1
Exhibit 4.1(c)
AMENDED AND RESTATED
COLLATERAL TRUST AND SECURITY AGREEMENT
DATED AS OF JULY 15, 0000
XXXXXXX
XXXXXXXX XXXX LIMITED,
ISSUER
AND
DEUTSCHE BANK AG, NEW YORK BRANCH,
COLLATERAL TRUSTEE
2
TABLE OF CONTENTS
-----------
PAGE
----
ARTICLE 1
DEFINITIONS
ARTICLE 2
SECURITY INTERESTS
SECTION 2.01. Grant of Security Interest....................................... 14
SECTION 2.02. Excluded Export Receivables...................................... 15
SECTION 2.03. Preservation of Rights; Shared Security Interest................. 16
SECTION 2.04. Additional Percentage Interest................................... 17
ARTICLE 3
ACCOUNTS
SECTION 3.01. Proceeds of Export Receivables................................... 18
SECTION 3.02. Collection Account............................................... 19
SECTION 3.03. Supplemental Agreements for Additional Secured Obligations....... 20
SECTION 3.04. Determination of Series Total Collateral Percentage, Credit
Facility Total Collateral Percentage and Designated Total Collateral
Percentage............................................................. 20
SECTION 3.05. Designation of Secured Letters of Credit and Secured Hedge
Agreements; Supplemental Agreements for Subordinated Secured
Obligations............................................................ 21
ARTICLE 4
PERFECTION
SECTION 4.01. Delivery and Other Perfection.................................... 23
SECTION 4.02. Other Financing Statements and Liens............................. 24
SECTION 4.03. Representations and Warranties................................... 24
SECTION 4.04. Issuer Remains Liable............................................ 25
i
3
PAGE
----
ARTICLE 5
REMEDIES
SECTION 5.01. Notices of Default; Remedies Subject to Intercreditor
Arrangements and Issuer's Interest in the Collateral................... 25
SECTION 5.02. General Authority of the Collateral Trustee over the Collateral.. 26
SECTION 5.03. Remedies Generally; Right to Initiate Judicial Proceedings....... 27
SECTION 5.04. Right to Appoint a Receiver...................................... 28
SECTION 5.05. Waiver and Estoppel.............................................. 28
SECTION 5.06. Limitation on Collateral Trustee's Duty in Respect of Collateral. 29
SECTION 5.07. Payments......................................................... 29
SECTION 5.08. Stamp and Other Similar Taxes.................................... 29
SECTION 5.09. Filing Fees, Excise Taxes, Etc................................... 29
SECTION 5.10. Indemnification.................................................. 29
SECTION 5.11. Deficiency....................................................... 30
SECTION 5.12. Removals, Etc.................................................... 30
SECTION 5.13. Termination...................................................... 30
SECTION 5.14. Further Assurances............................................... 30
ARTICLE 6
INTERCREDITOR ARRANGEMENTS
SECTION 6.01. Limitations Concerning Collateral................................ 31
SECTION 6.02. Exercise of Powers; Instructions of Required Secured Parties..... 31
SECTION 6.03. Subordination.................................................... 32
ARTICLE 7
THE COLLATERAL TRUSTEE
SECTION 7.01. Acceptance of Trust.............................................. 33
SECTION 7.02. Exculpatory Provisions........................................... 33
SECTION 7.03. Delegation of Duties............................................. 34
SECTION 7.04. Reliance by Collateral Trustee................................... 34
SECTION 7.05. Limitations on Duties of Collateral Trustee...................... 35
SECTION 7.06. Moneys to Be Held in Trust....................................... 36
SECTION 7.07. Resignation and Removal of the Collateral Trustee................ 36
SECTION 7.08. Status of Successor Collateral Trustee........................... 38
SECTION 7.09. Merger of the Collateral Trustee................................. 38
ii
4
PAGE
----
SECTION 7.10. Treatment of Payee or Indorsee by Collateral Trustee;
Representatives of Secured Parties..................................... 38
SECTION 7.11. Reports by Collateral Trustee.................................... 38
ARTICLE 8
MISCELLANEOUS
