MANAGEMENT SERVICES AGREEMENT

 

TABLE OF CONTENTS

 

			Page
ARTICLE I
DEFINITIONS
1
1.1		Definitions	1
1.2		References	8
ARTICLE II
APPOINTMENT OF MANAGER AND OPERATING COMMITTEE
8
2.1		Appointment of Manager	8
2.2		Operating Committee	8
2.3		Purpose and Authority	9
2.4		Meetings	9
2.5		Program and Budget	10
2.6		Operational Matters	11
ARTICLE III
DESCRIPTION OF SERVICES
12
3.1		Services	12
3.2		Transition and Excluded Services	12
3.3		Freedom of Action	13
ARTICLE IV
COMPENSATION
13
4.1		Fees	13
4.2		Annual Fee	13
4.3		Reimbursable Expenses	13
4.4		Annual Incentive Fee	14
ARTICLE V
INTERRUPTION AND SUSPENSION
15
5.1		Notice Regarding Interruption in Operations	15
5.2		Company-Ordered Suspensions	15
5.3		Adjustments for Interruption in Operations and Company-Ordered Suspensions	16

 

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TABLE OF CONTENTS

(continued)

 

			Page
5.4		Compensation During Suspension	16
5.5		Suspension of Work by Manager	16
5.6		Right to Terminate for Extended Suspension	17
ARTICLE VI
CHANGES AND EMERGENCIES
17
6.1		Material Changes	17
6.2		Emergencies	18
ARTICLE VII
FORCE MAJEURE
18
7.1		Events of Force Majeure	18
7.2		Not Force Majeure	19
7.3		Notice Requirement	19
7.4		Performance Suspended	19
7.5		Adjustments as a Result of Force Majeure	19
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
20
8.1		Parties’ Representations	20
ARTICLE IX
OBLIGATIONS OF THE PARTIES
21
9.1		Covenants of Manager	21
9.2		Covenants of Company and AMM	22
ARTICLE X
SENIOR MANAGEMENT AND PERSONNEL
22
10.1		Senior Management	22
10.2		Personnel	23
ARTICLE XI
INDEMNIFICATION AND LIMITATION OF LIABILITY
23
11.1		Indemnification	23

 

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TABLE OF CONTENTS

(continued)

 

			Page
11.2		Claims of Indemnification	24
11.3		No Liability for Contractors’ Work	25
11.4		Limitation of Liability	25
ARTICLE XII
INSURANCE
25
12.1		Required Coverage	25
12.2		Term of Insurance	25
12.3		Modification of Insurance	26
12.4		Evidence of Insurance	26
12.5		Manager Insurance	26
ARTICLE XIII
TERM AND TERMINATION
26
13.1		Effectiveness	26
13.2		Term	26
13.3		Initial Period	26
13.4		Termination by Company	26
13.5		Termination by Manager	26
13.6		Termination upon Sale Liquidity Event	27
13.7		Effect of Termination	27
ARTICLE XIV
MISCELLANEOUS
28
14.1		Governing Law	28
14.2		Submission to Jurisdiction; Waiver of Jury Trial; Service of Process	28
14.3		Notices	29
14.4		Assignment	30
14.5		Further Assurances	30
14.6		Entire Agreement; Severability	30
14.7		No Waiver	30
14.8		Binding Effect	30

 

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TABLE OF CONTENTS

(continued)

 

 

			Page
14.9		Headings and Titles	30
14.10		No Partnership	30
14.11		Amendment; Counterparts	30

 

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TABLE OF CONTENTS

(continued)

 

Schedule A:		Sumitomo Representatives and Manager Representative
Schedule B:		Approval Authority
Schedule C:		Powers of Attorney
Schedule D:		Services
Schedule E(1):		Transition Services
Schedule E(2):		Excluded Services
Schedule F:		Air Transportation Expenses
Schedule G:		Annual Performance Targets
Schedule H:		Senior Management
Exhibit A:		Sumitomo Guarantee

 

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MANAGEMENT SERVICES AGREEMENT

 

THIS MANAGEMENT SERVICES AGREEMENT is made as of the 24th day of March 2009, by and among Minera San Cristóbal, S.A., a Bolivian sociedad anónima (the “ Company ”), Apex Metals Marketing GmbH, a Gesellschaft mit beschränkter Haftung organized and validly existing under the Laws of Switzerland (“ AMM ”) and Apex Silver Mines Corporation, a Delaware corporation (the “ Manager ”).  Company, Manager and AMM are each referred to herein as a “ Party ” and, collectively, as the “ Parties .”

