Exhibit 4.4


 


EXECUTION COPY


 


COLLATERAL PLEDGE

AND SECURITY AGREEMENT


 


Dated as of
October 15, 2004


 


among


 


APEX SILVER MINES
LIMITED,

as Pledgor,


 


THE BANK OF NEW
YORK

as Trustee,


 


and


 


THE BANK OF NEW
YORK

as Collateral Agent


 


This Collateral Pledge and Security Agreement (as
supplemented from time to time, this “Pledge
Agreement”) is made and entered into as of October 15, 2004 among
APEX SILVER MINES LIMITED, a Cayman Islands company (the “Pledgor”), having its principal offices at
1700 Lincoln Street, Denver, Colorado 80203, THE BANK OF NEW YORK, a New York
banking corporation, having its principal corporate trust office at 101 Barclay
Street, Floor 8 West, New York, New York 10286, as trustee (in such capacity,
the “Trustee”) for the holders
from time to time (the “Holders”)
of the Notes (as defined herein) issued by the Pledgor under the Indenture
referred to below, and THE BANK OF NEW YORK, as collateral agent for the
Trustee and the holders from time to time of the Notes referred to below (in
such capacity, the “Collateral Agent”)
and securities intermediary (the “Securities
Intermediary”).


WITNESSETH:


 


WHEREAS, the Pledgor and Citigroup Global Markets
Inc., Barclays Bank PLC, Deutsche Bank Securities Inc., Harris Nesbitt Corp.
and Sunrise Securities Corp. (collectively, the “Initial Purchasers”) are parties to a Purchase Agreement,
dated October 11, 2004 (the “Purchase
Agreement”), pursuant to which the Pledgor will issue and sell to
the Initial Purchasers $100,000,000 aggregate principal amount of 4.0%
Convertible Senior Subordinated Notes due 2024 (the “Initial Notes” and, together with any subsequent 4.0%
Convertible Senior Subordinated Notes due 2024 issued pursuant to the Initial
Purchasers’ option set forth in the Purchase Agreement, the “Notes”);


 


WHEREAS, the Pledgor and The Bank of New York, as
Trustee, have entered into that certain indenture dated as of the date hereof
(as amended, restated, supplemented or otherwise modified from time to time,
the “Indenture”), pursuant to
which the Pledgor is or will be issuing the Notes;


 





















 


WHEREAS, pursuant to the Indenture, the Pledgor is
required to purchase and pledge to the Collateral Agent for the benefit of the
Trustee and for the ratable benefit of the Holders, on each Issue Date (as
defined in the Indenture) U.S. dollars in cash or U.S. Government Obligations
(as defined in the Indenture) in an amount that will be sufficient upon receipt
of scheduled interest and principal payments of such securities to provide for
payment in full of the first six scheduled interest payments due on the Notes
(such obligation, together with the obligation to repay the principal, premium,
if any, interest, fees, expenses or other amounts on the Notes and under the
Indenture, this Agreement and any other transaction document related thereto in
the event that the Notes become due and payable prior to such time as the first
six scheduled interest payments thereon shall have been paid in full, being
collectively referred to herein as the “Obligations”);


 


WHEREAS, the Pledgor will establish a securities
account (the “Collateral Account”)
with The Bank of New York, at its office at 101 Barclay Street, Floor 8 West,
New York, New York, in the name of The Bank of New York, as Collateral Agent
for the benefit of the Trustee and the ratable benefit of the Holders of the
Notes, designated as “APEX SILVER MINES - 4% CONV SR SUB NTS COLLATERAL A/C”;
and


 


WHEREAS, to induce the Initial Purchasers to purchase
the Notes pursuant to the Purchase Agreement, the Pledgor agrees to apply certain
of the proceeds of the offering of the Notes to purchase the Pledged Securities
(as defined below) and deposit or cause to be deposited the Pledged Securities
into the Collateral Account to be held therein subject to the terms of this
Pledge Agreement and shall have granted the assignment and security interest
and made the pledge and assignment contemplated by this Pledge Agreement.


 


NOW, THEREFORE, in consideration of the premises
herein contained, and in order to induce the Initial Purchasers to purchase the
Notes, the Pledgor, the Trustee and the Collateral Agent hereby agree, for the
benefit of the Initial Purchasers and for the ratable benefit of the Holders,
as follows:


 


SECTION 1.  Definitions; Appointment; Deposit and
Investment.


 


1.1.  Definitions.


 


(a)           Unless
otherwise defined in this Pledge Agreement, terms defined or referenced in the
Indenture are used in this Pledge Agreement as such terms are defined or
referenced therein.


 


(b)           Unless
otherwise defined in the Indenture or in this Pledge Agreement, terms defined
in Article 8 or 9 of the Uniform Commercial Code in effect in the State of New
York (“N.Y. Uniform Commercial Code”)
from time to time and/or in Section 357.2 of the Treasury Regulations (as
defined herein) are used in this Pledge Agreement as such terms are defined in
such Article 8 or 9 and/or such Section 357.2.


 


(c)           In
this Pledge Agreement, the following terms have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the
terms defined):


 


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“Cash Equivalents”
means U.S. dollar-denominated investments in money market accounts or funds
whose investments have a weighted average maturity of 90 days or less.


 


“C.F.R.”
means U.S. Code of Federal Regulations.


 


“Collateral”
has the meaning specified in Section 1.3 hereof.


 


“Collateral Account”
has the meaning specified in the recitals of the parties hereof.


 


“Collateral Agent”
has the meaning specified in the introductory paragraph hereto.


 


“Collateral
Investments” has the meaning specified in Section 4(b) hereof.


 


“Entitlement Holder”
has the meaning specified in N.Y. Uniform Commercial Code Section 8-102(a)(7)
or, in respect of any book-entry security, the meaning specified for “Entitlement
Holder” in 31 C.F.R. Section 357.2.


 


“FRBNY”
means Federal Reserve Bank of New York.


 


“FRBNY Account”
means the FRBNY Member Securities Account maintained in the name of the
Securities Intermediary by the FRBNY.


 


“FRBNY Member”
means any Person that is eligible to maintain (and that maintains) with the
FRBNY one or more FRBNY Member Securities Accounts in such Person’s name.


 


“FRBNY Member
Securities Account” means, in respect of any Person, an account in
the name of such Person at the FRBNY, to which account U.S. Government
Obligations held for such Person are or may be credited.


 


“Holders”
has the meaning specified in the introductory paragraph hereto.


 


“Initial Purchasers”
has the meaning specified in the recitals of the parties hereof.


 


“Notes”
has the meaning specified in the recitals of the parties hereof.


 


“N.Y. Uniform
Commercial Code” has the meaning specified in Section 1.1(b).


 


“Obligations”
has the meaning specified in the recitals of the parties hereof.


 


“Purchase Agreement”
has the meaning specified in the recitals of the parties hereof.


 


“Pledged Securities”
has the meaning specified in Section 1.3 hereof.


 


“Pledgor”
has the meaning specified in the introductory paragraph hereto.


 


“Securities
Intermediary” means a Person that is a “securities intermediary” (as
defined in N.Y. Uniform Commercial Code Section 8-l02(a)(14)) and, in respect
of any book-entry security, a “Securities Intermediary” (as defined in 31
C.F.R. Section 357.2).