SECTION 8.01. No Waiver........................................................ 39
SECTION 8.02. Notices.......................................................... 39
SECTION 8.03. Expenses......................................................... 40
SECTION 8.04. Amendments, Etc.................................................. 40
SECTION 8.05. Successors and Assigns........................................... 41
SECTION 8.06. Captions......................................................... 41
SECTION 8.07. Counterparts..................................................... 41
SECTION 8.08. Governing Law.................................................... 42
SECTION 8.09. Agents and Attorneys-in-Fact..................................... 42
SECTION 8.10. Severability..................................................... 42
SECTION 8.11. Jurisdiction and Process......................................... 42
SECTION 8.12. Secured Parties Bound............................................ 43
SECTION 8.13. Effectiveness.................................................... 43
iii
5
AMENDED AND RESTATED
COLLATERAL TRUST AND SECURITY AGREEMENT
AMENDED AND RESTATED COLLATERAL TRUST AND SECURITY AGREEMENT dated as
of July 15, 0000 xxxxxxx XXXXXXXX XXXX LIMITED, a Delaware corporation (together
with its successors and assigns, the "Issuer"), and DEUTSCHE BANK AG, NEW YORK
BRANCH, as collateral trustee for the Secured Parties (as hereinafter defined)
(together with its successors in such capacity the "Collateral Trustee").
The Issuer is a party to the Credit and Guarantee Agreement, dated as
of March 31, 1997 (as amended, refinanced or replaced from time to time, the
"Credit Facility Agreement"), among Southern Peru Copper Corporation, a Delaware
corporation, as Guarantor ("together with its successors and assigns, SPCC"),
the Issuer, the several banks and other financial institutions from time to time
parties thereto (collectively, the "Credit Facility Lenders"), Xxxxxx Guaranty
Trust Company of New York, as Administrative Agent for the Lenders (together
with its successors, in such capacity, the "Administrative Agent"), The Chase
Manhattan Bank, as Documentation Agent for the Lenders (in such capacity, the
"Documentation Agent"), Citicorp Securities, Inc., as Syndication Agent (in such
capacity, the "Syndication Agent"), and Deutsche Bank AG, New York Branch, as
Security and Collateral Agent for the Lenders (together with its successors, in
such capacity, the "Collateral Agent"; together with the Administrative Agent,
the Documentation Agent and the Syndication Agent, the "Credit Facility
Agents").
The Issuer is a party to an Indenture, dated as of May 30, 1997, among
the Issuer, SPCC and Citibank, N.A., as Trustee (the "Original Indenture")
establishing the Issuer's Secured Export Note Program (the "Program") under
which the Issuer may issue up to an aggregate amount of $750,000,000 of Secured
Export Notes (the "SENS").
The Issuer may also issue or incur Additional Secured Obligations (as
hereinafter defined) as contemplated by this Collateral Trust and Security
Agreement.
To induce the Indenture Trustee (as hereinafter defined) to enter into
the Indenture and to induce the Noteholders (as hereinafter defined) to purchase
the SENS issued pursuant to the Indenture, and the Credit Facility Lenders to
make loans under the Credit Facility Agreement, and the holders of Additional
Secured Obligations to purchase (or make loans in respect of) such Additional
Secured Obligations and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Issuer has agreed to
pledge and grant a security interest in the Export Contracts, the Export
Receivables, the Proceeds of the Export Contracts and Export Receivables and the
6
Collection Account (as hereinafter defined) as security for the Credit Facility
Secured Obligations, the SENS Secured Obligations, and the Additional Secured
Obligations (as hereinafter defined), if any. Accordingly, the parties hereto
agree as follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
"Accounts" means the Collection Account, the Series Collateral
Account for each Series of SENS, the Credit Facility Collateral
Account, and any other applicable account established in connection
with the issuance of any Senior Secured Obligations.