 

Recitals

 

WHEREAS, Company owns and operates a silver, zinc and lead mine, known as the San Cristóbal Mine (the “ Mine ”), located in the San Cristóbal district, Potosí department, Bolivia, and related assets and infrastructure;

 

WHEREAS, Company is an indirect wholly-owned subsidiary of Sumitomo Corporation, a Japanese Corporation (“ Sumitomo ”), and Sumitomo shall be concurrently executing a parent guarantee with respect to Company’s and AMM’s obligations under this Agreement as a condition of the Parties to enter into this Agreement (the “ Sumitomo Guarantee ”) substantially in the form of Exhibit A hereto;

 

WHEREAS, Manager maintains a staff of highly skilled and experienced mining industry personnel;

 

WHEREAS, AMM is a metals marketing company affiliated with Company; and

 

WHEREAS, Company desires to avail itself of the expertise of Manager and its personnel in the management of the Project (as defined below) and in other areas related to the business of Company.

 

Agreement

 

NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:

 

Article I

 

Definitions

 

1.1            Definitions .  Unless otherwise defined herein, all capitalized terms shall have the meanings ascribed to them in this Section 1.1.

 

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

 

 

“ Agreement ” means this Management Services Agreement together with the Schedules attached hereto, as the same may be amended, restated or modified from time to time.

 

“ AMM ” has the meaning ascribed thereto in the preamble hereof.

 

“ Annual Incentive Fee ” has the meaning ascribed thereto in Section 4.4(a).

 

“ Annual Performance Targets ” has the meaning ascribed thereto in Section 4.4(b).

 

“ Bolivia ” means the Republic of Bolivia.

 

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

 

“ Closing Date ” has the meaning ascribed thereto in the Purchase and Sale Agreement.

 

“ Commodity Hedge Instrument ” means any forward purchase, forward sale, put option, synthetic put option, call option, collar, or any other arrangement relating to commodities entered into by a Person to hedge such Person’s exposure to or to speculate on commodity prices.

 

“ Company ” has the meaning ascribed thereto in the preamble hereof.

 

“ Company Controller ” means the individual enumerated in Schedule A hereto.

 

“ Company Indemnified Party ” has the meaning ascribed thereto in Section 11.1(b).

 

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

 

“ Contract Year ” means a consecutive twelve-month period during the Term from January 1 through December 31; provided , however that the first Contract Year shall commence on the Closing Date and end on December 31, 2009.

 

“ Control ” means the ability to direct or cause the direction (whether through the ownership of voting securities, by contract, or otherwise) of the management and policies of a Person or to control (whether affirmatively or negatively and whether through the ownership of voting securities, by contract, or otherwise) the decision of such Person to engage in the particular conduct at issue.  A Person shall be rebuttably presumed to control an Entity if such Person owns, directly or indirectly through one or more intermediaries, (a) sufficient shares 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 of the 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 interests in such Entity.  The term “Controlled” has a meaning correlative to that of Control.

 

“ Dispute Notice ” has the meaning ascribed thereto in Section 4.4(e).

 

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“ End Date ” means the end of seventy-eight (78) months after the Closing Date.

 

“ Entity ” means any sociedad anónima, sociedad de responsabilidad limitada, Aktiengesellshchaft, Gesellschaft mit beschränkter Haftung, privat aktiebolag, société à responsabilité limitée , corporation, exempted company limited by shares, general or limited partnership, limited liability company, joint venture, trust, association, unincorporated entity of any kind, or Governmental Authority.

 

“ Equity Securities ” means outstanding shares of capital stock of Company and shall not include either (x) loans or other securities which by their terms are convertible into shares of capital stock of Company or (y) loans or other securities which by their terms are not convertible into shares of capital stock of Company.

