or indirectly, anydebt securities, or any other Indebtedness, of any Entity (except in respect ofthe net obligations, if any, of the Entities that are counterparties of NewCayman under the Mandatory Metals Hedge Agreements, and Indebtedness between oramong any of MSC, New Metals, and New Cayman).

## Section 4.5             Financial Statements; NoUndisclosed Liabilities; No Material Adverse Effect.

### (a)           Apexhas delivered to Sumitomo (i) the audited separate balance sheets (the “AuditedBalance Sheets”) of MSC as of September 30, 2004 and 2005, and ofOld Metals as of December 31, 2005, (ii) the audited separatestatements of income and cash flows of MSC for the fiscal years ended onSeptember 30, 2004 and 2005, and of Old Metals for the fiscal yearended on December 31, 2005, (iii) the unaudited separate balancesheets of MSC and Old Metals as of June 30, 2006 (the “UnauditedBalance Sheet Date”) and the unaudited separate balance sheets of NewMetals and New Cayman as of August 31, 2006 (the “Unaudited SeparateBalance Sheet Date”), and (iv) the unaudited separate statements ofincome and cash flows of MSC for the nine months ended on June 30, 2006,and of Old Metals for the six months ended on June 30, 2006 (the foregoingfinancial statements, collectively, the “Financial Statements,” true, correct,and complete copies of all of which are included as Section 4.5(a) of theApex Disclosure Bundle).

### (b)           Except(i) as set forth in Section 4.5(b) of the Apex Disclosure Schedule,(ii) as described in the notes to the Financial Statements that are audited,(iii) to the extent that the unaudited interim statements do not includefootnotes and other presentation items as required by GAAP, and (iv) inthe case of the unaudited statements, for normal, year-end adjustments(which shall not be material individually or in the aggregate), the FinancialStatements have been prepared in accordance with GAAP applied on a consistentbasis and fairly present the separate financial condition and results ofoperations and cash flows of MSC, Old Metals, New Metals, and New Cayman as ofthe respective dates thereof and for the respective periods indicated therein.

### (c)           Exceptfor (i) any liabilities set forth in Section 4.5(c) of the ApexDisclosure Schedule, (ii) liabilities set forth or provided for on theFinancial Statements (including liabilities the amounts of which are set forthnumerically in the notes thereto), (iii) liabilities that have arisenafter the Unaudited Balance Sheet Date in the ordinary course of businessconsistent with past practice, (iv) liabilities under the FinancingDocuments to which MSC, Old Metals, New Metals, or New Cayman is a party or theScheduled Contracts, to the extent that the existence of such liabilities isreasonably ascertainable solely by reference to such Financing Documents orScheduled Contracts, (v) Indebtedness set forth in Section 4.5(c) ofthe Apex Disclosure Schedule of the type defined in clauses (a) and (c),and clause (g) as it applies to clause (a) and (c), of the definitionof Indebtedness, and (vi) liabilities that have not had, individually ortogether with other liabilities, a Material Adverse Effect on MSC, Old Metals,New Metals, or New Cayman, neither MSC, Old Metals, New Metals, nor New Caymanhas any material

34

----

 

### liability (whether known or unknown, whether asserted or unasserted,whether absolute or contingent, whether accrued or unaccrued, whetherliquidated or unliquidated, and whether due or to become due, including anyliability for Taxes).

### (d)           Sincethe Unaudited Balance Sheet Date, no event has occurred and no condition existsthat, individually or together with other events and conditions, has had aMaterial Adverse Effect on MSC and Old Metals.

### (e)           Sincethe Unaudited Separate Balance Sheet Date, no event has occurred and nocondition exists that, individually or together with other events andconditions, has had a Material Adverse Effect on New Metals and New Cayman.

### (f)            SinceJune 30, 2006, no event has occurred and no condition exists that,individually or together with other events and conditions, has had a MaterialAdverse Effect on Apex.

## Section 4.6             Title to Properties.  To the knowledge of Apex, (a) MSC hasgood, legal, and valid title to (or, in the case of any leased premises,easement properties or licensed property, valid leasehold, easement, or licenseinterests in) all real and personal property (including the Mining Concessions)and all rights, tangible or intangible (including Intellectual Property Rightsand Other Property Rights), now required for the construction and operation ofthe Project substantially as contemplated by the Development Plan; and(b) there are no Liens of any nature against such properties or rights(other than (i) Permitted Liens and (ii) such Liens as are set forthin Section 4.6 of the Apex Disclosure Schedule), in each case, exceptwhere such failure of title or the existence of such Liens would not have aMaterial Adverse Effect on MSC or the Project.

## Section 4.7             Material Contracts.

### (a)           AllMaterial Project Documents to which MSC is a party as of the date hereof, all OperationalAgreements to which New Metals is a party as of the date hereof, all MandatoryMetals Hedge Agreements, and all Third Party Concentrate Sales Agreements arelisted on Section 4.7(a) of the Apex Disclosure Schedule (the “ScheduledContracts”).

### (b)           Tothe knowledge of Apex, there are no material services, materials, or rights(other than Government Approvals and Authorizations) required for the currentstage of the development, financing, construction, operation, and ownership ofthe Project, other than those granted by, or to be provided to MSC pursuant tothe Scheduled Contracts.

### (c)           Exceptfor the amendments, modification, or supplements of the Scheduled Contractsbeing entered into on the date hereof, none of the Scheduled Contracts havebeen amended, modified, or supplemented, and, to the knowledge of Apex, all ofthe Scheduled Contracts are in full force and effect, except as suchenforceability may be affected by applicable bankruptcy, reorganization,insolvency,

35

----

 

### moratorium, or similar Laws affecting creditors’ rights generally (andApex and its Subsidiaries have no knowledge of any fact or circumstance thathas occurred that would make any such Laws applicable), and have not beenterminated, suspended, or rescinded by any party thereto.

### (d)           Tothe knowledge of Apex, all conditions precedent to the obligations of therespective parties under the Scheduled Contracts have been satisfied or waivedexcept for such conditions precedent that need not or cannot be satisfied untila later stage of development, financing, construction, operation, and ownershipof the Project, and Apex and its Subsidiaries have no reason to believe thatany such condition precedent cannot be satisfied on or prior to thecommencement of the appropriate state of development, financing, construction,operation, and ownership of the Project, except as otherwise set forth onSection 4.7(d) of the Apex Disclosure Schedule.

### (e)           NoSubsidiary of Apex is in default in the performance of any covenant orobligation set forth in, or otherwise in default under, any of the ScheduledContracts to which it is a party, which default would reasonably be expected toresult in a Material Adverse Effect on MSC, Old Metals, New Metals, or NewCayman.  There exists no default underthe MSC Subordinated Debt by MSC, nor any event which, with notice or lapse oftime or both, would constitute a default thereunder by MSC.  The outstanding principal amount of the MSCSubordinated Debt is US$208,387,865.00. To the knowledge of Apex, there has been no default by any counterpartyunder, and no Event of Force Majeure (as defined in the Common SecurityAgreement) has occurred under, any Scheduled Contract, which in either casewould reasonably be expected to have a Material Adverse Effect on MSC, Old Metals,New Metals, or New Cayman.

### (f)            TheApex Disclosure Bundle includes true, correct, and complete copies of theScheduled Contracts and of any amendments to any of the foregoing except forcopies of confirmations under the Mandatory Metals Hedge Agreements.