"Additional Percentage" means, for any date with respect to
any Secured Parties, such additional percentage interest (in excess of
such Secured Parties' Basic Percentage) in the Collateral as may be
designated by the Issuer for the benefit of such Secured Parties in
accordance with Section 2.04 hereof.
"Additional Secured Obligations" means any debt issued by the
Issuer or loan made to the Issuer, after the date hereof but prior to
the termination of this Agreement, secured by a security interest in
the Collateral pursuant to Section 3.03 hereof; provided that the SENS
Secured Obligations and Credit Facility Secured Obligations may not be
designated as "Additional Secured Obligations" pursuant to this
Agreement.
"Affiliate" means, with respect to the Issuer, any Person
which, directly or indirectly, is in control of, is controlled by, or
is under common control with, the Issuer.
"Agreement" means this Amended and Restated Collateral Trust
and Security Agreement, as amended, supplemented or otherwise modified
from time to time.
"Attributable Principal Amount" means, with respect to any
Additional Secured Obligations, the product of (a) the Designated Total
Collateral Percentage for such Additional Secured Obligations times (b)
the Program Amount then in effect.
2
7
"Basic Percentage" means, at any time with respect to any
Secured Parties, (a) if such Secured Parties are the holders of any
Series of SENS and the Indenture Trustee, the Series Basic Collateral
Percentage for such Series at such time, (b) if such Secured Parties
are the Credit Facility Lenders and Credit Facility Agents, the Credit
Facility Basic Collateral Percentage at such time and (c) if such
Secured Parties are the holders of Additional Secured Obligations, the
Designated Basic Collateral Percentage for such Additional Secured
Obligations at such time.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or
required by law to close.
"Collateral" shall have the meaning set forth in Section 2.01
hereof.
"Collection Account" shall have the meaning set forth in
Section 3.02 hereof.
"Collections" means all collections and other Proceeds
received in respect of Export Contracts and Export Receivables
(including as a result of the exercise of any remedies hereunder).
"Commitment Termination Date" means March 31, 2001 or such
other date on which all commitments under the Credit Facility Agreement
shall terminate as provided therein.
"Copper" means anode copper, blister copper, cathodes, copper
concentrates, and electrolytic and electrowon cathodes.
"Credit Facility" means the credit facilities provided
pursuant to the Credit Facility Agreement.
"Credit Facility Basic Collateral Percentage" means, at any
time, the percentage equivalent of a fraction, the numerator of which
shall be the aggregate principal amount of loans outstanding under the
Credit Facility at such time and the denominator of which shall be the
Program Amount then in effect; provided that, from the Commitment
Termination Date until the payment in full of all Credit Facility
Secured Obligations, the numerator of such fraction shall be (a) the
aggregate principal amount of loans outstanding under the Credit
Facility Agreement on the Commitment Termination Date minus (b) the
aggregate principal amount of such loans that have been permanently
optionally prepaid or
3
8
permanently mandatorily prepaid as a result of the issuance of SENS or
Additional Secured Obligations (to the extent that the sum of the
aggregate principal amount so prepaid plus the aggregate principal
amount of all scheduled principal payments (after giving effect to any
reduction in such scheduled payments as a result of such prepayment)
made prior to such time exceeds the aggregate principal payments
originally scheduled to have been made by such time) subsequent to the
Commitment Termination Date.
