THE NEW CONCENTRATE SALES AGREEMENT, DULY
EXECUTED BY NEW METALS AND MSC;
(XIX)
A WRITTEN LETTER OF RESIGNATION FROM ONE DIRECTOR
OF MSC;
(XX)
A COPY OF ARTICLES OF ASSOCIATION OF NEW METALS
IN THE FORM OF THE GERMAN LANGUAGE VERSION ATTACHED AS EXHIBIT A TO THE METALS
QUOTAHOLDERS AGREEMENT;
(XXI)
A COPY OF ARTICLES OF ASSOCIATION OF NEW CAYMAN IN
THE FORM ATTACHED AS EXHIBIT A TO THE NEW CAYMAN SHAREHOLDERS AGREEMENT;
(XXII)
COUNTERPARTS OF THE REIMBURSEMENT AGREEMENT, DULY
EXECUTED BY APEX;
(XXIII)
US$50,000.00 TO SUMITOMO BY WIRE TRANSFER OF
IMMEDIATELY AVAILABLE DOLLAR FUNDS TO SUCH ACCOUNT OF SUMITOMO AS SUMITOMO HAS
SPECIFIED TO APEX PRIOR TO THE DATE HEREOF IN RESPECT OF A FEE BEING PAID BY
APEX TO SUMITOMO IN CONNECTION WITH SUMITOMO'S EXECUTION AND DELIVERY OF THE
SUMITOMO COMPLETION AGREEMENT;
(XXIV)
THE APEX PARENT GUARANTEES, DULY EXECUTED BY APEX; AND
(XXV)
SUCH OTHER DOCUMENTS AND INSTRUMENTS AS SUMITOMO HAS
REASONABLY REQUESTED.
(B)
SUMITOMO CLOSING DELIVERIES.
AT THE CLOSING, SUMITOMO IS
DELIVERING OR CAUSING TO BE DELIVERED TO APEX, APEX SWEDEN, AND APEX LUXEMBOURG:
(I)
THE PURCHASE PRICE;
(II)
COUNTERPARTS OF THE NEW CAYMAN SHAREHOLDERS AGREEMENT, DULY
EXECUTED BY SUMITOMO;
(III)
THE SUMITOMO GUARANTY, DULY EXECUTED BY SUMITOMO;
(IV)
COUNTERPARTS OF THE DISPUTE RESOLUTION AGREEMENT, DULY EXECUTED BY
SUMITOMO;
(V)
COUNTERPARTS OF THE DEFERRED PAYMENTS AGREEMENT, DULY EXECUTED BY
SUMITOMO;
(VI)
COUNTERPARTS OF THE OPTION AGREEMENT, DULY EXECUTED BY SUMITOMO;
22
(VII)
COUNTERPARTS OF THE REIMBURSEMENT AGREEMENT, DULY
EXECUTED BY SUMITOMO;
(VIII)
A COPY OF THE APEX DISCLOSURE BUNDLE, WHICH COPY HAS
BEEN REVIEWED AND INITIALED BY REPRESENTATIVES OF SUMITOMO IN ORDER TO ENSURE
THAT IT IS IDENTICAL TO THE COPIES BEING RETAINED BY APEX AND SUMITOMO;
(IX)
THE VARIOUS CERTIFICATES, INSTRUMENTS, AND
DOCUMENTS REFERRED TO IN SECTION 6.3;
(X)
COUNTERPARTS OF THE NEW AND AMENDED FINANCING
DOCUMENTS, DULY EXECUTED BY SUMITOMO; AND
(XI)
SUCH OTHER DOCUMENTS AND INSTRUMENTS AS APEX
HAS REASONABLY REQUESTED.
SECTION 2.6
MOU.
SUMITOMO AND APEX HEREBY AGREE THAT UPON THE
EXECUTION AND DELIVERY OF THIS AGREEMENT BY THE PARTIES, THE MOU IS HEREBY
TERMINATED, AND THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS CONTAIN, AND
ARE INTENDED AS, A COMPLETE STATEMENT OF ALL OF THE TERMS OF THE AGREEMENTS
BETWEEN THE PARTIES AND THE OTHER PARTIES THERETO WITH RESPECT TO THE MATTERS
PROVIDED FOR IN THE MOU, AND SUPERSEDE AND DISCHARGE THE MOU.
ARTICLE III
TRANSACTION REPRESENTATIONS AND WARRANTIES
SECTION 3.1
APEX'S REPRESENTATIONS AND WARRANTIES.
APEX REPRESENTS
AND WARRANTS WITH RESPECT TO ITSELF, APEX SWEDEN, APEX LUXEMBOURG, OLD METALS,
AND SERVICE COMPANY TO SUMITOMO THAT THE STATEMENTS CONTAINED IN THIS SECTION
3.1 ARE TRUE, CORRECT, AND COMPLETE AS OF THE DATE OF THIS AGREEMENT (EXCEPT TO
THE EXTENT SUCH REPRESENTATION AND WARRANTY 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)
POWER AND AUTHORITY.
(I) IT HAS ALL REQUISITE CORPORATE OR OTHER
ENTITY POWER