 


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“Security”
has the meaning specified in Section 8-102(a)(l5) of the N.Y. Uniform
Commercial Code or, in respect of any book-entry security, has the meaning
specified for “Security” in 31 C.F.R. Section 357.2.


 


“Security
Entitlement” has the meaning specified in N.Y. Uniform Commercial
Code Section 8-l02(a)(17) or, in respect of any book-entry security, has the
meaning specified for “Security Entitlement” in 31 C.F.R. Section 357.2.


 


“Settlement Date”
means, as to any U.S. Government Obligations, the date on which the purchase of
such U.S. Government Obligations shall have been settled.


 


“Termination Date”
means the earlier of (a) the date of the payment in full in cash of each of the
first six scheduled interest payments due on the Notes under the terms of the
Indenture and (b) the date of the payment in full in cash of all obligations
due and owing under this Pledge Agreement, the Indenture and the Notes, in the
event such obligations become due and payable prior to the payment of the first
six scheduled interest payments on the Notes.


 


“Treasury
Regulations” means (a) the federal regulations contained in 31
C.F.R. Part 357 (including, without limitation, Section 357.10 through Section
357.14 and Section 357.41 through Section 357.44 of 31 C.F.R.).


 


“Trustee”
has the meaning specified in the introductory paragraph hereto.


 


“Uncertificated
Security” has the meaning specified in Section 8-l02(a)(l8) of the
N.Y. Uniform Commercial Code.


 


1.2.  Appointment of the Collateral Agent.  The Trustee hereby appoints The Bank of New
York as Collateral Agent in accordance with the terms and conditions set forth
herein and the Collateral Agent hereby accepts such appointment.


 


1.3.  Pledge and Grant of Security Interest.  As security for the prompt and complete
payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations, the Pledgor hereby assigns and
pledges to the Collateral Agent for the benefit of the Trustee and the ratable
benefit of the Holders and hereby grants to the Collateral Agent for the
benefit of the Trustee and for the ratable benefit of the Holders, a lien on
and security interest in all of the Pledgor’s right, title and interest in, to
and under the following property: (a) the U.S. Government Obligations
identified by CUSIP No. in Schedule I to this Pledge Agreement (the “Pledged Securities”); (b) the security
entitlements relating thereto; (c) the Collateral Account, all financial assets
and security entitlements from time to time carried in the Collateral Account and
all funds held therein; (d) all Cash Equivalents from time to time credited to
the Collateral Account or otherwise held in the name of the Collateral Agent,
and all security entitlements to the Cash Equivalents and any money market
deposit accounts or money market securities accounts relating to or
constituting any Cash Equivalent credited to the Collateral Account or
otherwise held in the name of the Collateral Agent; (e) all notes, certificates
of deposit, deposit accounts, checks and other instruments, if any, from time
to time hereafter delivered to or otherwise possessed by the Collateral Agent
for or on behalf of the Pledgor and specifically designated by the Pledgor to
constitute Collateral or to be in substitution for any or all of the then existing
Collateral; (f) all certificates and instruments, if any, from time 


 


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to time representing or
evidencing the Collateral Account, the Pledged Securities and Cash Equivalent;
(g) all interest, dividends, cash, instruments and other property, if any, from
time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of the then existing Collateral; and (h) all proceeds
of any and all of the foregoing Collateral (including, without limitation,
proceeds that constitute property of the types described in clauses (a) through
(g) of this Section 1.3 and, to the extent not otherwise included, all (i)
payments under insurance (whether or not the Trustee is the loss payee thereof)
or any indemnity, warranty or guaranty payable by reason of loss or damage to
or otherwise with respect to any of the foregoing Collateral and (ii) cash
proceeds of any and all of the foregoing Collateral) (such property described
in clauses (a) through (h) of this Section 1.3 being collectively referred to
herein as the “Collateral”).  Without limiting the generality of the
foregoing, this Pledge Agreement secures the payment of all amounts that
constitute part of the Obligations and would be owed by the Pledgor to the
Trustee under the Notes, the Indenture, this Pledge Agreement and any other
transaction documents related thereto but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Pledgor.


 


SECTION 2.  Establishment and Maintenance of the
Collateral Account.


 


(a)           Prior
to or concurrently with the execution and delivery hereof, the Collateral Agent
shall establish the Collateral Account on its books as a separate account
segregated from all other custodial or collateral accounts at its office at The
Bank of New York, 101 Barclay Street, Floor 8 West, New York, New York.  The Pledgor and the Collateral Agent will maintain
the Collateral Account as a securities account with the Securities Intermediary
in the State of New York.  The following
provisions shall apply to the establishment and maintenance of the Collateral
Account:


 


(i)            The Collateral Agent shall cause the
Collateral Account to be, and the Collateral Account shall be, separate from
all other accounts maintained by the Securities Intermediary.


 


(ii)           The Collateral Agent shall, in
accordance with all applicable laws, have sole dominion and control over the
Collateral Account.


 


(iii)          It shall be a term and condition of
the Collateral Account, and the Pledgor irrevocably instructs the Collateral
Agent, notwithstanding any other term or condition to the contrary in any other
agreement, that no amount (including interest on Collateral Investments) shall be
released to or for the account of, or withdrawn by or for the account of, the
Pledgor or any other Person except as expressly provided in this Pledge
Agreement.


 


(b)           On
the Issue Date for the Initial Notes, the Pledgor shall transfer, or cause to
be transferred, to the Collateral Agent, the sum of U.S. $10,874,662.68, which
amount shall be sufficient for the purchase of the Pledged Securities, by
depositing all such funds into the Collateral Account.  The Collateral Account shall be subject to
such applicable laws, and such applicable regulations of the Board of Governors
of the Federal Reserve System and of any other appropriate banking or
governmental authority, as may now or hereafter be in effect.


 


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SECTION 3.  Delivery of Collateral.  (a)  As soon as practicably possible after receipt of the amount referred to
in Section 2(b) (and not later than the Business Day following the Issue Date
for the Initial Notes), (i) the Collateral Agent shall purchase, and the
Pledgor shall provide all instructions necessary or desirable for the
Collateral Agent to purchase, for credit to the Collateral Account, the U.S.
Government Obligations listed on Schedule I hereto, (ii) the Securities
Intermediary shall credit such U.S. Government Obligations to the Collateral
Account as Collateral hereunder, and (iii) the Collateral Agent and the
Securities Intermediary shall ensure that, on the Settlement Date of such U.S.
Government Obligations, the FRBNY indicates by book-entry that those U.S.
Government Obligations being settled on such date are credited to the FRBNY
Account.


 


(b)           The
Collateral Agent will, from time to time, direct the Securities Intermediary to
reinvest the proceeds of Collateral that may mature or be sold in such Cash
Equivalents as it may be directed in writing by the Pledgor.  Except as otherwise expressly permitted in
Section 3(e) below, the Securities Intermediary shall make all Collateral
Investments in the name of The Bank of New York and shall credit such
Collateral Investments to the Collateral Account as Collateral hereunder.  Any such proceeds that the Pledgor directs
the Collateral Agent in writing not to reinvest in Collateral Investments shall
be held as funds in the Collateral Account.


 


(c)           Concurrently
with the execution and delivery of this Pledge Agreement, the Pledgor is
delivering to the Collateral Agent financing statements in form acceptable for
filing under the Uniform Commercial Codes of the District of Columbia and of
Colorado, covering the Collateral described in this Pledge Agreement.  The Pledgor shall file, or cause the filing
of, the financing statements and provide filed copies to the Collateral Agent.