"Credit Facility Secured Obligations" shall mean the
collective reference to the unpaid principal of and interest on the
loans under the Credit Facility Agreement and all other obligations and
liabilities of the Issuer (including, without limitation, interest
accruing at the then applicable rate provided in the Credit Facility
Agreement after the maturity of such loans and interest accruing at the
then applicable rate provided in the Credit Facility Agreement after
the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding relating to the Issuer,
whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) to the Administrative Agent, the Collateral
Agent, any other Credit Facility Agent or any Credit Facility Lender,
whether direct or indirect, absolute or contingent, due or to become
due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, the Credit Facility Agreement, the other
Loan Documents (as defined in the Credit Facility Agreement) or any
other document made, delivered or given in connection therewith, in
each case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel
to the Administrative Agent, the Collateral Agent or any other Credit
Facility Agent or to the Credit Facility Lenders that are required to
be paid by the Issuer pursuant to the terms of any of the foregoing
agreements).
"Credit Facility Total Collateral Percentage" means, at any
time, the percentage interest in the Collateral of the Credit Facility
Lenders, which shall be equal to the Credit Facility Basic Collateral
Percentage at such time plus the Additional Percentage applicable to
the Credit Facility, if any, at such time.
"Designated Basic Collateral Percentage" means, with respect
to any Additional Secured Obligations, the percentage interest in the
Collateral of the holders of such Additional Secured Obligations
designated by the Issuer pursuant to Section 3.03 hereof in connection
with the issuance or incurrence of such Additional Secured Obligations,
as such percentage may, subject to the provisions of this Agreement, be
adjusted from time to time pursuant to the Senior Secured Instruments
under which such Additional Secured Obligations were issued.
4
9
"Designated Total Collateral Percentage" means, at any time
with respect to any Additional Secured Obligations, the Designated
Basic Collateral Percentage for such Additional Secured Obligations at
such time plus the Additional Percentage applicable to such Additional
Secured Obligations, if any, at such time.
"Duff & Xxxxxx" means Duff & Xxxxxx Credit Rating Co.
"Eligible Investments" means the following investments:
(1) any indebtedness, issued by, or fully guaranteed by or insured
by, the United States of America, or any agency or
instrumentality of the United States of America;
(2) demand and time deposits in, certificates or deposit of,
bankers' acceptances issued by, or Federal funds sold by any
commercial bank, depository institution or trust company, so
long as at the time of such investment or contractual
commitment providing for such investment the unsecured
commercial paper or other unsecured short-term debt
obligations of such commercial bank, depositary institution or
trust company have a credit rating of at least A-1 from
Standard & Poor's and P-1 from Moody's, and at least D-1 from
Duff & Xxxxxx, if rated by Duff & Xxxxxx;
(3) unsecured debt securities bearing interest or sold at a
discount issued by (i) a corporation (other than an Affiliate
of the Issuer) incorporated under the laws of the United
States of America or any State thereof or the District of
Columbia or (ii) any commercial bank, depository institution
or trust company, which have, at the time of such investment,
a credit rating of at least A-1 by S&P and at least P-1 by
Moody's and at least D-1 from Duff & Xxxxxx, if rated by Duff
& Xxxxxx;
(4) unsecured commercial paper which has, at the time of such
investment, a rating of at least P-1 from Standard & Poor's
and P-1 from Moody's and at least D-1 from Duff & Xxxxxx, if
rated by Duff & Xxxxxx;
(5) repurchase obligations with respect to any security described
in clauses (1), (2), (3) or (4) above, in each case entered
into with either (i) a commercial bank, a depository
institution or trust company (acting as principal) which, in
respect of its unsecured commercial paper or other short-term
unsecured debt, has credit ratings of at least A-1 from
Standard
5
10
& Poor's and P-1 from Moody's and at least D-1 from Duff &
Xxxxxx, if rated by Duff & Xxxxxx; or (ii) a money market fund
maintained by a bank or a broker (which may be a money market
fund managed by Citibank, N.A. or any person who acts as a
successor Trustee) which, in respect of its unsecured
commercial paper or short-term unsecured debt, has a credit
rating of at least A-1 from Standard & Poor's and P-1 from
Moody's and at least D-1 from Duff & Xxxxxx, if rated by Duff
& Xxxxxx; and
(6) a money market fund maintained by a bank or broker (which may
be a money market fund managed by Citibank, N.A. or any person
who acts as a successor Trustee) which fund has a credit
rating of at least AAA-M from Standard & Poor's and Aaa from
Moody's and at least the equivalent rating from Duff & Xxxxxx,
if rated by Duff & Xxxxxx; provided that this category (6) of
investment shall have been accepted by each Rating Agency.