## Section 4.8             Employees; Employee Benefits.

### (a)           Section 4.8(a)of the Apex Disclosure Schedule contains a true, correct, and complete list ofall employment or employment-related or consulting Contracts to which MSC, OldMetals, New Metals, or New Cayman is a party with any current executive officeror director of MSC, Old Metals, New Metals, or New Cayman that are currently ineffect.  To the knowledge of Apex, noexecutive officer, key employee, or significant group of employees plans toterminate employment with MSC, New Metals, or New Cayman during thenext 12 months.

### (b)           Section 4.8(b)of the Apex Disclosure Bundle includes a true, correct, and complete copy ofeach collective bargaining agreement relating to or affecting MSC, Old Metals,New Metals, or New Cayman or any employee of MSC, Old Metals, New Metals, orNew Cayman.  Except as set forth inSection 4.8(b) of the Apex Disclosure Schedule and except for suchexceptions as have not had, and would not reasonably be expected to have, aMaterial Adverse Effect on MSC, Old Metals, New Metals, or New

36

----

 

### Cayman, (i) there is not occurring, and there has not occurredduring the previous five years, or, to the knowledge of Apex, there has notbeen threatened, any strike, slow-down, picket, work stoppage, or otherconcerted action by any union or other group of employees or other Personsagainst either MSC, Old Metals, New Metals, or New Cayman or their respectivepremises or products; (ii) there are, and during the previous five yearshave been, no complaints or grievances known to Apex, by any union, othergroup, or class of employees or other Persons which are unsettled orunresolved; and (iii) to the knowledge of Apex, no other union or labororganization has attempted to organize any of the employees of MSC, Old Metals,New Metals, or New Cayman.

### (c)           Exceptas set forth in Section 4.8(c)  ofthe Apex Disclosure Schedule and subject to the exceptions set forth inSection 4.5(c), none of MSC, Old Metals, New Metals, New Cayman, or anyERISA Affiliate has incurred or reasonably expects to incur any materialliability (whether known or unknown, whether asserted or unasserted, whetherabsolute or contingent, whether accrued or unaccrued, whether liquidated orunliquidated, and whether due or to become due) with respect to any EmployeeBenefit Plan that would reasonably be expected have a Material Adverse Effecton MSC, Old Metals, New Metals, New Cayman, or the Project.

## Section 4.9             Legal Compliance.  Except as set forth in Section 4.9 ofthe Apex Disclosure Schedule, (a) to the knowledge of Apex, each of Apexand its Subsidiaries is in compliance with, and has conducted its business,including in the case of MSC and the Project, so as to comply with, the termsof all Government Approvals and Laws applicable to it, including applicableanti-corruption Laws in force in Bolivia, the Republic of Chile, U.S.,Sweden, Switzerland, Peru, Argentina, and Mexico; (b) to the knowledge ofApex, each of MSC, Old Metals, New Metals, New Cayman, and the AcquiredEntities has all Government Approvals that are required to operate itsbusiness, and (c) none of MSC, Old Metals, New Metals, New Cayman, and theAcquired Entities has any Legal Proceeding, claim, demand, or notice filed orcommenced against it alleging any failure to so comply, in each case exceptwhere the failure to so comply or to have such Government Approvals has nothad, or would not reasonably be expected to have, a Material Adverse Effect onMSC, Old Metals, New Metals, New Cayman, or either Acquired Entity.

## Section 4.10           Taxes.  Each of MSC, OldMetals, New Metals, New Cayman, and the Acquired Entities has timely filed orcaused to be filed all Tax Returns required to have been filed and has paid orcaused to be paid all Taxes shown as due and payable on such Tax Returns,except (a) Taxes that are being contested in good faith by appropriateproceedings diligently conducted and for which such Entity has set aside on itsbooks adequate reserves (as determined by generally accepted accountingprinciples as used in the U.S.), (b) as set forth in Section 4.10 ofthe Apex Disclosure Schedule, or (c) to the extent that the failure to doso has not had, and would not reasonably be expected to have, a MaterialAdverse Effect on it.  There are nomaterial disputes pending or, to the knowledge of Apex, threatened, between anyof MSC, Old Metals, New Metals, New Cayman, and the Acquired Entities, and anyTax Authority relating to Taxes.  Withrespect to the corporate and tax restructuring that has occurred prior to theClosing, Section 4.10 of the Apex Disclosure Schedule sets forth acomplete and accurate description of all the material steps and actions takenin connection with such restructuring. In connection with

37

----

 

## such restructuring, Apex has, and has caused its Subsidiaries to, takeonly the steps set forth in such section of the Apex Disclosure Schedule.

## Section 4.11           Legal Proceedings.  Except as set forth in Section 4.11 of the Apex DisclosureSchedule, there is no Legal Proceeding pending, or to the knowledge of Apex, threatenedin writing relating to MSC, Old Metals, New Metals, or New Cayman, which hashad, and would reasonably be expected to have, a Material Adverse Effect onMSC, Old Metals, New Metals, or New Cayman. None of MSC, Old Metals, New Metals, or New Cayman is subject to anyJudgment, which has had, and would reasonably be expected to have, a MaterialAdverse Effect on MSC, Old Metals, New Metals, or New Cayman.

## Section 4.12           Environmental Matters.

### (a)           Tothe knowledge of Apex, the development, construction, and operation of theProject and the activities and properties of MSC are in compliance in allmaterial respects with (i) the Environmental Guidelines, (ii) allapplicable Environmental Laws, and (iii) all environmental GovernmentApprovals.  To the knowledge of Apex, MSChas designed the Project in compliance in all material respects with theEnvironmental Guidelines.

### (b)           Nonotice, notification, demand, citation, summons, or order has been issued anddelivered to MSC, no written complaints have been filed and notice thereofserved on MSC, no penalty has been assessed, and, to the knowledge of Apex, noinvestigation or review is pending or threatened by any Governmental Authorityor other Person with respect to any alleged failure by MSC to have any materialenvironmental Government Approval or to comply with any applicableEnvironmental Law.

## Section 4.13           Interested Party Transactions.  Other than transactions required or permittedby this Agreement or the other Transaction Documents, Section 4.13of the Apex Disclosure Schedule lists all transactions and Contracts betweenApex or any of its Subsidiaries (other than MSC, New Metals, or New Cayman), onthe one hand, and MSC, New Metals, or New Cayman, on the other hand, in eachcase that involves consideration of US$500,000 or more and has not yet beenfully performed.

## Section 4.14           Insurance.  Each of MSC, New Metals, and New Caymanmaintain with financially sound and reputable insurers, insurance with respectto its properties and business against such casualties and contingencies and insuch amounts as are usually carried by businesses engaged in similar activitiesas MSC, New Metals, and New Cayman and located in similar geographic areas inwhich MSC, New Metals, and New Cayman operate.

## Section 4.15           Financing Documents.  Section 4.15 of the Apex DisclosureSchedule sets forth a correct and complete list of all Financing Documents towhich Apex or any of its Subsidiaries is a party and of all other Contracts(except Scheduled Contracts and the New and Amended Financing Documents)pursuant to which Apex or any of its Subsidiaries is required to provide creditsupport in respect of the Project or any of MSC, Old Metals, New Metals, or NewCayman.  True, correct, and completecopies of all such Financing Documents and other

38

----

 

## Contracts, including all amendments,supplements, modifications, and waivers thereof, are included asSection 4.15 of the Apex Disclosure Bundle.