 


(d)           Any
Collateral consisting of cash shall be credited to and maintained in the Collateral
Account.


 


(e)           Any
Collateral Investment consisting of a money market account shall be made in the
name of the Collateral Agent for the benefit of the Trustee and the ratable
benefit of the Holders or shall be made in the name of The Bank of New York and
credited by the Securities Intermediary to the Collateral Account.


 


(f)            Any
Collateral Investment consisting of an uncertificated security, including
without limitation, any interest in a money market fund, shall be credited and
maintained in the Collateral Account and the Securities Intermediary shall have
established itself as the registered owner on the books of the issuer of such
security.


 


(g)           Collateral
consisting of a certificated security or instrument shall be delivered to The
Bank of New York, registered in the name of the Bank of New York or specially
indorsed in its name by an effective endorsement and shall be credited by the
Securities Intermediary to the Collateral Account.


 


SECTION 4.  Investing of Amounts in the Collateral
Accounts.  The Collateral Agent shall advise the Pledgor if,
at any time, any amounts shall exist in the Collateral Account 


 


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that are uninvested, and if
directed in writing by the Pledgor, the Collateral Agent will, subject to the
provisions of Sections 5 and 12:


 


(a)           invest
such amounts on deposit in the Collateral Accounts in such Cash Equivalents in
accordance with the procedures in Section 3 as the Pledgor may select; and


 


(b)           invest
interest paid on the Cash Equivalents referred to in clause (a) above, and
reinvest other proceeds of any such Cash Equivalents that may mature or be
sold, in each case, in such Cash Equivalents in the name of the Collateral
Agent as the Pledgor may select (the Cash Equivalents referred to in clauses
(a) and (b) above, together with the Pledged Securities, being collectively
referred to herein as “Collateral Investments”);
provided, however, that the amount in cash and Pledged Securities
on deposit in the Collateral Account, collectively, at any time during the term
of this Pledge Agreement, is sufficient to provide for the payment in full of
the remaining interest payments at such time on the Notes up to and including
the sixth scheduled interest payment. 
Interest and proceeds that are not invested or reinvested in Collateral
Investments as provided above shall be deposited and held in the Collateral
Account.  The Collateral Agent shall not
be liable for any loss in the investment or reinvestment of amounts held in the
Collateral Account.  The Collateral Agent
is not at any time under any duty to advise or make any recommendation for the
purchase, sale, retention or disposition of the Collateral Investments.


 


SECTION 5.  Disbursements.  The Collateral Agent shall hold the Collateral in the Collateral
Account and release the same, or a portion thereof, only as follows:


 


(a)           Prior
to each of the first six scheduled interest payments on the Notes, the
Collateral Agent shall release from the Collateral Account an amount sufficient
to pay the interest due on the Notes on such interest payment date and will
take any action necessary to provide for the payment of the interest on the
Notes to the Holders in accordance with the payment provisions of the Indenture
from, and to the extent of, proceeds of the Collateral in the Collateral
Account.  Nothing in this Section 5 shall
affect the Collateral Agent’s rights to apply the Collateral to the payments of
amounts due on the Notes upon acceleration thereof.


 


(b)           If,
prior to the date on which the sixth scheduled interest payment on the Notes is
due:


 


(i)            an Event of Default under the Notes
occurs and is continuing; and


 


(ii)           the Trustee or the Holders of 25% in
aggregate principal amount of the Notes accelerate the Notes by declaring the
principal amount of the Notes to be immediately due and payable in accordance
with the provisions of the Indenture, except for the occurrence and continuance
of an Event of Default under Section 6.01(7) and (8) of the Indenture, upon
which the Notes will be accelerated automatically pursuant to the Indenture,


 


then
the Collateral Agent shall promptly, subject to applicable bankruptcy laws,
release the proceeds from the Collateral Account to the Holders of the
Notes.  Distributions from the Collateral
Account shall be applied, for the ratable benefit of the Holders, as follows:


 


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(x)            first, to any accrued and unpaid
interest on the Notes; and


 


(y)           second, to the extent available, to
the repayment of the remaining Obligations, including the principal amount of
the Notes.


 


(c)           Any surplus of such proceeds held by
the Collateral Agent and remaining after payment in full of all of the
Obligations shall be paid over to the Pledgor.


 


(d)           In
the event that the Collateral held in the Collateral Account exceeds 100% of
the amount sufficient to provide for payment in full of the first six scheduled
interest payments due on the Notes (or, in the event an interest payment or
payments have been made, an amount sufficient to provide for payment in full of
all interest payments remaining, up to and including the sixth scheduled
interest payment), the Collateral Agent shall release to the Pledgor, at the
Pledgor’s written request, accompanied by evidence, satisfactory to the
Collateral Agent, documenting the existence and amount of such excess, any such
excess Collateral.


 


(e)           Upon
the release of any Collateral from the Collateral Account, in accordance with
the terms of this Pledge Agreement, the security interest evidenced by this
Pledge Agreement in such released Collateral will automatically terminate and
be of no further force and effect.


 


(f)            Except
as expressly provided in this Section 5, nothing contained in this Pledge
Agreement shall (i) afford the Pledgor any right to issue entitlement orders
with respect to any security entitlement to the Pledged Securities or
Collateral Investments or any securities account in which any such security
entitlement may be carried, or otherwise afford the Pledgor control of any such
security entitlement or (ii) otherwise give rise to any rights of the Pledgor
with respect to the Collateral Investments, any security entitlement thereto or
any securities account in which any such security entitlement may be carried,
other than the Pledgor’s rights under this Pledge Agreement as the beneficial
owner of Collateral pledged to and subject to the exclusive dominion and
control (including, without limitation, securities control) of the Collateral
Agent in its capacity as such (and not as a securities intermediary).  The Pledgor acknowledges, confirms and agrees
that the Securities Intermediary holds a security entitlement to the Collateral
Investments solely for the Collateral Agent for the benefit of the Trustee and
the ratable benefit of the Holders and not as a securities intermediary for the
Pledgor.  For the avoidance of doubt, the
Securities Intermediary will, without any consent of the Pledgor being
required, follow only the instructions and entitlement orders of the Collateral
Agent.


 


SECTION 6.  Representations and Warranties.  The Pledgor hereby represents and warrants, as of the date hereof,
that:


 


(a)           The
execution and delivery by the Pledgor of, and the performance by the Pledgor of
its obligations under, this Pledge Agreement will not contravene any provision
of applicable law or the memorandum of association, articles of association or
equivalent organizational instruments of the Pledgor or any material agreement
or other material instrument binding upon the Pledgor or any of its
subsidiaries or any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Pledgor or any of its subsidiaries, or
result in the creation or imposition of any Lien on any assets of the Pledgor, 


 


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except for the lien and
security interests granted under this Pledge Agreement; no consent, approval,
authorization or order of, or qualification with, and no notice to or filing
with, any governmental body or agency or other third party is required (i) for
the performance by the Pledgor of its obligations under this Pledge Agreement,
(ii) for the pledge by the Pledgor of the Collateral pursuant to this Pledge
Agreement or for the execution, delivery or performance of this Agreement by
the Pledgor or (iii) for the perfection or maintenance of the pledge,
assignment and security interest created hereby (including the first priority
nature of such pledge, assignment or security interest), except for the filing
of financing and continuation statements under the Uniform Commercial Code of
applicable jurisdictions which financing statements have been delivered
pursuant to 3(c) hereof, or (iv) except for any such consents, approvals,
authorizations or orders required to be obtained by the Collateral Agent (or
the Holders) for reasons other than the consummation of this transaction, for
the exercise by the Collateral Agent of the rights provided for in this Pledge
Agreement or the remedies in respect of the Collateral pursuant to this Pledge
Agreement.


