FINANCING
DOCUMENTS WHOSE CONSENT AND APPROVAL IS REQUIRED TO CONSUMMATE AS PROMPTLY AS
PRACTICABLE FOLLOWING THE CLOSING, WITHOUT ANY ADDITIONAL CONSIDERATION
HEREUNDER THEREFOR, (A) THE ASSIGNMENT BY ASC BOLIVIA TO SUMITOMO OR ITS
DESIGNATED WHOLLY-OWNED SUBSIDIARY OF 35% OF ALL THE RIGHT, TITLE, AND INTEREST
OF ASC BOLIVIA IN AND TO 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 CONSTITUTING THE TRANSMISSION LINE LOAN DOCUMENTS, OR (3) EXISTING UNDER
THE FINANCING DOCUMENTS OR THE TRANSACTION DOCUMENTS, AND (B) THE ASSUMPTION BY
SUMITOMO OF 35% OF ALL THE LIABILITIES AND OBLIGATIONS OF ASC BOLIVIA UNDER THE
TRANSMISSION LINE LOAN DOCUMENTS; PROVIDED, THAT, EXCEPT AS OTHERWISE
SPECIFICALLY REQUIRED BY THIS AGREEMENT, NO LOAN AGREEMENT OR CONTRACT FOR
BORROWED MONEY SHALL BE REPAID EXCEPT AS CURRENTLY REQUIRED BY ITS TERMS, IN
WHOLE OR IN PART, AND NO CONTRACT SHALL BE AMENDED TO INCREASE THE AMOUNT
PAYABLE THEREUNDER OR OTHERWISE TO BE MORE BURDENSOME TO THE PROJECT, MSC, NEW
METALS, NEW CAYMAN, OR ASC BOLIVIA IN ORDER TO OBTAIN ANY SUCH CONSENT OR
APPROVAL WITHOUT FIRST OBTAINING THE APPROVAL OF APEX AND SUMITOMO AND NO PARTY
SHALL BE REQUIRED TO MAKE ANY CASH PAYMENT OR RELINQUISH ANY PROPERTY OR
CONTRACTUAL RIGHTS OR CHANGE IN ANY MANNER ITS OPERATIONS OR THE OPERATIONS OF
ITS SUBSIDIARIES TO OBTAIN ANY SUCH CONSENT OR APPROVAL EXCEPT FOR FILING FEES
AND FEES AND EXPENSES OF ATTORNEYS, ACCOUNTANTS, AND OTHER PROFESSIONAL ADVISORS
AND PAYMENTS IN ACCORDANCE WITH THE TERMS OF CONTRACTS EXISTING ON THE DATE
HEREOF; AND (II) EACH PARTY SHALL, AND SHALL CAUSE ITS RESPECTIVE SUBSIDIARIES
AND AFFILIATES TO, COOPERATE AND USE ITS RESPECTIVE COMMERCIALLY REASONABLE
EFFORTS TO TAKE, OR CAUSE TO BE TAKEN, ALL APPROPRIATE ACTION TO CAUSE TO BE
MADE ANY NECESSARY AMENDMENTS TO THE TRANSMISSION LINE LOAN DOCUMENTS, THE
FINANCING DOCUMENTS, AND THE NEW AND AMENDED FINANCING DOCUMENTS TO EFFECT THE
SAME.
AT THE CLOSING, THE TRANSACTIONS REFERRED TO IN CLAUSES (A) AND (B) OF
THE IMMEDIATELY PRECEDING SENTENCE SHALL BE DEEMED, AS BETWEEN ASC BOLIVIA AND
SUMITOMO, TO HAVE OCCURRED AT THE CLOSING, 35% OF ALL GAINS, INCOME, LOSSES, AND
LIABILITIES RELATED TO THE TRANSMISSION LINE LOAN DOCUMENTS ON OR AFTER THE
CLOSING TO BE FOR THE ACCOUNT OF SUMITOMO, AND ASC BOLIVIA SHALL ACCEDE TO THE
DISPUTE RESOLUTION AGREEMENT AND BECOME A PARTY THERETO; PROVIDED,
HOWEVER, IF
THE ASSIGNMENT OF 35% OF THE INTEREST IN ASC BOLIVIA TO SUMITOMO, AS SET FORTH
IN THIS SECTION 5.3(B), IS NOT CONSUMMATED FOR ANY REASON, APEX EXPRESSLY AGREES
TO PROMPTLY PAY TO SUMITOMO ANY AND ALL PROCEEDS THAT WOULD OTHERWISE HAVE BEEN
PAID TO SUMITOMO IF THE ASSIGNMENT HAD IN FACT OCCURRED AS OF THE DATE HEREOF.
41
(C)
IN ACCORDANCE WITH SECTION 2.2(C)(II) OF THE MSC SHAREHOLDERS
AGREEMENT, PROMPTLY FOLLOWING THE EXECUTION AND DELIVERY OF THIS AGREEMENT,