## Section 4.16           No Default.  Except as disclosed in Section 4.16 ofthe Apex Disclosure Schedule, to the knowledge of Apex, no Default or Event ofDefault has occurred and is continuing.

## Section 4.17           Performance Security.  There are no letters of credit, performancebonds, or other types of performance security currently required to be postedand in full force and effect under the Financing Documents or the ScheduledContracts, other than those listed on Section 4.17 of the Apex DisclosureSchedule (the “Performance Security”). No drawing has been made under any of the Performance Security and, tothe knowledge of Apex, no event has occurred and currently exists that gives orreasonably could be expected to give any beneficiary of a Performance Securitythe right to draw thereunder.

## Section 4.18           Acquired Entities.  Immediately prior to the Closing, each of NewSweden 1 and New Sweden 2: (a) had no outstanding Indebtedness;(b) had no liabilities (whether known or unknown, whether asserted orunasserted, whether absolute or contingent, whether accrued or unaccrued,whether liquidated or unliquidated, and whether due or to become due, includingany liability for Taxes), except for any liabilities under the TransactionDocuments and the Financing Documents to which such Entity is a party;(c) owns no real or personal property except, with respect to New Sweden 1,an SEK 100,000 cash deposit with****SkandinaviskaEnskilda Banken (publ), shares of MSC, and the New Sweden 1 MSCSubordinated Debt, and, with respect to New Sweden 2, an SEK 100,000cash deposit with Skandinaviska Enskilda Banken (publ) and a quota of NewMetals; and (d) has no operations other than holding such properties andbeing a party to such Contracts.

## Section 4.19           No Liquidation; Intent.  None of MSC, New Metals, New Cayman, and theAcquired Entities has commenced any voluntary proceeding or filed any petition,and Apex is not aware of the commencement of any involuntary proceeding or thefiling of any involuntary petition, seeking (a) liquidation,reorganization, or other relief in respect of any of MSC, New Metals, NewCayman, or the Acquired Entities for its debts, or any substantial part of itsassets, under any applicable Law or (b) appointment of a receiver,trustee, custodian, sequestrator, conservator, or similar official for any suchEntity or for a substantial part of its assets. Apex and its Subsidiaries are not entering into the transactionscontemplated hereby or by any of the Transaction Documents with the intent tohinder, delay, or defraud any Person to which any such Entity is, or maybecome, indebted. 

## Section 4.20           Notices.  Apex has made available to Sumitomo true,correct, and complete copies of all material notices and other documentsdelivered under ARTICLE VI of the Common Security Agreement. 

## Section 4.21           Project Information and OtherInformation Furnished.  To theknowledge of Apex, the Project Information and other information, financialstatements, exhibits, and schedules furnished in writing by or on behalf ofApex to Sumitomo in connection with the negotiation, preparation, or deliveryof this Agreement and the other Transaction Documents or

39

----

 

## included herein or therein or deliveredpursuant hereto or thereto (including the documents included in the ApexDisclosure Bundle), considered together, do not contain any materialmisrepresentation or misstatement (or omit any material fact or circumstancenecessary in order to make the information contained therein not misleading);provided, that the only representations and warranties made by Apex to Sumitomounder this Section 4.21 in respect of projections, estimates, or other expressionsof view as to future circumstances included in the Apex Disclosure Bundle orsuch other information, financial statements, exhibits, and schedules is thatsuch projections, estimates, or other expression of view were prepared in goodfaith and were based on reasonable assumptions as to all factual and legalmatters materially related thereto as of their respective preparation dates.

# **ARTICLE VOTHER COVENANTS**

## Section 5.1             Confidentiality.  Each Party shall keep confidential, shallcause its Affiliates to keep confidential, and shall instruct its officers,directors, employees, and advisors to keep confidential, all informationreceived from the other Party as a result of any due diligence investigationconducted relating to the execution and delivery of this Agreement and theconsummation of the transactions contemplated by this Agreement or otherwise,except (i) as required by applicable securities or other Laws or stockexchange rules or administrative process, and (ii) for information that isor becomes generally available to the public other than as a result of a breachof this Section 5.1 (such information, subject to clauses (i) and (ii), “ConfidentialInformation”).  Except to the extentdeemed necessary or advisable by counsel to maintain compliance with, or toprevent violation of, applicable securities or other Laws or stock exchangerules, each Party shall keep the existence of and the provisions of thisAgreement and the other Transaction Documents confidential and shall disclosetheir contents only (1) to those lenders, investors, partners,shareholders, directors, officers, employees, and agents who need to know suchinformation for purposes of its businesses and the transactions contemplatedhereby, and (2) to Governmental Authorities and other Persons for purposesof obtaining approvals in connection with the transactions contemplatedhereby.  All Confidential Informationshall be treated as information covered by the Confidentiality Agreement, whichshall remain in full force and effect and shall not be modified or supersededin any way by this Agreement.

## Section 5.2             Expenses; Transfer Taxes; TaxCooperation.  Except as otherwisespecifically provided herein, all costs and expenses incurred in connectionwith this Agreement, the other Transaction Documents, and the transactionscontemplated hereby and thereby shall be paid by the Party incurring suchexpense.  Sumitomo shall pay all costsand expenses incurred in connection with the formation of New Sweden 1 andNew Sweden 2.  For the avoidance ofdoubt, the Parties agree that such costs and expenses shall exclude anyTaxes.  Sumitomo shall pay all transfer,documentary, sales, use, stamp, registration and other similar Taxes and fees(including any monetary adjustments, penalties and interest), but excluding anyother Taxes such as income, profits, excise, franchise or withholding taxes,incurred on the transfer by Apex Sweden to Sumitomo of the New Sweden 1Acquired Shares and the New Sweden 2 Acquired Shares.

40

----

## Section 5.3             Further Assurances.

### (a)           Fromtime to time, as and when requested by any Party, the other Parties shallexecute and deliver, or cause to be executed and delivered, all such documentsand instruments, and shall take, or cause to be taken, all such further orother actions, as the requesting Party may reasonably deem necessary ordesirable to consummate the transactions contemplated by this Agreement,including executing and delivering such assignments, consents, and otherinstruments the requesting Party may reasonably request as necessary ordesirable for such purpose.