 


(b)           The
Pledgor is the legal and beneficial owner of the Collateral, free and clear of
any Lien or claims of any Person (except for the lien and security interests
granted under this Pledge Agreement).  No
effective financing statement or other instrument similar in effect covering
all or any part of the Collateral is on file in any public office other than
the financing statements, if any, to be filed pursuant to this Pledge
Agreement.


 


(c)           This
Pledge Agreement has been duly authorized, validly executed and delivered by
the Pledgor and (assuming the due authorization and valid execution and
delivery of this Pledge Agreement by each of the Trustee and the Collateral
Agent and enforceability of this Pledge Agreement against each of the Trustee
and the Collateral Agent in accordance with its terms) constitutes a valid and
binding agreement of the Pledgor, enforceable against the Pledgor in accordance
with its terms, except as (i) the enforceability hereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, preference, reorganization,
moratorium or similar laws now or hereafter in effect relating to or affecting
the rights or remedies of creditors generally, (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability and the discretion of the court before which any proceeding
therefor may be brought, (iii) the exculpation provisions and rights to
indemnification hereunder may be limited by U.S. federal and state securities
laws and public policy considerations, and (iv) the waiver of rights and
defenses contained in Section 15.11 and Section 15.15 hereof may be limited by
applicable law.


 


(d)           Upon
the delivery to the Collateral Agent of the Collateral in accordance with the
terms hereof and the filing of the financing statements referred to in Section
3(c) hereof, the pledge of and grant of a security interest in the Collateral
securing the payment of the Obligations for the benefit of the Trustee and the
ratable benefit of the Holders will constitute a valid, first priority,
perfected security interest in such Collateral (except, with respect to
proceeds, only to the extent permitted by Section 9-315 of the N.Y. Uniform
Commercial Code), enforceable as such against all creditors of the Pledgor and
any persons purporting to purchase any of the Collateral from the Pledgor other
than as permitted by the Indenture.  Upon
filing of the financing statements described in Section 3(c) hereof, all
filings and other actions necessary or desirable to perfect and protect such
security interest will have been duly taken.


 


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(e)           There
are no legal or governmental proceedings pending or, to the best of the Pledgor’s
knowledge, threatened to which the Pledgor or any of its subsidiaries is a
party or to which any of the properties of the Pledgor or any of its
subsidiaries is subject that would materially adversely affect the power or
ability of the Pledgor to perform its obligations under this Pledge Agreement
or to consummate the transactions contemplated hereby.


 


(f)            The
pledge of the Collateral pursuant to this Pledge Agreement is not prohibited by
law or governmental regulation (including, without limitation, Regulations G,
T, U and X of the Board of Governors of the Federal Reserve System) applicable
to the Pledgor.


 


(g)           No
Event of Default exists.


 


(h)           The
chief place of business and chief executive office of the Pledgor are located
at the address first specified above for the Pledgor.


 


(i)            The Pledged
Securities delivered to the Collateral Agent pursuant to Section 3(a) for the
benefit of the Trustee and the ratable benefit of the Holders are in a
principal amount that will be sufficient upon receipt of scheduled interest and
principal payments of such securities to provide for payment in full of the
first six scheduled interest payments due on the Notes.


 


SECTION 7.  Further Assurances.  The Pledgor will, promptly upon the request by the Collateral Agent
(which request the Collateral Agent may submit at the direction of the Holders
of a majority in aggregate principal amount of the Notes then outstanding),
execute and deliver or cause to be executed and delivered, or use its
reasonable best efforts to procure, all assignments, instruments and other
documents, deliver any instruments to the Collateral Agent and take any other
actions that are necessary or desirable to perfect, continue the perfection of,
or protect the first priority of the Trustee’s security interest in and to the
Collateral, to protect the Collateral against the rights, claims or interests
of third persons or to effect the purposes of this Pledge Agreement.  Without limiting the generality of the
foregoing, the Pledgor will, if any Collateral shall be evidenced by a promissory
note or other instrument, deliver to the Collateral Agent in pledge hereunder
such note or instrument duly indorsed and accompanied by duly executed
instruments of transfer or assignment; and execute and file such financing or
continuation statements, or amendments thereto, and such other instruments or
notices, as may be necessary, or as the Collateral Agent may reasonably
request, in order to perfect and preserve the pledge, assignment and security
interest granted or purported to be granted hereby.  The Pledgor also hereby authorizes the
Collateral Agent to file any financing or continuation statements, and
amendments thereto, in the United States with respect to the Collateral
reasonably required to perfect the security interest in the Collateral without
the signature of the Pledgor (to the extent permitted by applicable law).  The Pledgor will promptly pay all costs
incurred in connection with any of the foregoing within 45 days of receipt of
an invoice therefor.  The Pledgor also
agrees, whether or not requested by the Collateral Agent, to use its reasonable
best efforts to perfect or continue the perfection of, or to protect the first
priority of, the Trustee’s security interest in and to the Collateral, and to
protect the Collateral against the rights, claims or interests of third persons.


 


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SECTION 8.  Covenants.  The Pledgor
covenants and agrees with the Collateral Agent, Trustee and the Holders that
from and after the date of this Pledge Agreement until the Termination Date:


 


(a)           it
will not and will not purport to (i) sell or otherwise dispose of, or grant any
option or warrant with respect to, any of the Collateral or (ii) create or
permit to exist any Lien upon or with respect to any of the Collateral, except
for the Liens and security interests granted under this Pledge Agreement, and
at all times will be the sole beneficial owner of the Collateral;


 


(b)           it
will not (i) enter into any agreement or understanding that restricts or
inhibits or purports to restrict or inhibit the Trustee’s or the Collateral
Agent’s rights or remedies hereunder, including, without limitation, the
Collateral Agent’s right to sell or otherwise dispose of the Collateral or (ii)
fail to pay or discharge any tax, assessment or levy of any nature with respect
to its beneficial interest in the Collateral not later than three Business Days
prior to the date of any proposed sale under any judgment, writ or warrant of
attachment with respect to the Collateral;


 


(c)           it
will keep its chief place of business and chief executive office at the
location therefor specified in Section 6(h) or, upon 30 days’ prior written
notice to the Collateral Agent, at such other locations in a jurisdiction where
all actions required by Section 7 have been taken with respect to the Collateral.


 


(d)           it
will maintain Collateral Investments credited to the Collateral Account or
delivered as provided in Section 3(e) at all times such that the principal
amount thereof is sufficient, upon receipt of scheduled
interest and principal payments of such securities, to provide for payment in
full of the first six scheduled interest payments due on the Notes.