 

“ Estatutos ” means the estatutos sociales of Company, as hereafter amended, modified, supplemented, and restated.

 

“ Excluded Services ” has the meaning ascribed thereto in Section 3.2.

 

“ Extended Program and Budget ” means the Program and Budget for the prior Contract Year, adjusted for inflation.

 

“ Fee ” has the meaning ascribed thereto in Section 4.2.

 

“ Force Majeure ” has the meaning ascribed thereto in Section 7.1.

 

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

 

“ Hedge Instrument ” means (a) any currency swap agreement, option contract, future contract, option on futures contract, spot or forward contract, or other agreements to purchase or sell currency or any other arrangement entered into by a Person to hedge such Person’s exposure or to speculate on movements in rates of exchange of currencies; (b) any interest rate swap, option contract, futures contract, options on futures contract, cap, floor, collar, or any other similar hedging arrangements entered into by a Person to hedge such Person’s exposure to or to speculate on movements in interest rates; (c) Commodity Hedge Instrument; and (d) any other derivative transaction or hedging arrangement of any type or nature whatsoever that is the subject at any time of trading in the over-the-counter derivatives market.

 

“ 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 of property to another Person subject to an understanding or agreement, contingent or otherwise, to repurchase such property from such other Person); (b) all obligations to pay the deferred purchase price or acquisition price of property or services (other than accrued expenses and trade accounts payable incurred in the 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, or similar instrument; (d) the principal amount of all obligations under or in respect of leases capitalized in

 

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accordance with generally accepted accounting principles as used in the U.S.; (e) all reimbursement obligations in respect of letters of credit or similar instruments issued or accepted by banks and other financial institutions; (f) all payment obligations under any Hedge Instrument to the extent constituting a liability under generally accepted accounting principles as used in the U.S.; and (g) all obligations of another Person of the type listed in clauses (a) through (f) of this definition, payment of which is guaranteed by or secured by Liens on the property of such Person (with respect to Liens, to the extent of the value of property pledged pursuant to such Liens if less than the amount of such obligations).

 

“ Indemnified Party ” has the meaning ascribed thereto in Section 11.1(b).

 

“ Indemnifying Party ” means any Party required to provide indemnification pursuant to Article XI hereof.

 

“ Initial Period ” has the meaning ascribed thereto in Section 13.3.

 

“ Initial Program and Budget ” means that certain San Cristóbal Program and Budget, dated November 1, 2008, concerning the operation of the Project for the calendar year beginning January 1, 2009, and in effect until the subsequent Program and Budget becomes effective at the start of the Contract Year, as amended in accordance with this Agreement.

 

“ 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 or judge, and any writ, order, decree, or ruling of or by any Governmental Authority.

 

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

 

“ Lead Company Representative ” has the meaning ascribed thereto in Section 2.2(d).  When reference is made in this Agreement to decisions or actions to be undertaken by Company, such reference should be understood to be to the Lead Company Representative.

 

“ Lead Manager Representative ” has the meaning ascribed thereto in Section 2.2(e).

 

“ Legal Proceeding ” means any private or governmental action, suit, complaint, claim, demand, arbitration, legal, or judicial or administrative proceeding or investigation, whether civil, criminal, or of any other nature.

 

“ 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, and Licenses granted to other Persons) of any kind, but excluding any of the foregoing created or imposed by or pursuant to this Agreement.

 

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“ Loan ” means any lending of money, extending credit, or making advances to any Person by Company.

 

“ Manager ” has the meaning ascribed thereto in the preamble hereof.

 

“ Manager Indemnified Party ” has the meaning ascribed thereto in Section 11.1(a).

 

“ Manager Representatives ” has the meaning ascribed thereto in Section 2.2(a).

 

“ Materials ” means the materials, apparatus, parts and equipment that are by this Agreement to be procured, erected, installed or placed, or otherwise incorporated into the Project or regularly consumed during performance of the Project.

 

“ Material Change ” has the meaning ascribed thereto in Section 6.1(b)(i).

 

“ Mine ” has the meaning ascribed thereto in the recitals.

 

“ Mining Contract ” means that certain Open Pit Contract Mining Services Agreement, dated as of January 7, 2005, as amended by that certain First Amendment Open Pit Contract Mining Services Agreement, dated as of June 2, 2005, between Company and Washington Group Bolivia S.R.L and as further amended, restated or modified from time to time.