### (b)           (i) TheParties shall use their commercially reasonable efforts to obtain the consentand approval of those Persons under the Transmission Line Loan Documents, theFinancing Documents, and the New and Amended Financing Documents whose consentand approval is required to consummate as promptly as practicable following theClosing, without any additional consideration hereunder therefor, (A) theassignment by ASC Bolivia to Sumitomo or its designated wholly-ownedSubsidiary of 35% of all the right, title, and interest of ASC Bolivia in andto the Transmission Line Loan Documents (the “ASC Bolivia Acquired Assets”),free and clear of all Liens and Restrictions, other than Liens or Restrictions(1) created by this Agreement or any of the other Transaction Documents,(2) imposed by applicable Law generally on the type of assets constitutingthe Transmission Line Loan Documents, or (3) existing under the FinancingDocuments or the Transaction Documents, and (B) the assumption by Sumitomoof 35% of all the liabilities and obligations of ASC Bolivia under theTransmission Line Loan Documents; provided, that, except as otherwisespecifically required by this Agreement, no loan agreement or Contract forborrowed money shall be repaid except as currently required by its terms, inwhole or in part, and no Contract shall be amended to increase the amountpayable thereunder or otherwise to be more burdensome to the Project, MSC, NewMetals, New Cayman, or ASC Bolivia in order to obtain any such consent orapproval without first obtaining the approval of Apex and Sumitomo and no Partyshall be required to make any cash payment or relinquish any property orcontractual rights or change in any manner its operations or the operations ofits Subsidiaries to obtain any such consent or approval except for Filing feesand fees and expenses of attorneys, accountants, and other professionaladvisors and payments in accordance with the terms of Contracts existing on thedate hereof; and (ii) each Party shall, and shall cause its respectiveSubsidiaries and Affiliates to, cooperate and use its respective commerciallyreasonable efforts to take, or cause to be taken, all appropriate action tocause to be made any necessary amendments to the Transmission Line LoanDocuments, the Financing Documents, and the New and Amended Financing Documentsto effect the same.  At the Closing, thetransactions referred to in clauses (A) and (B) of the immediatelypreceding sentence shall be deemed, as between ASC Bolivia and Sumitomo, tohave occurred at the Closing, 35% of all gains, income, losses, and liabilitiesrelated to the Transmission Line Loan Documents on or after the Closing to befor the account of Sumitomo, and ASC Bolivia shall accede to the DisputeResolution Agreement and become a party thereto; *provided*,* however*,if the assignment of 35% of the interest in ASC Bolivia to Sumitomo, as setforth in this Section 5.3(b), is not consummated for any reason, Apex expresslyagrees to promptly pay to Sumitomo any and all proceeds that would otherwisehave been paid to Sumitomo if the assignment had in fact occurred as of thedate hereof.

41

----

### (c)           Inaccordance with Section 2.2(c)(ii) of the MSC Shareholders Agreement,promptly following the execution and delivery of this Agreement, anextraordinary General Shareholders Meeting (as defined in the MSC ShareholdersAgreement) shall be held for the purpose of, among other things, amending andrestating the *estatutos sociales* of MSC in theform of the Spanish language version attached as Exhibit A to the MSCShareholder Agreement.

# **ARTICLEVICONDITIONS TO CLOSING**

On or prior to the date hereof, each of the followingis occurring or has occurred:

## Section 6.1             Authorizations and GovernmentApprovals.  One or more of theParties, MSC, Old Metals, New Metals, New Cayman, and the Acquired Entities hasmade, or caused to be made, all notices and Filings with all Persons that arerequired to have been made to consummate the transactions contemplated by thisAgreement and the other Transaction Documents, and has received allAuthorizations and Government Approvals that are required to have been receivedto consummate the transactions contemplated by this Agreement and the otherTransaction Documents, except for such Authorizations and Government Approvalsthe failure to make or obtain would not have a Material Adverse Effect on NewMetals, MSC, New Cayman, Apex, or Sumitomo, and all such Authorizations andGovernment Approvals are in full force and effect.

## Section 6.2             Closing Deliveries to Sumitomo.

### (a)           Eachof the items described as being executed and delivered by Apex and itsSubsidiaries (including the Acquired Entities) pursuant to Section 2.5(a),including the MSC Shareholders Agreement, the Metals Quotaholders Agreement,the New Cayman Shareholders Agreement, the Apex Parent Guarantees, the DisputeResolution Agreement, the MSC Management Agreement, the New Metals ManagementAgreement, the Deferred Payments Agreement, the Option Agreement, theReimbursement Agreement, the Apex Parent Guarantees, the Metals Hedge NovationAgreements, the Old Metals Concentrate Sales Agreement Termination, the NewConcentrate Sales Agreement, and the New and Amended Financing Documents, hasbeen executed by Apex and its Subsidiaries (including the Acquired Entities),as applicable, that are parties thereto and delivered to Sumitomo;

### (b)           TheNew and Amended Financing Documents have been executed by the lenders, thehedge banks, the administrative agent, the technical agent, and the collateralagent, as applicable, that are parties thereto and delivered to Sumitomo;

### (c)           Sumitomohas received (i) the opinion of Holme Roberts & Owen LLP, special NewYork counsel to Apex regarding, among other things, Service Company,(ii) the opinion of Quintanilla e Soria Abogados, special Bolivian counselto Apex regarding MSC, (iii) the opinion of Wistrand Advokatbyra, specialSwedish counsel to Apex regarding Apex Sweden, (iv) the opinions ofSuterHowald Rechstanwalte, special

42

----

### Swiss counsel to Apex regarding (A) New Metals and (B) OldMetals, (v) the opinions of Walkers & Co., special Cayman Islandscounsel to Apex regarding (A) New Cayman and (B) Apex, and(vi) the opinion of Bonn Schmitt Steichen, counsel to Apex regarding Apex Luxembourg,in each case dated as of the Closing Date, addressed to Sumitomo, NewSweden 1, and New Sweden 2, and in form and substance satisfactory toSumitomo in its reasonable discretion;

### (d)           Apexhas delivered to Sumitomo copies of each of the public deeds evidencing theGoverning Documents of MSC, duly certified by a notary public under BolivianLaw, together with certified copies of the registration of all such publicdeeds in the****Registry of Commerceof Bolivia under the care of Fundempresa, on or soon before the date hereof;

### (e)           Apexhas delivered to Sumitomo a copy of the articles of association (*statuten*) of New Metals, duly certified by the commercialregister of the Canton of Zug (*Handels registeramt desKanton Zug*) as of September 25, 2006; 

### (f)            Apexhas delivered to Sumitomo a copy of the registration of MSC in the Registry ofCommerce of Bolivia under the care of Fundempresa with an updated certificateof commercial registration for year 2005 (*certificado deactualización de matricula*) issued on September 21, 2006 by theRegistry of Commerce of Bolivia under the care of Fundempresa;

### (g)           Apexhas delivered to Sumitomo copy of the articles of association (*statuts coordonnes)* of Apex Luxembourg, duly certified byPaul Frieders, notary public of Luxembourg, as of December 14, 2005;

### (h)           Apexhas delivered to Sumitomo a copy of the articles of association (*bolagsordning*) of Apex Sweden, duly certified by the SwedishCompanies Registration Office (*Bolagsverket*)as of September 22, 2006;

### (i)            Apexhas delivered to Sumitomo a copy of the articles of association (*bolagsordning*) of New Sweden 1, duly certified by theSwedish Companies Registration Office (*Bolagsverket*)as of September 21, 2006;

### (j)            Apexhas delivered to Sumitomo a copy of the articles of association (*bolagsordning*) of New Sweden 2, duly certified by theSwedish Companies Registration Office (*Bolagsverket*)as of September 21, 2006;

### (k)           Apexhas delivered to Sumitomo copies of each of the public deeds evidencing theGoverning Documents of New Cayman, duly certified by G. Wayne Panton, notarypublic in and for the Cayman Islands, as of September 22, 2006;

### (l)            Apexhas delivered to Sumitomo a certified copy of the extract from the commercialregister of the Canton of Zug (*Handelsregisteramt desKanton Zug — Hauptregister*) regarding New Metals as ofSeptember 4, 2006;