 


SECTION 9.  Power of Attorney; Agent May Perform.  (a)  Subject to the terms of this
Pledge Agreement, the Pledgor hereby appoints and constitutes the Collateral
Agent as the Pledgor’s attorney-in-fact, with full power of substitution, to
exercise to the fullest extent permitted by law all of the following powers
upon and at any time after the occurrence and during the continuance of an
Event of Default:


 


(i)            collection of proceeds of any
Collateral;


 


(ii)           conveyance of any item of Collateral
to any purchaser thereof;


 


(iii)          giving of any notices or recording of
any Liens with regard to the Collateral; and


 


(iv)          paying or discharging taxes or Liens
levied or placed upon the Collateral, the legality or validity thereof and the
amounts necessary to discharge the same to be determined by the Collateral
Agent in its sole reasonable discretion, and such payments made by the
Collateral Agent to become part of the Obligations secured hereby, due and
payable immediately upon demand.  The
Collateral Agent’s authority under this Section 9 shall include, without
limitation, the authority to endorse and negotiate any checks or instruments
representing 


 


11





















 


proceeds
of Collateral in the name of the Pledgor, execute and give receipt for any
certificate of ownership or any document constituting Collateral, transfer
title to any item of Collateral, or any other documents necessary or
appropriate to preserve, protect or perfect the security interest in the
Collateral and to file the same, prepare, file and sign the Pledgor’s name on
any notice of Lien, to the extent permitted by applicable law, and to take any
other actions arising from or necessarily incident to the powers granted to the
Trustee or the Collateral Agent in this Pledge Agreement.  This power of attorney is coupled with an
interest and is irrevocable by the Pledgor.


 


(b)           If
the Pledgor fails to perform any agreement contained herein, the Collateral
Agent may, but is not obligated to, after providing to the Pledgor notice of
such failure and five Business Days to effect such performance, itself perform,
or cause performance of, such agreement, and the expenses of the Collateral
Agent incurred in connection therewith shall be payable by the Pledgor under
Section 13.


 


SECTION 10.  No Assumption of Duties; Reasonable
Care.  The rights and powers granted to the Collateral
Agent hereunder are being granted in order to preserve and protect the security
interest of the Collateral Agent for the benefit of the Trustee and the ratable
benefit of the Holders in and to the Collateral granted hereby and shall not be
interpreted to, and shall not impose any duties on, the Collateral Agent in
connection therewith other than those expressly provided herein or imposed
under applicable law.  Except as provided
by applicable law or by the Indenture, the Collateral Agent shall be deemed to
have exercised reasonable care in the custody and preservation of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which the Collateral Agent accords similar property
held by the Collateral Agent for similar accounts, it being understood that the
Collateral Agent in its capacity as such:


 


(a)           may
consult with counsel of its selection, and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon; and


 


(b)           shall
not have any responsibility for:


 


(i)            ascertaining or taking action with
respect to calls, conversions, exchanges, maturities or other matters relative
to any Collateral, whether or not the Collateral Agent has or is deemed to have
knowledge of such matters;


 


(ii)           taking any necessary steps for the
existence, enforceability or perfection of any security interest of the
Collateral Agent or to preserve rights against any parties with respect to any
Collateral; or


 


(iii)          except as otherwise set forth in
Section 4, investing or reinvesting any of the Collateral; provided, however,
that in the case of clause (a) and clause (b) of this sentence, nothing
contained in this Pledge Agreement shall relieve the Collateral Agent of any
responsibilities as a securities intermediary under applicable law.


 


12





















 


In no
event shall the Collateral Agent be liable for the existence, validity,
enforceability or perfection of any security interest of the Collateral Agent,
or for special indirect or consequential damages or lost profits or loss of
business, arising in connection with this Agreement.


 


SECTION 11.  Indemnity. 
The Pledgor
shall fully indemnify, hold harmless and defend the Collateral Agent and its
directors and officers from and against any and all claims, losses, actions,
obligations, liabilities and expenses, including reasonable defense costs,
reasonable investigative fees and costs, and reasonable legal fees, expenses,
and damages arising from the Collateral Agent’s appointment and performance as
Collateral Agent under this Pledge Agreement, except to the extent that such
claim, loss action, obligation, liability or expense is directly caused by the
bad faith, gross negligence or willful misconduct of such indemnified
person.  The provisions of this Section
11 shall survive termination of this Pledge Agreement and the resignation and
removal of the Collateral Agent.


 


SECTION 12.  Remedies upon Event of Default.  Subject to Section 5(b), if any Event of
Default under the Indenture shall have occurred and be continuing and the Notes
shall have been accelerated in accordance with the provisions of the Indenture:


 


(a)           The
Trustee, the Collateral Agent and the Holders shall have, in addition to all
other rights given by law or by this Pledge Agreement or the Indenture, all of
the rights and remedies with respect to the Collateral of a secured party upon
default under the N.Y. Uniform Commercial Code (whether or not the N.Y. Uniform
Commercial Code applies to the affected Collateral) at that time.  The parties agree that the Collateral is and
will be of a type sold on a recognized market. 
In any event, with respect to any Collateral that shall then be in or
shall thereafter come into the possession or custody of the Collateral Agent,
the Collateral Agent may appoint a broker or other expert to sell or cause the
same to be sold at any broker’s board or at public or private sale, in one or
more sales or lots, at such price or prices such broker or other expert may
deem commercially reasonable, for cash or on credit or for future delivery,
without assumption of any credit risk. 
The purchaser of any or all Collateral shall thereafter hold the same
absolutely free from any claim, encumbrance or right of any kind whatsoever
created by or through the Pledgor.  The
parties agree that no notice of sale is required to be given to the Pledgor
since the Collateral is of a type sold on a recognized market.  In the event determined otherwise or notice
of sale is otherwise required under applicable law, the Collateral Agent will
give the Pledgor reasonable notice of the time and place of any public sale
thereof, or of the time after which any private sale or other intended disposition
is to be made.  Any requirements of
reasonable notice shall be met if notice of the time and place of any public
sale or the time after which any private sale is to be made is given to the
Pledgor as provided in Section 15.1 hereof at least five (5) days before the
time of the sale or disposition.  The
Collateral Agent or any Holder may, in its own name or in the name of a
designee or nominee, buy any of the Collateral at any public sale and, if
permitted by applicable law, at any private sale.  The Collateral Agent shall not be obligated
to make any sale of Collateral regardless of notice of sale having been
given.  The Collateral Agent may adjourn
any public or private sale from time to time by announcement at the time and
place fixed therefor, and such sale may, without further notice, be made at the
time and place to which it was so adjourned. 
All expenses, including court costs and reasonable attorneys’ fees,
expenses and disbursements, of, or incident to, the enforcement of any of the
provisions hereof shall be recoverable from the proceeds of the sale or other
disposition of the Collateral.


 


13





















 


(b)           The
Pledgor further agrees to use its reasonable best efforts to do or cause to be
done all such other acts as may be necessary to make such sale or sales of all
or any portion of the Collateral pursuant to this Section 12 valid and binding
and in compliance with any and all other applicable requirements of law.  The Pledgor further agrees that a breach of
any of the covenants contained in this Section 12 will cause irreparable injury
to the Trustee and the Holders, that the Trustee and the Holders have no
adequate remedy at law in respect of such breach and, as a consequence, that
each and every covenant contained in this Section 12 shall be specifically
enforceable against the Pledgor, and the Pledgor hereby waives and agrees not
to assert any defenses against an action for specific performance of such
covenants except for a defense that no Event of Default has occurred.