"Excess Percentage" means, at any time, 100% minus the sum of
(i) the SENS Total Collateral Percentage at such time and (ii) the
Credit Facility Total Collateral Percentage at such time and (iii) the
aggregate Designated Total Collateral Percentages for all Additional
Secured Obligations at such time.
"Excluded Export Contracts" means agreements relating to sales
of Copper (which is produced at any of the Principal Properties or the
SX/EW Facility from copper mined or leached at any of the Principal
Properties or from purchased copper) by the Issuer, SPCC or any direct
or indirect Subsidiary of either to customers located outside Peru
which are, from time to time, identified on a certificate of a
Responsible Officer, or in Exhibit 2.02, in each case in accordance
with, and subject to the limitations set forth in, Section 2.02 hereof.
"Excluded Export Receivables" means Receivables arising from
Excluded Export Contracts.
"Export Contract" means any agreement, other than Excluded
Export Contracts, relating to sales of Copper (which is produced at any
of the Principal Properties or the SX/EW Facility from copper mined or
leached at any of the Principal Properties or from purchased copper) by
the Issuer, SPCC or any direct or indirect Subsidiary of either to
customers located outside Peru.
"Export Receivables" means all Receivables, other than
Excluded Export Receivables, arising from (i) the sale of Copper (which
is produced at any of the Principal Properties or the SX/EW Facility
from copper mined or leached at any
6
11
of the Principal Properties or from purchased copper) and sold by the
Issuer, SPCC or any direct or indirect Subsidiary of either to
customers located outside of Peru and (ii) the sale of Copper (which is
produced at any of the Principal Properties or the SX/EW Facility from
copper mined or leached at any of the Principal Properties or from
purchased copper) by the Issuer, SPCC or any direct or indirect
Subsidiary of either to customers located outside of Peru which are
effected through any Peruvian Governmental Authority, including without
limitation, in each case, all Receivables arising under Export
Contracts.
"Governmental Authority" means any nation or government, any
state, regional or other political subdivision thereof and any entity
exercising legislative, judicial, regulatory, or administrative
functions of or pertaining to government or any entity organized by any
of the foregoing.
"Hedge Agreements" means all swaps, caps, futures, options or
collar agreements or similar arrangements entered into by the Issuer
with any Credit Facility Lender or any Affiliate of any Credit Facility
Lender providing for protection against (a) fluctuations in interest
rates or currency exchange rates or the exchange of nominal interest
obligations or (b) fluctuations in the price of copper or other metals.
"Indenture" means the Original Indenture as supplemented by
each Supplemental Indenture, and as otherwise amended or supplemented
from time to time.
"Indenture Trustee" means the collective reference to all
trustees under the Indenture.
"Instruments" shall have the meaning set forth in Section
2.01(b) hereof.
"Moody's" means Xxxxx'x Investors Services, Inc.
"Noteholder" means any Person who is a holder of SENS issued
by the Issuer.
"Notice of Default" means a written notice delivered to the
Collateral Trustee by (i) the holders of 51% or more of the outstanding
(subject to any limitations on voting set forth in the Indenture with
respect to SENS owned by the Issuer, SPCC or any other obligor upon the
SENS or any Affiliate of the Issuer, SPCC or any other obligor upon the
SENS) principal amount of any Series of SENS (or the Indenture Trustee
on their behalf) or (ii) the Required Lenders under
7
12
the Credit Facility Agreement (or the Administrative Agent on their
behalf) or (iii) the holders of the requisite percentage of any
Qualified Additional Secured Obligations for taking actions or giving
directions following events of default provided in the Senior Secured
Instruments relating thereto, in each case stating that an Event of
Default has occurred under the applicable Senior Secured Instrument,
and specifically identifying such notice as a "Notice of Default" under
Section 5.01 of this Agreement.