### (m)          *[Intentionally Omitted]*;

43

----

### (n)           Apexhas delivered to Sumitomo a certificate of the secretary of MSC, dated as ofthe Closing Date, in form and substance reasonably satisfactory to Sumitomo, asto (i) no amendments to the Governing Documents of MSC since the datespecified in Section 6.2(d); (ii) the resolutions of the board ofdirectors (or a duly authorized committee thereof) of MSC authorizing the execution,delivery, and performance of the Transaction Documents to which it is a partyand the transactions contemplated thereby; and (iii) incumbency andsignatures of the officers of MSC executing such Transaction Documents and anyother agreements contemplated by this Agreement to which it is a party;

### (o)           Apexhas delivered to Sumitomo a certificate signed by a managing officer of NewMetals, dated as of the Closing Date, in form and substance reasonablysatisfactory to Sumitomo, as to (i) no amendments to the GoverningDocuments of New Metals since the date specified in Section 6.2(e);(ii) the resolutions of all the managing officers of New Metalsauthorizing the execution, delivery, and performance of the TransactionDocuments to which it is a party and the transactions contemplated thereby; and(iii) incumbency and signatures of the managing officers of New Metalsexecuting such Transaction Documents and any other agreements contemplated bythis Agreement to which it is a party;

### (p)           Apexhas delivered to Sumitomo a certificate of the assistant secretary of Apex,dated as of the Closing Date, in form and substance reasonably satisfactory toSumitomo, as to (i) the resolutions of the board of directors (or a dulyauthorized committee thereof) of Apex authorizing the execution, delivery, andperformance of this Agreement and the other Transaction Documents to which itis a party and the transactions contemplated thereby; and (ii) incumbencyand signatures of the officers of Apex executing this Agreement, such other TransactionDocuments, and any other agreements contemplated by this Agreement to which itis a party;

### (q)           Apexhas delivered to Sumitomo a certificate of a manager of Apex Luxembourg, datedas of the Closing Date, in form and substance reasonably satisfactory toSumitomo, as to (i) the resolutions of the managers of Apex Luxembourgauthorizing the execution, delivery, and performance of the TransactionDocuments to which it is a party and the transactions contemplated thereby; and(ii) incumbency and signatures of the managers of Apex Luxembourgexecuting such Transaction Documents and any other agreements contemplated bythis Agreement to which it is a party;

### (r)            Apexhas delivered to Sumitomo a certificate of a director of Apex Sweden, dated asof the Closing Date, in form and substance reasonably satisfactory to Sumitomo,as to (i) the resolutions of the board of directors of Apex Swedenauthorizing the execution, delivery, and performance of the TransactionDocuments to which it is a party and the transactions contemplated thereby; and(ii) incumbency and signatures of the directors (or deputy directors) ofApex Sweden executing such Transaction Documents and any other agreementscontemplated by this Agreement to which it is a party;

44

----

### (s)           *[Intentionally Omitted]*;

### (t)            Apexhas delivered to Sumitomo a certificate of a director of New Sweden 1,dated as of the Closing Date, in form and substance reasonably satisfactory toSumitomo, as to (i) no amendments to the Governing Documents of NewSweden 1 since the date specified in Section 6.2(i); (ii) theresolutions of the board of directors (or a duly authorized committee thereof)of New Sweden 1 authorizing the execution, delivery, and performance ofthe Transaction Documents to which it is a party and the transactionscontemplated thereby; and (iii) incumbency and signatures of the directors(or deputy directors) of New Sweden 1 executing such Transaction Documentsand any other agreements contemplated by this Agreement to which it is a party;

### (u)           Apexhas delivered to Sumitomo a certificate of a director of New Sweden 2,dated as of the Closing Date, in form and substance reasonably satisfactory toSumitomo, as to (i) no amendments to the Governing Documents of NewSweden 2 since the date specified in Section 6.2(j), (ii) theresolutions of the board of directors (or a duly authorized committee thereof)of New Sweden 2 authorizing the execution, delivery, and performance ofthe Transaction Documents to which it is a party and the transactionscontemplated thereby; and (iii) incumbency and signatures of the directors(or deputy directors) of New Sweden 2 executing such Transaction Documentsand any other agreements contemplated by this Agreement to which it is a party;

### (v)           Apexhas delivered to Sumitomo a certificate of the secretary or assistant secretaryof New Cayman, dated as of the Closing Date, in form and substance reasonablysatisfactory to Sumitomo, as to (i) no amendments to the GoverningDocuments of New Cayman since the date specified in Section 6.2(k), (ii) theresolutions of the board of directors (or a duly authorized committee thereof)of New Cayman authorizing the execution, delivery, and performance of theTransaction Documents to which it is a party and the transactions contemplatedthereby; and (iii) incumbency and signatures of the officers of New Caymanexecuting such Transaction Documents and any other agreements contemplated bythis Agreement to which it is a party;

### (w)          Apexhas delivered to Sumitomo a copy of the certificate of incorporation of ServiceCompany, duly certified by the Secretary of State of the State of Delaware,U.S.A. dated as of a recent date;

### (x)            Apexhas delivered to Sumitomo a copy of the certificate issued by the Secretary ofState of the State of Delaware, U.S.A. dated as of a recent date, relating tothe good standing of Service Company in the State of Delaware, U.S.A.; and

### (y)           Apexhas delivered to Sumitomo a certificate of the secretary or assistant secretaryof Service Company, dated as of the Closing Date, in form and substancereasonably satisfactory to Sumitomo, as to (i) the resolutions of theboard of directors of Service Company authorizing the execution, delivery, andperformance of the Transaction Documents to which it is a party and thetransactions contemplated thereby; and (ii) incumbency and signatures ofthe officers of Service Company executing such

45

----

### Transaction Documents and any other agreements contemplated by thisAgreement to which it is a party.

## Section 6.3             Closing Deliveries to Apex, ApexSweden, and Apex Luxembourg.

### (a)           Eachof the items described as being executed and delivered by Sumitomo or itsSubsidiaries (other than the Acquired Entities) pursuant to Section 2.5(b),including the New Cayman Shareholders Agreement, the Sumitomo Guaranty, theDispute Resolution Agreement, the Deferred Payments Agreement, the OptionAgreement, the Reimbursement Agreement, and the New and Amended FinancingDocuments, has been executed by Sumitomo and its Subsidiaries (other than theAcquired Entities), as applicable, that are parties thereto and delivered toApex;

### (b)           TheNew and Amended Financing Documents have been executed by the lenders, thehedge banks, the administrative agent, the technical agent, and the collateralagent, as applicable, that are parties thereto and delivered to Apex;

### (c)           Apexhas received (i) the opinion of Morrison & Foerster LLP, special NewYork counsel to Sumitomo, and (ii) the opinion of Ito & Mitomi,special Japanese counsel to Sumitomo, in each case dated as of the ClosingDate, addressed to Apex, and in form and substance satisfactory to Apex in itsreasonable discretion; and

### (d)           Sumitomohas delivered to Apex a certificate of the General Manager, Corporate Legal& General Affairs Department of Sumitomo, dated as of the Closing Date, inform and substance reasonably satisfactory to Apex, as to (i) theresolutions of the board of directors (or a duly authorized committee thereof)of Sumitomo authorizing the execution, delivery, and performance of thisAgreement and the other Transaction Documents to which it is a party and thetransactions contemplated thereby; and (ii) incumbency and signatures ofthe officers of Sumitomo executing this Agreement, such other TransactionDocuments, and any other agreements contemplated by this Agreement to which itis a party.