 

“ MSC Board ” means the Board of Directors of Company.

 

“ Operating Committee ” has the meaning ascribed thereto in Section 2.2(a).

 

“ Operating Committee Chairman ” has the meaning ascribed thereto in Section 2.2(c).

 

“ Parties ” or “Party ” have the meanings ascribed thereto in the preamble hereof.

 

“ Permitted Liens ” means, with respect to any Person, the following: (a) Liens for taxes, assessments, or other governmental charges or levies not yet due and payable or that are being contested in good faith through appropriate proceedings diligently conducted and for which adequate reserves (as determined on the basis of generally accepted accounting principles as used in the U.S.) have been established; (b) Liens of carriers, warehousemen, mechanics, materialmen, and landlords incurred in the ordinary course of business; (c) Liens incurred in 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 for borrowed money) entered into in the ordinary course of business or to secure obligations on surety or appeal bonds; and (d) purchase money security interests or Liens on property acquired or held by the applicable Person in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property.

 

“ Person ” means any natural person or Entity.

 

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“ Port Agreement ” means that certain Construction and Port Services Agreement, dated as of September 1, 2003, as amended by that certain First Amendment to the Construction and Port Services Agreement, dated as of March 31, 2005, as further amended by that certain Second Amendment to the Construction Port Services Agreement, dated as of December 16, 2005, between Company and Puerto de Mejillones, S.A. and as further amended, restated or modified from time to time.

 

“ Power Purchase Agreement ” means that certain Power Purchase Agreement, dated March 14, 2008, between Company and Empresa Eléctrica Valle Hermoso S.A. and as amended, restated or modified from time to time, and that certain Power Purchase Agreement, dated March 14, 2008, between Company and Compañia Boliviana de Energía Eléctrica S.A. Bolivian Power Company Limited and as further amended, restated or modified from time to time.

 

“ Program and Budget ” has the meaning ascribed thereto in Section 2.5.

 

“ Project ” means the operation by MSC of the San Cristóbal open pit silver, zinc and lead mine and processing facilities located in the Potosí Department, Bolivia, the mining and processing of silver bearing zinc and lead ores to recover silver, zinc and lead concentrates and related infrastructure (including, but not limited to, rail transportation, power transmission, and port facilities), the exploration and development activities related thereto, and the transportation, marketing, and sale of the products thereof and other activities reasonably ancillary thereto.

 

“ Project Area ” means the concessions and other properties on which the Services are to be executed or carried out as identified in Item 3 on Section 3.3 of the Apex Disclosure Schedule to the Purchase and Sale Agreement.

 

“ Project Contracts ” means the Mining Contract, the Rail Contract, the Port Agreement, the Transmission Line Agreement, the Power Purchase Agreements, the Tire Contract and any other such agreement entered into by Company with respect to the Project.

 

“ Project Contractor ” means the counterparties to the Project Contracts.

 

“ Purchase and Sale Agreement ” means that certain Purchase and Sale Agreement entered into as of January 12, 2009, by and among Apex Silver Mines Limited, Apex Luxembourg S.Á.R.L., Apex Silver Mines Sweden AB, Manager, ASC Bolivia LDC, Sumitomo and SC Minerals Aketiebolag, as amended, restated or modified from time to time.

 

“ Rail Contract ” means that certain Transportation Agreement, dated as of March 15, 2005, between Company and Antofagasta Railway Company PLC, as amended, restated or modified from time to time.

 

“ Reimbursable Expenses ” has the meaning ascribed thereto in Section 4.3(a).

 

“ Reviewing Accountant ” has the meaning ascribed thereto in Section 4.4(g).

 

“ Sale Liquidity Event ” means any transaction or series of transactions resulting in the sale or transfer, whether direct or indirect, by Sumitomo and/or any Sumitomo Affiliate to any Person or Persons that is or are not a Sumitomo Affiliate (x) of an aggregate amount of Equity Securities

 

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of Company that results in Sumitomo’s Percentage of all Equity Securities immediately after such sale or transfer being less than eighty percent (80%) or (y) that results in such Person or Persons obtaining the power (whether or not exercised) to elect a majority of the board of directors (or similar governing body) of Company.