 


(c)           All
cash proceeds received by the Collateral Agent in respect of any sale of,
collection from, or other realization upon all or any part of the Collateral
shall be held by the Collateral Agent as Collateral for, and/or then or at any
time thereafter applied (after payment of any amounts payable to the Collateral
Agent or the Trustee pursuant to Section 13) by the Collateral Agent for the
ratable benefit of the Holders in accordance with Section 5(b).


 


(d)           The
Collateral Agent may, but is not obligated to, exercise any and all rights and
remedies of the Pledgor in respect of the Collateral.


 


(e)           Subject
to and in accordance with the terms of this Pledge Agreement, all payments
received by the Pledgor in respect of the Collateral shall be received in trust
for the benefit of the Collateral Agent, shall be segregated from other funds
of the Pledgor and shall be forthwith paid over to the Collateral Agent in the
same form as so received (with any necessary endorsement).


 


(f)            The
Collateral Agent may, without notice to the Pledgor except as required by law
and at any time or from time to time, charge, set-off and otherwise apply all
or any part of the Obligations against the Collateral Account or any part
thereof.


 


(g)           The
Pledgor shall cease to be entitled to direct the investment of amounts held in
the Collateral Account under Section 4 hereof and the Collateral Agent shall
not accept any direction from the Pledgor to invest amounts held in the
Collateral Account.


 


SECTION 13.  Fees and Expenses.  Pledgor agrees to pay to Collateral Agent the fees as may be agreed
upon from time to time in writing.  The
Pledgor will, upon demand, pay to the Trustee and the Collateral Agent the
amount of any and all expenses, including, without limitation, the reasonable
fees, expenses and disbursements of its counsel, experts and agents retained by
the Trustee and the Collateral Agent, that the Trustee and the Collateral Agent
may incur in connection with:


 


(a)           the
review, negotiation and administration of this Pledge Agreement,


 


(b)           the
custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Collateral;


 


(c)           the
exercise or enforcement of any of the rights of the Collateral Agent, the
Trustee and the Holders hereunder; or


 


14





















 


(d)           the
failure by the Pledgor to perform or observe any of the provisions hereof.


 


SECTION 14.  Collateral Agent’s Representations,
Warranties and Covenants.  The Bank of New York (in
its capacity as securities intermediary) represents and warrants that it is as
of the date hereof, and it agrees that for so long as it maintains the
Collateral Account and acts as the securities intermediary pursuant to this
Pledge Agreement it shall be, a securities intermediary and a FRBNY
Member.  In furtherance of the foregoing,
The Bank of New York (in such capacity) hereby:


 


(a)           represents
and warrants that it is a commercial bank that (in its capacity as securities
intermediary) in the ordinary course of its business maintains securities
accounts for others and is acting in that capacity hereunder and with respect
to the Collateral Account;


 


(b)           represents
and warrants that it maintains a FRBNY Member Securities Account with the
FRBNY;


 


(c)           agrees
that the Collateral Account shall be an account to which financial assets may
be credited, and undertakes to treat the Collateral Agent (in its capacity as
such) as entitled to exercise rights that comprise (and entitled to the
benefits of) such financial assets, and entitled to exercise the rights of an
entitlement holder in the manner contemplated by the UCC;


 


(d)           represents
that, subject to applicable law, it has not granted, and covenants that so long
as it acts as a securities intermediary hereunder it shall not grant, control
(including without limitation, securities control) over or with respect to any
Collateral credited to any Collateral Account from time to time to any other
Person other than the Collateral Agent (in its capacity as such);


 


(e)           covenants
that it shall not, subject to applicable law, knowingly take any action
inconsistent with, and represents and covenants that it is not and so long as
this Pledge Agreement remains in effect will not knowingly become, party to any
agreement the terms of which are inconsistent with, the provisions of this
Pledge Agreement;


 


(f)            agrees
that any item of property credited to the Collateral Account shall be treated
as a financial asset;


 


(g)           agrees
that any item of Collateral credited to the Collateral Account shall not be
subject to any security interest, Lien or right of set-off in favor of it as
securities intermediary, except as may be expressly permitted under the
Indenture (and in such capacity shall take such actions as shall be necessary
and appropriate to cause such Collateral to remain free of any Lien or security
interest of any underlying securities intermediary through which it holds such
Collateral or any security entitlement thereto);


 


(h)           agrees
to maintain the Collateral Account and maintain appropriate books and records
in respect thereof in accordance with its usual procedures and subject to the
terms of this Pledge Agreement; and


 


15





















 


(i)            represents
that its jurisdiction as securities intermediary, for purposes of Section
8-110(e) of the N.Y. Uniform Commercial Code and Section 357.11 of the Treasury
Regulations or the corresponding U.S. federal regulations as they pertain to
this Pledge Agreement, the Collateral Account and the security entitlements relating
thereto, shall be the State of New York.


 


SECTION 15.`  Miscellaneous Provisions.


 


15.1.  Notices. 
Any notice,
approval, direction, consent or other communication shall be sufficiently given
if in writing and delivered in person or mailed by first class mail, commercial
courier service or telecopier communication, addressed as follows:


 


if to the Pledgor:


 


Apex Silver Mines Limited

c/o Apex Silver Mines Corporation


1700 Lincoln Street, Suite 3050


Denver, Colorado 80203


Attention: Mark Lettes, Chief Financial Officer


Fax: (303) 764-9165


 


if to the Collateral Agent or the Securities
Intermediary:


 


The Bank of New York

101 Barclay Street

Floor 8 West

New York, New York 10286

Attention:  Corporate Trust
Administration

Telecopier No.:  (212) 815-5707


 


if to the Trustee:


 


The Bank of New York

101 Barclay Street

Floor 8 West

New York, New York 10286

Attention:  Corporate Trust
Administration

TelecopierNo.:  (212) 815-5707


 


or, as
to any such party, at such other address as shall be designated by such party
in a written notice to each other party complying as to delivery with the terms
of this Section 15.1.  All such notices
and other communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; three Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt is confirmed,
if telecopied; and on the next Business Day if timely delivered to an air
courier guaranteeing overnight delivery.


 


16





















 


15.2.  No Adverse Interpretation of Other
Agreements.  This Pledge Agreement may not be used to
interpret another pledge, security or debt agreement of the Pledgor or any
subsidiary thereof.  No such pledge,
security or debt agreement (other than the Indenture) may be used to interpret
this Pledge Agreement.


 


15.3.  Severability.  The provisions of this Pledge Agreement are severable, and if any
clause or provision shall be held invalid, illegal or unenforceable in whole or
in part in any jurisdiction, then such invalidity or unenforceability shall
affect in that jurisdiction only such clause or provision, or part thereof, and
shall not in any manner affect such clause or provision in any other
jurisdiction or any other clause or provision of this Pledge Agreement in any
jurisdiction.


 


15.4. 
Headings.  The headings in this Pledge Agreement have
been inserted for convenience of reference only, are not to be considered a
part hereof and shall in no way modify or restrict any of the terms or
provisions hereof.


 


15.5.  Counterpart Originals.  This Pledge Agreement may be signed in two or more counterparts, each
of which shall be deemed an original, but all of which shall together
constitute one and the same agreement.


 


15.6.  Benefits
of Pledge Agreement.  Nothing in this Pledge Agreement, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Pledge Agreement.