## Section 6.4             Board Approvals.  This Agreement, the other TransactionDocuments, their execution and delivery, and the transactions contemplatedhereby and thereby, have been approved by Sumitomo’s board of directors andApex’s board of directors, and to the extent any of such approvals are subjectto the satisfaction or waiver of any conditions, such conditions have beensatisfied or waived.

## Section 6.5             Restructuring.  All the material steps and actions withrespect to the corporate and tax restructuring set forth in Section 4.10 of theApex Disclosure Schedule to be taken prior to Closing have been taken.

# **ARTICLEVIIINDEMNIFICATION**

## Section 7.1             Survival of Representations andWarranties.  The respectiverepresentations and warranties of the Parties contained in this Agreement orany certificate

46

----

## delivered pursuant to this Agreement shallsurvive the Closing until the first anniversary of the Closing Date; provided,however, that the representation and warranties set forth in Section3.1(l) through Section 3.1(p), Section 4.6, and Section 4.10 shall survive theClosing until the expiration of any applicable statutes of limitations; provided,further, that the obligations to indemnify specified in Section 7.2 shallnot terminate at the time provided above if, prior to such time, a notice ofclaim relating to Losses specifying in detail the nature of such Losses(although the amount of Losses, if not yet determinable, need not be specified)has been given to Apex or Sumitomo, as applicable; and provided, further,that notwithstanding anything to the contrary in this Agreement, a claim forindemnity that is related to a Loss that results from fraud or intentionalmalfeasance of Apex shall not have the benefit of any of the limitations setforth in this ARTICLE VII.  The covenantsof the Parties in this Agreement shall survive the Closing without limitation(except pursuant to their terms).

## Section 7.2             Indemnification.

### (a)           Subjectto a Party (an “Indemnified Party”) making a written claim for indemnificationagainst the other Party (the “Indemnifying Party”) pursuant to Section7.3 within the survival period set forth in Section 7.1, the Indemnifying Partyshall indemnify and hold the Indemnified Party harmless from and against anyand all Losses the Indemnified Party may suffer (including Losses suffered orpaid, directly or indirectly, through the application of the Indemnified Party’sassets or otherwise), arising out of, in the nature of, incident or relatingto, resulting from, or caused by (i) the failure of any representation orwarranty set forth in ARTICLE III or ARTICLE IV made by the Indemnifying Partyto be true and correct in all material respects at and as of the Closing Dateor (ii) the breach in any material respect by the Indemnifying Party ofany of its covenants under this Agreement.

### (b)           Noindemnification by either Party pursuant to Section 7.2(a) shall be due andpayable unless the aggregate amount of all such claims asserted by theIndemnified Party against the Indemnifying Party exceeds US$3,000,000.00 (the “BasketAmount”), whereupon the applicable Indemnifying Party shall be obligated topay only the excess of the aggregate amount of such claims for indemnificationover the Basket Amount.

### (c)           AParty’s maximum aggregate indemnification obligations pursuant to Section7.2(a) are limited to US$40,000,000.00; provided, however, thatthe maximum aggregate indemnification obligations pursuant to Section 7.2(a)are limited to $224,000,000 to the extent arising out of, in the nature of, incidentor relating to, resulting from, or caused by the failure of any representationor warranty set forth in Section 3.1(l) through Section 3.1(p), or Section 4.6to be true and correct at and as of the Closing Date.

### (d)           EachParty hereby acknowledges and agrees that its sole and exclusive monetaryremedy with respect to this Agreement, regardless of whether the reliefdemanded or sought is found in contract or tort, shall be pursuant to theindemnification provisions set forth in this ARTICLE VII.  Notwithstanding anything in the immediatelypreceding sentence to the contrary, nothing in this Section 7.2(d) shall limitin any way the availability of specific performance, injunctive relief,rescission, or other

47

----

### non-monetary remedies to which a Party may otherwise beentitled.  In no event shall either Partybe liable to any other Person for such other Person’s (i) lost profits,loss of use, or lost revenues, (ii) punitive, multiple, or other exemplarydamages, or (iii) any other indirect, incidental, special, orconsequential Losses.  Each Party waivesand relinquishes claims for such lost profits, loss of use, lost revenues, orother indirect, incidental, special, or consequential Losses.

## Section 7.3             Procedures.

### (a)           Inorder for an Indemnified Party under this ARTICLE VII to be entitled to anyindemnification provided for under this Agreement, such Indemnified Partyshall, promptly following the discovery of the matters giving rise to any Loss,notify the Indemnifying Party under this ARTICLE VII in writing of its claimfor indemnification for such Loss, specifying in reasonable detail the natureof such Loss and the amount of the liability estimated to accrue therefrom; provided,however, that the Indemnified Party’s failure to so notify theIndemnifying Party shall not release the Indemnifying Party, in whole or inpart, from its obligations under this ARTICLE VII, except to the extent (andsolely to the extent) that the Indemnifying Party will have been actuallyprejudiced as a result of such failure. Thereafter, the Indemnified Party shall deliver to the IndemnifyingParty, within five Business Days after the Indemnified Party’s receipt of suchrequest, all information and documentation reasonably requested by theIndemnifying Party with respect to such Loss.

### (b)           Ifany third party notifies any Indemnified Party seeking indemnification underSection 7.2, with respect to any matter, claim, investigation, action, suit,charge, complaint, demand, or other Legal Proceeding, whether pending orthreatened (an “Action”), that may give rise to a claim forindemnification under this ARTICLE VII, then the Indemnified Party shallpromptly give notice of the Action to the Indemnifying Party pursuant toSection 8.5; provided, however, that the Indemnified Party’sfailure to so notify the Indemnifying Party of any Action shall not release theIndemnifying Party, in whole or in part, from its obligations under thisARTICLE VII, except to the extent (and solely to the extent) that theIndemnified Party’s failure to so notify actually prejudices the IndemnifyingParty’s ability to defend against such Action.

### (c)           TheIndemnified Party may, at the sole expense and liability of the IndemnifyingParty, exercise full control of the defense, compromise, or settlement of anysuch Action, unless, at any time within 30 days after the Indemnified Party hasgiven notice to the Indemnifying Party of the Action, the Indemnifying Party(i) delivers a written confirmation to such Indemnified Party that theindemnification provisions of Section 7.2 are applicable to such Action andthat, subject to the other provisions of this ARTICLE VII, the IndemnifyingParty shall indemnify such Indemnified Party in respect of such Action pursuantto the terms of Section 7.2, (ii) notifies such Indemnified Party inwriting of the Indemnifying Party’s intention to assume the defense thereof andthereafter conducts the defense actively and diligently, and (iii) retainslegal counsel reasonably satisfactory to such Indemnified Party to conduct thedefense of such Action.  Notwithstandinganything to the contrary in the immediately preceding sentence, the

48

----

### Indemnifying Party shall not have any right to assume the defense ofsuch Action, if (1) such Action seeks an injunction or other equitablerelief and not money damages only, or (2) the settlement or compromise of,or an adverse judgment with respect to, such Action is, in the good faithjudgment of the Indemnified Party, likely to establish a precedent, custom orpractice materially adverse to the continuing business interests or thereputation of the Indemnified Party.