 

“ Secretary ” has the meaning ascribed thereto in Section 2.2(f).

 

“ Senior Management ” has the meaning ascribed thereto in Section 10.1(a).

 

“ Services ” has the meaning ascribed thereto in Section 3.1.

 

“ Significant Operational Matter ” has the meaning ascribed thereto in Section 2.6(c).

 

“ Subcontractor ” means any Person or Entity, including, but limited to, suppliers of Materials and, that provides services or Materials for part of the Project under a contractual agreement with a Project Contractor.

 

“ Sumitomo ” has the meaning ascribed thereto in the recitals.

 

“ Sumitomo Affiliate ” means any Entity Controlled by Sumitomo.

 

“ Sumitomo Guarantee ” has the meaning ascribed thereto in the recitals.

 

“ Sumitomo Representatives ” has the meaning ascribed thereto in Section 2.2(a).

 

“ Sumitomo’s Percentage ” means the percentage of Company’s outstanding Equity Securities, based on the voting power thereof, owned by Sumitomo and its Affiliates on (or immediately before or after, as applicable) the date of a Sale Liquidity Event or the End Date, as applicable.

 

“ Term ” has the meaning ascribed thereto in Section 13.2.

 

“ Tire Contract ” means that certain Tire Supply Agreement, dated as of July 7, 2008, between Company and Prove SRL, as amended, restated or modified, from time to time.

 

“ Transmission Line Agreement ” means that certain Power Line Construction and Transmission Agreement, dated as of January 14, 2005, as amended by that certain First Amendment to Power Line Construction and Transmission Agreement, dated as of March 14, 2005, as further amended by that certain Second Amendment to Power Line Construction and Transmission Agreement, dated as of August 29, 2005, among Company, Ingelec S.A., Ingelec Transportadora de Electricidad S.A., Ingelec Electricity Transportation Investments, Corp., and San Cristóbal Transportadora de Electricidad, S.A. and as further amended, restated or modified from time to time.

 

“ Transition Phase ” has the meaning ascribed thereto in Section 3.2.

 

“ Transition Services ” has the meaning ascribed thereto in Section 3.2.

 

“ VAT ” has the meaning ascribed thereto in Section 4.1.

 

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“ VPGM ” has the meaning ascribed thereto in Section 10.1(a)

 

1.2            References .  (a)  All references in this Agreement to Exhibits, Schedules, Articles, Sections, Subsections, and other subdivisions refer to the Exhibits, Schedules, Articles, Sections, Subsections, and other subdivisions of this Agreement unless expressly provided otherwise.

 

(b)            The words “this Agreement,” “herein,” “hereby,” “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited.  The phrases “this Section” and “this Subsection” and similar phrases refer only to the Sections or Subsections in which the phrase occurs.  The use herein of the words “include” or “including” when following any general statement, term or matter should not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not limiting language is used with reference thereto, but rather should be deemed to refer to all other matters that fall within the broadest scope of the general statement, term or matter.  The word “or” is not exclusive.  Pronouns in masculine, feminine, and neuter gender shall be construed to include any other gender.  Words in the singular form shall be construed to include the plural, and words in the plural form shall be construed to include the singular, unless the context otherwise requires.

 

Article II

 

Appointment of Manager and Operating Committee

 

2.1            Appointment of Manager .  On the terms and conditions herein stated, Company engages Manager to provide the Services described in this Agreement in connection with the organization, management, coordination and operation of the Project.  Manager accepts such engagement pursuant and subject to the terms and conditions of this Agreement.

 

2.2            Operating Committee .  (a)  Establishment .  Company shall establish an operating committee for the Project (the “ Operating Committee ”), which shall operate under the supervision of the MSC Board.  The Operating Committee shall consist of one or more representatives of Sumitomo (and one or more alternates therefor selected from time to time by written notice) (the “ Sumitomo Representatives ”) and one or more representatives of Manager (and one or more alternates therefor selected from time to time by written notice) (the “ Manager Representatives ”).  The Sumitomo Representatives shall include the Operating Committee Chairman.  The Manager Representatives shall include the Lead Manager Representative and other members consisting of the VPGM and the Company Controller.  The Parties further acknowledge and agree that the Sumitomo Representatives and Manager Representatives as of the Closing Date shall be as listed on Schedule A hereto; provided that each of Sumitomo and Manager shall have the right in its sole discretion to change its respective representatives from time to time and whenever it believes such change is necessary or appropriate.