"Outstanding Principal Amount" means (a) on any date of
determination prior to the Commitment Termination Date, the sum of (x)
(i) the aggregate original principal amount of all SENS which have been
issued prior to such date (other than any Series, together with any
related Subordinated Secured Obligations, which have been paid in full
prior to such date of determination) minus (ii) the aggregate principal
amount of such SENS which have been permanently optionally redeemed as
of such date (such (i) minus (ii) hereinafter referred to as the "SENS
Amount") and (y) the aggregate principal amount of loans outstanding
under the Credit Facility Agreement, and (b) on any date of
determination thereafter, the sum of (x) the SENS Amount on such date
of determination and (y)(i) the aggregate principal amount of loans
outstanding under the Credit Facility Agreement on the Commitment
Termination Date minus (ii) the aggregate principal amount of such
loans permanently optionally prepaid or permanently mandatorily prepaid
as a result of the issuance of SENS or Additional Secured Obligations
subsequent to such date; provided that from and after the date that the
loans under the Credit Facility Agreement, together with all related
Subordinated Secured Obligations, have been repaid in full, the amount
under this clause (y) shall be equal to zero.
"Permitted Liens" means (a) liens created pursuant to this
Agreement, (b) liens for taxes, assessments, governmental charges,
other governmental obligations or levies or statutory liens, in each
case with respect to sums that are not yet due or are being contested
in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of SPCC or
its subsidiaries, as the case may be, in conformity with GAAP, (c)
landlords', carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like liens arising in the ordinary course of
business and securing obligations that are not overdue by more than 30
days or are being contested in good faith by appropriate proceedings
and (d) liens incurred in the ordinary course of business in connection
with social security, workers' compensation, unemployment insurance and
similar types of laws or regulations.
8
13
"Person" means an individual, partnership, corporation,
business trust, joint stock company, limited liability company, trust,
unincorporated association, joint venture or Governmental Authority.
"Program Amount" means $750,000,000, as such amount may be
adjusted from time to time in accordance with Section 2.02(c), but in
no event shall the Program Amount exceed $750,000,000.
"Proceeds" shall have the meaning ascribed to such term under
the Uniform Commercial Code as in effect on the date hereof.
"Qualified Additional Secured Obligations" means any
Additional Secured Obligations which are not held by the Issuer or any
Affiliate of the Issuer.
"Rating Agency" means Standard & Poor's, Moody's or Xxxx &
Xxxxxx.
"Realization Event" means a foreclosure upon all or any
portion of the Collateral or a sale or other disposition of all or any
portion of the Collateral pursuant to Section 5 hereof.
"Receivable" means the existing or future indebtedness and
payment obligations of a Person arising from the sale of Copper by the
Issuer and shall include the right to any payments of interest, taxes,
finance charges or late charges and other obligations of such Person
with respect thereto.
"Required Lenders" means the holders of the requisite
percentage of loans and/or commitments under the Credit Facility
Agreement required to so act in accordance with the terms of the Credit
Facility Agreement.