### (d)           TheIndemnified Party and the Indemnifying Party shall use their commerciallyreasonable efforts to cooperate with the Party assuming the defense,compromise, or settlement of any such Action in accordance herewith in anymanner that such Party reasonably may request. If the Indemnifying Party assumes the defense of any such Action, theIndemnified Party shall have the right to employ separate counsel and toparticipate in (but not control) the defense, compromise, or settlementthereof, but the fees and expenses of such counsel shall be the expense of suchIndemnified Party unless (i) the Indemnifying Party has specificallyagreed to pay such fees and expenses or (ii) the Indemnified Party hasbeen advised by its counsel that there may be one or more legal defenses fromclaims available to it that are different from or additional to those availableto the Indemnifying Party or that there may be a conflict of interest betweenthe Indemnifying Party and the Indemnified Party in the conduct of the defenseof such Action (in either of which cases the Indemnifying Party shall not havethe right to direct the defense, compromise, or settlement of such Action onbehalf of the Indemnified Party), and in any such case the reasonable fees andexpenses of such separate counsel shall be borne by the Indemnifying Party, itbeing understood and agreed, however, that the Indemnifying Party shall not beliable for the fees and expenses of more than one separate firm of attorneys atany time for the Indemnified Party.  NoIndemnified Party shall settle or compromise or consent to entry of anyjudgment with respect to any such Action for which it is entitled toindemnification hereunder without the prior written consent of the IndemnifyingParty, unless the Indemnifying Party fails to assume control of such Action inthe manner provided in Section 7.3(c). The Indemnifying Party shall not, without the written consent of the IndemnifiedParty, settle or compromise or consent to entry of any judgment with respect toany such Action (1) in which any relief other than the payment of moneydamages is or may be sought against any Indemnified Party, or (2) thatdoes not include as an unconditional term thereof the giving by the claimant,party conducting such investigation, plaintiff or petitioner to suchIndemnified Party of a release from all liability with respect to such Action.

## Section 7.4             Insurance Proceeds.  Notwithstanding anything to the contrary inthe other provisions of this ARTICLE VII, the amount that any IndemnifyingParty may be required to pay to an Indemnified Party pursuant to this ARTICLEVII shall be reduced (retroactively, if necessary) by any insurance proceeds orrefunds actually recovered by or on behalf of the applicable Indemnified Partyin reduction of the related Losses (on an after-Tax basis).  If an Indemnified Party receives the paymentrequired by this ARTICLE VII from the Indemnifying Party in respect of Lossesand subsequently receives insurance proceeds in respect of such Losses, thenthe Indemnified Party shall promptly repay to the Indemnifying Party a sumequal to the amount of such insurance proceeds or refunds actually received,net of costs and expenses and on an after-Tax basis, but not exceedingthe amount paid by the Indemnifying Party to such

49

----

## Indemnified Party in respect of suchLosses.  No representation, warranty,covenant, or agreement contained in this Agreement is for the benefit of anyinsurer.

# **ARTICLEVIIIMISCELLANEOUS**

## Section 8.1             Entire Agreement.  This Agreement (together with the DisclosureSchedules, other Schedules and Exhibits annexed hereto) and the otherTransaction Documents contain, and are intended as, a complete statement of allof the terms of the agreements among the Parties with respect to the mattersprovided for herein and therein, and supersede and discharge any previousagreements and understandings between the Parties with respect to thosematters; provided, however, that the Confidentiality Agreementshall survive the execution and delivery hereof and the Closing hereunder andcontinue in full force and effect in accordance with its terms.

## Section 8.2             Governing Law; Language.  This Agreement shall be governed by andconstrued in accordance with the Laws of the State of New York, includingSection 5-1401 of the New York General Obligations Law, as applied tocontracts made and performed within the State of New York, without regard toany choice or conflicts of law provision or rule that would cause the applicationof the Laws of any jurisdiction other than the State of New York.  This Agreement has been negotiated andexecuted by the Parties in English.  Inthe event any translation of this Agreement is prepared for convenience or anyother purpose, the provisions of the English version shall govern.  Certain Schedules and/or Exhibits to thisAgreement are being executed in both English and Spanish or German.  If any doubt, misunderstanding or disputearises in their interpretation, the English version shall govern.

## Section 8.3             Dispute Resolution.  Any controversy, claim, or dispute betweenthe Parties that arises out of or relates to this Agreement, including anyclaim or controversy relating to the interpretation, breach, termination, orinvalidity of any provision hereof, shall be exclusively and finally settledpursuant to and in accordance with the Dispute Resolution Agreement.

## Section 8.4             Headings.  The article and section headings of thisAgreement are for reference purposes only and are to be given no effect in theconstruction or interpretation of this Agreement.

## Section 8.5             Notices.  All notices and other communicationshereunder shall be in writing and shall be delivered personally, telecopied (ifreceipt of which is confirmed by the Person to whom sent), or sent byinternationally recognized overnight delivery service to the Parties at thefollowing addresses (or to such other Person or address for a Party asspecified by such Party by like notice) (notice shall be deemed given andreceived upon receipt, if delivered personally, by overnight delivery serviceor by telecopy, or on the third Business Day following mailing, if mailed,except that notice of a change of address shall not be deemed given andreceived until actually received):

50

----

### (a)          Ifto Apex, Apex Sweden, or Apex Luxembourg, to it at:

c/o Apex SilverMines Corporation1700 Lincoln Street, Suite 3050Denver, Colorado  80203  U.S.A.Attention:  PresidentTelecopier: +1 (303) 839-5907

with a copy to:

Holme Roberts& Owen LLP1700 Lincoln Street, Suite 4100Denver, Colorado 80203 U.S.A.Attention:  Paul G. Thompson, Esq.Telecopier:  +1 (303) 866-0200

with a furthercopy to:

Davis Graham &Stubbs LLP1550 17th Street, Suite 500Denver, Colorado 80202 U.S.A.Attention:  Deborah J. Friedman, Esq.Telecopier:  +1 (303) 893-1379

### (b)          Ifto Sumitomo, to it at:

SumitomoCorporation8-11, Harumi, 1-chome,Chuo-ku, Tokyo, 104-8610 JapanAttention:  General Manager of the NonFerrous Metals & Raw Materials DepartmentTelecopier: +81-3-5166-6423

with a copy to:

Morrison &Foerster LLP1290 Avenue of the AmericasNew York, New York 10104 U.S.A.Attention:  Michael C. Graffagna, Esq.Telecopier:  +1 (212) 468-7900

## Section 8.6             Severability.  If at any time any covenant or provisioncontained herein is deemed in a final ruling of a court or other body ofcompetent jurisdiction (including an arbitral tribunal convened in accordancewith the Dispute Resolution Agreement) to be invalid or unenforceable, suchcovenant or provision shall be considered divisible and such covenant orprovision shall be deemed immediately amended and reformed to include only suchportion of such covenant or provision as such court or other body has held tobe valid and enforceable; and the Parties agree that such covenant orprovision, as so amended and reformed, shall be valid and binding as though theinvalid or unenforceable portion had not been included herein.

51

----

## Section 8.7             Amendment; Waiver.  No provision of this Agreement may be amendedor modified except by an instrument or instruments in writing signed by theParties and designated as an amendment or modification.  No waiver by any Party of any provision ofthis Agreement shall be valid unless in writing and signed by the Party makingsuch waiver and designated as a waiver. No failure or delay by any Party in exercising any right, power, orremedy hereunder shall operate as a waiver thereof, nor shall any single orpartial exercise thereof or the exercise of any other right, power, or remedypreclude any further exercise thereof or the exercise of any other right,power, or remedy.  No waiver of anyprovision hereof shall be construed as a waiver of any other provision.