 

(b)            Voting .  The Sumitomo Representatives have full voting authority and the Manager Representatives have none.  However, the Manager Representatives shall be entitled to state their agreement with or objection to Operating Committee decisions and, if so stated, such agreement or objection shall be included in the minutes of the meetings of the Operating Committee.

 

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(c)            Operating Committee Chairman .  The chairperson of the Operating Committee (the “ Operating Committee Chairman ”) shall be appointed by Sumitomo from the Sumitomo Representatives and shall have duties as shall be determined by the Operating Committee.  The initial Operating Committee Chairman shall be as set forth on Schedule A .

 

(d)            Lead Company Representative .  The lead representative of Company (the “ Lead Company Representative ”) shall be the direct contact between Company and Manager and the Lead Manager Representative on all issues relating to the performance of the Services for the Project and any related issues pursuant to the terms of this Agreement through which Company must communicate with Manager or related to any matter by which Manager needs to communicate with Company.  The initial Lead Company Representative shall be as set forth on Schedule A and may be changed at the sole discretion of Company from time to time upon written notice to Manager.

 

(e)            Lead Manager Representative .  The lead representative of Manager  (the “ Lead Manager Representative ”) shall be the direct contact with the Lead Company Representative on all issues relating to the performance of the Services for the Project and any related issue pursuant to the terms of this Agreement through which Company must communicate with Manager or related to any matter by which Manager needs to communicate with Company.  The initial Lead Manager Representative appointed by Manager shall be Mr. Terry Owen and may be changed at the sole discretion of Manager from time to time upon written notice to Company.

 

(f)             Secretary .  The secretary of the Operating Committee (the “ Secretary ”) shall be designated by the Manager Representatives from time to time and the Secretary’s powers shall be limited to promptly and clearly recording and entering into the records of Company the minutes of the meetings of the Operating Committee.

 

2.3            Purpose and Authority .  The Operating Committee shall review and adopt Programs and Budgets and shall recommend such Programs and Budgets to Company for its consideration and approval.  Except as set forth in the preceding sentence, the sole purpose of the Operating Committee shall be to provide a forum for the Sumitomo Representatives and the Manager Representatives to meet and communicate, in accordance with Section 2.4(a) and (b) below, in order to discuss and exchange information, ideas and opinions with respect to the operation and management of the Project.

 

2.4            Meetings .  (a)  Regular meetings of the Operating Committee shall be held at least once every calendar quarter in person, at such times and places as the Operating Committee Chairman and the Lead Manager Representative agree.  Regular meetings shall be held in a location reasonably convenient to all the representatives on such Committee in any of Denver, Colorado, U.S.A., New York, New York, U.S.A., La Paz, Bolivia or Tokyo, Japan, unless the Operating Committee Chairman and Lead Manager Representative otherwise agree.  The Operating Committee Chairman or his designee shall give at least fourteen (14) days advance notice of regular meetings by facsimile, email or telephone unless otherwise agreed or waived by the Operating Committee Chairman and the Lead Manager Representative.  Delivery of notice by electronic transmission via email with a notation in the subject line “MSC Operating Committee – Formal Notice” shall be effective.

 

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(b)            Special meetings of the Operating Committee may be called by the Operating Committee Chairman on his or her own initiative and shall be called if requested by the Lead Manager Representative.  The Operating Committee Chairman or his designee shall give at least three (3) Business Days advance notice of special meetings unless otherwise agreed by the Operating Committee Chairman and the Lead Manager Representative, provided that in the case of emergency the Operating Committee shall meet as soon as practicable.  Notice of special meetings shall be given by facsimile, email or telephone.  Delivery of notice by telephone or by electronic transmission via email with a notation in the subject line “MSC Operating Committee — Formal Notice” shall be effective.