 


15.7.  Amendments,
Waivers and Consents.  Any amendment or waiver of any provision of
this Pledge Agreement and any consent to any departure by the Pledgor, the
Trustee or the Collateral Agent or from any provision of this Pledge Agreement
shall be effective only if made or duly given in compliance with all of the
terms and provisions of the Indenture, and none of the Trustee, the Collateral
Agent, the Pledgor, or any Holder shall be deemed, by any act, delay,
indulgence, omission or otherwise, to have waived any right or remedy hereunder
or to have acquiesced in any default or Event of Default or in any breach of
any of the terms and conditions hereof. 
Failure of the Trustee, the Pledgor, the Collateral Agent or any Holder
to exercise, or delay in exercising, any right, power or privilege hereunder
shall not preclude any other or further exercise thereof or the exercise of any
other right, power or privilege.  A
waiver by the Trustee, the Pledgor, the Collateral Agent or any Holder of any
right or remedy hereunder on any one occasion shall not be construed as a bar
to any right or remedy that the Trustee, the Pledgor, the Collateral Agent or
such Holder would otherwise have on any future occasion.  The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of
any rights or remedies provided by law.


 


15.8. 
[Intentionally Omitted].


 


15.9.  Continuing Security Interest; Termination.


 


(a)           This
Pledge Agreement shall create a continuing security interest in and to the
Collateral and shall, unless otherwise provided in the Indenture or in this
Pledge Agreement, remain in full force and effect until the Termination
Date.  This Pledge Agreement shall be 


 


17





















 


binding upon the parties hereto
and their respective transferees, successors and assigns, and shall inure,
together with the rights and remedies of the Trustee and the Collateral Agent
hereunder, to the benefit of the Trustee, the Collateral Agent, the Pledgor, the
Holders and their respective successors, transferees and assigns.


 


(b)           Upon
the Termination Date, the pledge, assignment and security interest granted
hereby shall terminate and all rights to the Collateral shall revert to the
Pledgor.  At such time, the Collateral
Agent shall promptly reassign and redeliver to the Pledgor all of the
Collateral hereunder that has not been sold, disposed of, retained or applied
by the Collateral Agent in accordance with the terms of this Pledge Agreement
and the Indenture and execute and deliver to the Pledgor such documents as the
Pledgor shall reasonably request to evidence such termination.  Such reassignment and redelivery shall be
without warranty by or recourse to the Collateral Agent or the Trustee in its
capacity as such, except as to the absence of any Liens on the Collateral
created by or arising through the Collateral Agent or the Trustee, and shall be
at the reasonable expense of the Pledgor.


 


15.10.  Survival
Provisions.  All representations, warranties and covenants
contained herein shall survive the execution and delivery of this Pledge
Agreement, and shall terminate only upon the termination of this Pledge
Agreement.  The obligations of the
Pledgor under Sections 11 and 13 hereof and the obligations of the Collateral
Agent under Section 15.9(b) hereof shall survive the termination of this Pledge
Agreement.


 


15.11.  Waivers.  The Pledgor waives presentment and demand for payment of any of the
Obligations, protest and notice of dishonor or default with respect to any of
the Obligations, and all other notices to which the Pledgor might otherwise be
entitled, except as otherwise expressly provided herein or in the Indenture.


 


15.12.   Authority of the Collateral Agent.


 


(a)           The
Collateral Agent shall have and be entitled to exercise all powers hereunder
that are specifically granted to the Collateral Agent by the terms hereof,
together with such powers as are reasonably incident thereto.  The Collateral Agent may perform any of its
duties hereunder or in connection with the Collateral by or through agents or
attorneys, shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder and shall
be entitled to retain counsel and to act in reliance upon the advice of counsel
concerning all such matters.  Except as
otherwise expressly provided in this Pledge Agreement or the Indenture, neither
the Collateral Agent nor any director, officer, employee, attorney or agent of
the Collateral Agent shall be liable to the Pledgor for any action taken or
omitted to be taken by the Collateral Agent, in its capacity as Collateral
Agent, hereunder, except for its own bad faith, gross negligence or willful
misconduct, and the Collateral Agent shall not be responsible for the validity,
effectiveness or sufficiency hereof or of any document or security furnished
pursuant hereto.  The Collateral Agent
and its directors, officers, employees, attorneys and agents shall be entitled
to rely conclusively on any communication, instrument or document believed by
it or them to be genuine and correct and to have been signed or sent by the
proper Person or Persons.  The Collateral
Agent shall have no duty to cause any financing statement or continuation
statement to be filed in respect of the Collateral.


 


18





















 


(b)           The
Pledgor acknowledges that the rights and responsibilities of the Collateral
Agent under this Pledge Agreement with respect to any action taken by the
Collateral Agent or the exercise or non-exercise by the Collateral Agent of any
option, right, request, judgment or other right or remedy provided for herein
or resulting or arising out of this Pledge Agreement shall, as between the
Collateral Agent and the Holders, be governed by the Indenture and by such
other agreements with respect thereto as may exist from time to time among
them, but, as between the Collateral Agent and the Pledgor, the Collateral
Agent shall be conclusively presumed to be acting as agent for the Trustee and
the Holders with full and valid authority so to act or refrain from acting, and
the Pledgor shall not be obligated or entitled to make any inquiry respecting
such authority.


 


15.13.  Final Expression.  This Pledge Agreement, together with the Indenture and any other
agreement executed in connection herewith, is intended by the parties as a
final expression of this Pledge Agreement and is intended as a complete and
exclusive statement of the terms and conditions thereof.


 


15.14.  Rights
of Holders.  No Holder shall have any independent rights
hereunder other than those rights granted to individual Holders pursuant to
Sections 6.05, 6.06 and 6.07 of the Indenture; provided that nothing in this
subsection shall limit any rights granted to the Trustee under the Notes or the
Indenture.


 


15.15.  GOVERNING LAW; SUBMISSION TO JURISDICTION;
WAIVER OF JURY TRIAL; WAIVER OF DAMAGES. 
(a)  THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY
OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN
RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION
OTHER THAN THE STATE OF NEW YORK, AND, EXCEPT TO THE EXTENT THAT THE VALIDITY OR
PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN
RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION
OTHER THAN THE STATE OF NEW YORK, ANY DISPUTE ARISING OUT OF, CONNECTED WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE PLEDGOR,
THE TRUSTEE, THE COLLATERAL AGENT AND THE HOLDERS IN CONNECTION WITH THIS
PLEDGE AGREEMENT, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE,
SHALL BE RESOLVED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.  NOTWITHSTANDING THE FOREGOING, THE MATTERS
IDENTIFIED IN 31 C.F.R. SECTIONS 357.10 AND 357.11 (AS IN EFFECT ON THE DATE OF
THIS PLEDGE AGREEMENT) SHALL BE GOVERNED SOLELY BY THE LAWS SPECIFIED THEREIN.