## Section 8.8             Assignment and Binding Effect.  No Party may assign any of its rights ordelegate any of its obligations under this Agreement without (a) the priorwritten consent of the other Parties, and (b) the complete writtenassumption by the assignee of all of the obligations of the assignor under thisAgreement.  All of the terms andprovisions of this Agreement shall be binding on, and shall inure to thebenefit of, the respective successors and permitted assigns of the Parties.

## Section 8.9             No Benefit to Others.  Except as expressly set forth herein, therepresentations, warranties, covenants, and agreements contained in thisAgreement are for the sole benefit of the Parties and their respectivesuccessors and permitted assigns, and they shall not be construed as conferringand are not intended to confer any rights, remedies, obligations, orliabilities on any other Person, unless such Person is expressly stated hereinto be entitled to any such right, remedy, obligation, or liability.

## Section 8.10           Counterparts.  This Agreement may be executed by the Partiesin separate counterparts, each of which when so executed and delivered shall bean original, but all such counterparts shall together constitute one and thesame instrument.

## Section 8.11           Interpretation.

### (a)           Asused herein, except as otherwise indicated herein or as the context mayotherwise require: (i) the words “include,” “includes,” and “including”are deemed to be followed by “without limitation” whether or not they are infact followed by such words or words of like import; (ii) the words “hereof,”“herein,” “hereunder,” and comparable terms refer to the entirety of thisAgreement, including the Exhibits, Disclosure Schedules, and other Scheduleshereto, and not to any particular article, section, or other subdivision hereofor Exhibit, Disclosure Schedule, or Schedule hereto; (iii) any pronounshall include the corresponding masculine, feminine, and neuter forms;(iv) the singular includes the plural and vice versa; (v) referencesto any agreement or other document are to such agreement or document asamended, modified, supplemented, and restated now or hereafter from time totime; (vi) references to any statute or regulation are to it as amended,modified, supplemented, and restated now or hereafter from time to time, and toany corresponding provisions of successor statutes or regulations;(vii) except as otherwise expressly provided in this Agreement, referencesto “Article,” “Section,” “preamble,” “recital,” or another subdivision or to an“Exhibit,” “Disclosure Schedule,” or “Schedule” are to an article, section,preamble, recital or subdivision hereof or an 

52

----

### “Exhibit,” “Disclosure Schedule,” or “ Schedule” hereto; and(viii) references to any Person or Entity include such Person’s or Entity’srespective successors and permitted assigns.

### (b)           Inthis Agreement,

#### (i)                                     any reference toSumitomo’s “knowledge,” and comparable terms including “know,” “known,” “aware,”or “awareness,” of a particular fact or other matter means the knowledge of oneor more of the executive officers or directors of Sumitomo or the knowledgesuch individuals should be expected to know after conducting a due,appropriate, and reasonable investigation; and

#### (ii)                                  any reference to Apex’s“knowledge,” and comparable terms including “know,” “known,” “aware,” or “awareness,”of a particular fact or other matter means the knowledge of any of the followingindividuals or the knowledge such individuals should be expected to know afterconducting a due, appropriate, and reasonable investigation:

##### (A)                              Keith R. Hulley, chairmanand director of Apex;

##### (B)                                Jeffrey G. Clevenger,president, chief executive officer, and director of Apex;

##### (C)                                Harry M. Conger,director of Apex;

##### (D)                               Ove Hoegh, director ofApex;

##### (E)                                 Kevin R. Morano,director of Apex;

##### (F)                                 Terry M. Palmer,director of Apex;

##### (G)                                Charles B. Smith,director of Apex;

##### (H)                               Paul Soros, director ofApex;

##### (I)                                    Alan Edwards,executive vice president and chief operating officer of Apex;

##### (J)                                   Gerald J. Malys,senior vice president and chief financial officer of Apex;

##### (K)                               Marcel F. DeGuire,senior vice president of marketing and projects of Apex;

53

----

##### (L)                                 Terry L. Owen, seniorvice president of project development of Apex;

##### (M)                            Jerry W. Danni, senior vicepresident of corporate affairs of Apex;

##### (N)                               Robert P. Vogels, vicepresident and controller of Apex;

##### (O)                               Robert B. Blakestad,vice president exploration of Apex;

##### (P)                                 Igor Levental, vicepresident, investor relations and corporate development of Apex;

##### (Q)                               Graham Buttenshaw, vicepresident and general manager of MSC; and

##### (R)                                Gerardo Garrett, vicepresident corporate of MSC.

### (c)           Anyreference herein to a “day” or number of “days” (without the explicitqualification of “Business”) shall be deemed to refer to a calendar day ornumber of calendar days.  If any actionor notice is to be taken or given on or by a particular calendar day, and suchcalendar day is not a Business Day, then such action or notice may be taken orgiven on the next succeeding Business Day.

### (d)           Anyfinancial or accounting terms that are not otherwise defined herein shall havethe meanings given thereto under generally accepted accounting principles asused in the U.S.  For purposes of eachreference herein to an amount in Dollars in circumstances where the actual itemis expressed in any other currency shall be considered a reference to theDollar equivalent of such other currency on the relevant date of determinationof such amount at the relevant noon buying rate in the City of New York forcable transfers in foreign currencies, as announced by the Federal Reserve Bankof New York for customs purposes (the “Reference Exchange Rate”).

## Section 8.12           Rules of Construction.  The Parties agree that they have beenrepresented by counsel during the negotiation, preparation, and execution ofthis Agreement and, therefore, waive the application of any Law or rule ofconstruction providing that ambiguities in an agreement or other document shallbe construed against the Party drafting such agreement or document.

## Section 8.13           No Partnership.  No provision of this Agreement creates apartnership or joint venture between or among the Parties or makes any Partythe agent of any other Party for any purpose. No Party has the authority or power to bind, to contract in the name of,or to create any liability for any other Party in any way or for any purpose.

*[Remainder of pageintentionally left blank]*

54

----

IN WITNESS WHEREOF, the Parties have executed thisAgreement as of the date first written above.

 

 
|        | APEX SILVER MINES LIMITED     |
|--------|-------------------------------|
|   |                          |
|   |                          |
|   | By:                           | /s/ Jeffrey Clevenger |
|   |                          | Jeffrey Clevenger |
|   | Its:                          | President & CEO |
|   |                          |
|   | APEX LUXEMBOURG S.À R.L. |
|   |                          |
|   |                          |
|   | By:                           | /s/ Gerald Malys |
|   |                          | Gerald Malys |
|   | Its:                          | Manager |
|   |                          |
|   | APEX SILVER MINES SWEDEN AB   |
|   |                          |
|   |                          |
|   | By:                           | /s/ Marcel DeGuire |
|   |                          | Marcel DeGuire |
|   | Its:                          | Director |

 

----

 
|        | SUMITOMO CORPORATION |
|--------|----------------------|
|   |                 |
|   |                 |
|   | By:                  | /s/ Mitsuhiko Yamada |
|   |                 | Mitsuhiko Yamada |
|   | Its:                 | Executive Officer and General Manager,  Mineral Resources Division 1 |

 

----