 

(c)            Representatives on the Operating Committee and alternate representatives may participate in the Operating Committee’s regular and special meetings through telephone conference calls, videoconferences, or any other technological means available.  One or more individuals and other necessary personnel may accompany any representative to any meetings of the Operating Committee.  The Secretary shall cause minutes of such meetings to be recorded promptly and clearly and entered into the records of Company.

 

(d)            Any action required or permitted to be taken at any meeting of the Operating Committee may be taken without a meeting, if prior to such action a written consent thereto is signed by at least one Sumitomo Representative and notice of such consent is promptly provided to a Manager Representative, and such written consent is filed with the minutes of proceedings of the Operating Committee.

 

(e)            The establishment of the Operating Committee and the appointment of Manager to perform the Services hereunder shall in no way limit the right of Company or the MSC Board to be the sole arbiter of Company’s affairs and have sole authority to appoint Company’s officers.

 

2.5            Program and Budget .

 

(a)            Initial Program and Budget .  The Initial Program and Budget for the calendar year commencing January 1, 2009, has been approved by Company.  The Initial Program and Budget may be amended, modified, and revised from time to time by Manager, subject to consideration and approval by Company.

 

(b)            Subsequent Programs and Budgets .  (i)  For each Contract Year beginning with the Contract Year commencing on January 1, 2010, a proposed program and budget (the “ Program and Budget ”) shall be prepared by Manager and submitted to the Operating Committee at least forty five (45) days prior to the start of such Contract Year.  Unless otherwise agreed by the Operating Committee, each such proposed Program and Budget shall cover a five-year period, with the first year of such Program and Budget containing monthly projections and the subsequent four years of such Program and Budget containing annual projections.

 

(ii)            Manager may revise, clarify or amend the proposed Program and Budget, subject to consideration and approval by Company.

 

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(iii)           Company shall approve each proposed Program and Budget, with any approved revisions, clarifications or amendments, no later than thirty (30) days prior to the period to which such proposed Program and Budget applies.

 

(iv)           In the event that the Program and Budget is not approved by Company within the timeframe set forth in Subsection (iii) above, Manager shall operate the Project and perform its obligations hereunder pursuant to the Extended Program and Budget until a new Program and Budget is so approved.

 

(c)            Company Modifications .  Company (in consultation with Manager) may amend, modify or revise the Initial Program and Budget or any subsequent Program and Budget to reflect such changes that in Company’s reasonable judgment may be necessary for the Project.

 

2.6            Operational Matters .  (a)  Manager shall have the authority, subject to the limitations and in the manner set forth herein, to operate the Project and perform its obligations hereunder substantially in accordance with the then-current Program and Budget approved by Company, and senior employees of Manager shall have the authority to commit Company to incur authorized expenditures in respect of the operation of the Project and performance of the obligations hereunder subject to monetary limitations in accordance with Schedule B hereto as specified by Sumitomo in consultation with Manager prior to the Closing Date, provided that Manager and its senior employees shall be granted sufficient authority for the execution of the Programs and Budgets as approved by Company, including operations and production, procurement, general and personnel management and contract execution and for the performance of the Services for the Project in accordance with the terms and conditions of this Agreement.  Company shall have the right in its sole discretion to modify or amend Schedule B or otherwise limit or place conditions upon the discretionary powers and authority granted to Manager under this Agreement at any time and from time to time; provided that all such modifications or amendments shall be done in consultation with Manager; and provided further that upon the effectiveness of such modification or amendment, Manager and its employees shall continue to have sufficient authority for the execution of the Programs and Budgets as approved by Company and Manager’s performance of the Services hereunder.

 

(b)            To perform its duties under this Agreement, Company shall grant and maintain certain powers of attorney specified in Schedule C hereto as specified by Sumitomo in consultation with Manager prior to the Closing Date, provided that the powers of attorney shall be sufficient for the execution of the Programs and Budgets as approved by the Company, including operations and production, procurement, general and personnel management and contract execution and for the performance of the Services for the Project in accordance with the terms and conditions of this Agreement.  Company retains the right to revoke any power of attorney granted hereunder, provided that in the event that a power of attorney is revoked by Company, Manager