 


(b)           THE
PLEDGOR HEREBY WAIVES PERSONAL SERVICE OF PROCESS IN ANY SUIT, ACTION OR
PROCEEDING WITH RESPECT TO THIS PLEDGE AGREEMENT AND FOR ACTIONS BROUGHT UNDER
THE U.S. FEDERAL OR STATE SECURITIES LAWS BROUGHT IN ANY FEDERAL OR STATE COURT
LOCATED IN THE CITY OF NEW YORK (EACH A “NEW YORK COURT”) AND CONSENTS THAT ALL
SERVICE OF PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING SHALL 


 


19





















 


BE MADE BY REGISTERED MAIL,
RETURN RECEIPT REQUESTED, DIRECTED TO THE PLEDGOR AT THE ADDRESS INDICATED IN
SECTION 15.1.  EACH OF THE PARTIES HERETO
SUBMITS TO THE JURISDICTION OF ANY NEW YORK COURT AND TO THE COURTS OF ITS
CORPORATE DOMICILE WITH RESPECT TO ANY ACTIONS BROUGHT AGAINST IT AS DEFENDANT
IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF, CONNECTED WITH, RELATED TO,
OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THE PLEDGOR, THE TRUSTEE,
THE COLLATERAL AGENT AND THE HOLDERS IN CONNECTION WITH THIS PLEDGE AGREEMENT,
AND EACH OF THE PARTIES HERETO WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LAYING
OF VENUE, INCLUDING ANY PLEADING OF FORUM NON CONVENIENS, WITH RESPECT TO ANY
SUCH ACTION AND WAIVES ANY RIGHT TO WHICH IT MAY BE ENTITLED ON ACCOUNT OF
PLACE OF RESIDENCE OR DOMICILE.


 


(c)           THE
PLEDGOR AGREES THAT THE TRUSTEE SHALL, IN ITS CAPACITY AS TRUSTEE OR IN THE
NAME AND ON BEHALF OF ANY HOLDER, HAVE THE RIGHT, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, TO PROCEED AGAINST THE PLEDGOR OR THE COLLATERAL IN A COURT IN
ANY LOCATION REASONABLY SELECTED IN GOOD FAITH (AND HAVING PERSONAL OR IN REM
JURISDICTION OVER THE PLEDGOR OR THE COLLATERAL, AS THE CASE MAY BE) TO ENABLE
THE TRUSTEE TO REALIZE ON SUCH COLLATERAL, OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER ENTERED IN FAVOR OF THE TRUSTEE. 
THE PLEDGOR AGREES THAT IT WILL NOT ASSERT ANY COUNTERCLAIMS, SETOFFS OR
CROSSCLAIMS IN ANY PROCEEDING BROUGHT BY THE TRUSTEE TO REALIZE ON SUCH
PROPERTY OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE TRUSTEE,
EXCEPT FOR SUCH COUNTERCLAIMS, SETOFFS OR CROSSCLAIMS WHICH, IF NOT ASSERTED IN
ANY SUCH PROCEEDING, COULD NOT OTHERWISE BE BROUGHT OR ASSERTED.


 


(d)           THE
PLEDGOR AGREES THAT NEITHER ANY HOLDER NOR (EXCEPT AS OTHERWISE PROVIDED IN
THIS PLEDGE AGREEMENT OR THE INDENTURE) THE COLLATERAL AGENT IN ITS CAPACITY AS
COLLATERAL AGENT SHALL HAVE ANY LIABILITY TO THE PLEDGOR (WHETHER ARISING IN
TORT, CONTRACT OR OTHERWISE) FOR LOSSES SUFFERED BY THE PLEDGOR IN CONNECTION
WITH, ARISING OUT OF, OR IN ANY WAY RELATED TO, THE TRANSACTIONS CONTEMPLATED
AND THE RELATIONSHIP ESTABLISHED BY THIS PLEDGE AGREEMENT, OR ANY ACT, OMISSION
OR EVENT OCCURRING IN CONNECTION THEREWITH, UNLESS IT IS DETERMINED BY A FINAL
AND NONAPPEALABLE JUDGMENT OF A COURT THAT IS BINDING ON THE TRUSTEE OR SUCH
HOLDER, AS THE CASE MAY BE, THAT SUCH LOSSES WERE THE RESULT OF ACTS OR OMISSIONS
ON THE PART OF THE COLLATERAL AGENT OR SUCH HOLDERS, AS THE CASE MAY BE,
CONSTITUTING BAD FAITH, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.


 


(e)           TO
THE EXTENT PERMITTED BY APPLICABLE LAW, THE PLEDGOR WAIVES THE POSTING OF ANY
BOND OTHERWISE REQUIRED OF THE TRUSTEE, THE COLLATERAL AGENT OR ANY HOLDER IN
CONNECTION WITH ANY 


 


20





















 


JUDICIAL PROCESS OR PROCEEDING
TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER PERTAINING TO THIS PLEDGE
AGREEMENT OR ANY RELATED AGREEMENT OR DOCUMENT ENTERED IN FAVOR OF THE TRUSTEE,
THE COLLATERAL AGENT OR ANY HOLDER, OR TO ENFORCE BY SPECIFIC PERFORMANCE,
TEMPORARY RESTRAINING ORDER OR PRELIMINARY OR PERMANENT INJUNCTION, THIS PLEDGE
AGREEMENT OR ANY RELATED AGREEMENT OR DOCUMENT BETWEEN THE PLEDGOR, ON THE ONE
HAND, AND THE TRUSTEE, THE COLLATERAL AGENT AND/OR THE HOLDERS, ON THE OTHER
HAND.


 


15.16.  Effectiveness.  This Pledge Agreement shall become effective upon the effectiveness of
the Indenture.


 


[Signature Page Follows]


 


21





















 


IN WITNESS WHEREOF, the Pledgor, the Trustee and the
Collateral Agent have each caused this Pledge Agreement to be duly executed and
delivered as of the date first above written.


 


	
   

  	
  Pledgor:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  APEX SILVER MINES LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark A. Lettes

  	
   

  
	
   

  	
   

  	
   Name: Mark A. Lettes

  
	
   

  	
   

  	
   Title: Chief Financial Officer

  
	
   

  	
  Trustee:

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK,

  
	
   

  	
   

  	
  as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Beata Hryniewicka

  	
   

  
	
   

  	
   

  	
     Name:

  
	
   

  	
   

  	
     Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Collateral Agent and Securities Intermediary

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK,

  
	
   

  	
   

  	
  as Collateral Agent and Securities Intermediary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Beata Hryniewicka

  	
   

  
	
   

  	
   

  	
   Name:

  
	
   

  	
   

  	
   Title:

  
					



 


22





















 


SCHEDULE I


 


List of U.S. Government
Obligations


 


The following U.S. Treasury STRIPS:


 


	
  Maturity Dates

  	
   

  	
  CUSIP

  	
   

  	
  Principal Amount

  	
   

  
	
  15-Feb-05

  	
   

  	
  912820BM8

  	
   

  	
  $

  	
  1,334,000.00

  	
   

  
	
  15-Aug-05

  	
   

  	
  912833CN8

  	
   

  	
  $

  	
  2,000,000.00

  	
   

  
	
  15-Feb-06

  	
   

  	
  912833CP3

  	
   

  	
  $

  	
  2,000,000.00

  	
   

  
	
  15-Aug-06

  	
   

  	
  912833CQ1

  	
   

  	
  $

  	
  2,000,000.00

  	
   

  
	
  15-Feb-07

  	
   

  	
  912833CR9

  	
   

  	
  $

  	
  2,000,000.00

  	
   

  
	
  15-Aug-07

  	
   

  	
  912833CS7

  	
   

  	
  $

  	
  2,000,000.00

  	
   

  
									



 


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