"Required Secured Parties" means (a) with respect to any
direction to the Collateral Trustee pursuant to Section 6.02 hereof
(other than in respect of a Realization Event with respect to the
Collateral or the direction of Collections to an account other than the
Collection Account), (i) the Required Lenders or the Administrative
Agent on their behalf or (ii) the holders of at least 51% of the
outstanding (subject to any limitations on voting set forth in the
Indenture with respect to SENS owned by the Issuer, SPCC or any
Affiliate of the Issuer, SPCC or any other obligor upon the SENS)
principal amount of all Series of SENS (or the Indenture Trustee on
their behalf) or (iii) the requisite percentages of holders of any
Qualified Additional Secured Obligations for taking actions or giving
directions following events of default provided in the Senior Secured
Instruments under which such Qualified Additional Secured Obligations
were issued (as set
9
14
forth in the supplemental agreement delivered with respect to such
Additional Secured Obligations pursuant to Section 3.03 hereof), and
(b) with respect to any direction to the Collateral Trustee pursuant to
Section 6.02 hereof in respect of a Realization Event with respect to
the Collateral or the direction of Collections to an account other than
the Collection Account, the collective reference to (i) the Required
Lenders or the Administrative Agent on their behalf and (ii) the
holders of at least 51% of the outstanding (subject to any limitations
on voting set forth in the Indenture with respect to SENS owned by the
Issuer, SPCC or any Affiliate of the Issuer, SPCC or any other obligor
upon the SENS) principal amount of all Series of SENS (or the Indenture
Trustee on their behalf) and (iii) the requisite percentages of holders
of any Qualified Additional Secured Obligations for taking actions or
giving directions following events of default provided in the Senior
Secured Instruments under which such Qualified Additional Secured
Obligations were issued (as set forth in the supplemental agreement
delivered with respect to such Additional Secured Obligations pursuant
to Section 3.03 hereof), provided that, in the case of clause (b)
above, the term "Required Secured Parties" shall not include any class
of Secured Parties described in clauses (i), (ii) or (iii) above if the
aggregate outstanding principal amount of the Senior Secured
Obligations of such class of Secured Parties constitutes less than 10%
of the aggregate outstanding principal amount of all Senior Secured
Obligations of all such classes and, provided further that, following
the payment in full of all Senior Secured Obligations and the delivery
of all notices to the Collateral Trustee contemplated pursuant to
Section 3.05(b), "Required Secured Parties" shall mean the holders of
at least 51% of the aggregate outstanding principal and/or face amounts
of all Subordinated Secured Obligations then outstanding.
"Responsible Officer", when used with respect to the Issuer
means, unless the context otherwise requires, the president, chief
executive officer, chief financial officer, principal accounting
officer or treasurer of the Issuer or other executive officer of the
Issuer who in the normal performance of his or her operational duties
would have knowledge of the subject matter relating to any certificate,
report or notice to be delivered or given under this Agreement.
"Secured Hedge Agreement" shall mean at any time a Hedge
Agreement that has been designated as a "Secured Hedge Agreement"
pursuant to Section 3.05 hereof.
"Secured Instruments" means the collective reference to the
Senior Secured Instruments and the Subordinated Secured Instruments.
10
15
"Secured Letter of Credit" shall mean at any time any letter
of credit that has been designated as a "Secured Series Reserve Letter
of Credit", "Secured Credit Facility Reserve Letter of Credit" or
"Secured Additional Secured Obligations Reserve Letter of Credit"
pursuant to Section 3.05 hereof.
"Secured Obligations" means the collective reference to the
Senior Secured Obligations and the Subordinated Secured Obligations.
"Secured Parties" means:
(i) so long as any Credit Facility Lender has any commitment
to make loans or other extensions of credit under the Credit Facility
Agreement or any amount is payable by the Issuer under the Credit
Facility Agreement, the Credit Facility Lenders and the Credit Facility
Agents under the Credit Facility Agreement;
(ii) so long as any amount is payable by the Issuer under the
Indenture or any series of SENS, the Noteholders and the Indenture
Trustee;
(iii) so long as any amount is payable by the Issuer under
this Agreement, the Collateral Trustee;
(iv) so long as any amount is payable by the Issuer in
respect of any Additional Secured Obligation, the holder or holders of
such Additional Secured Obligation; and
(v) so long as any amount is payable by the Issuer in
respect of any Subordinated Secured Obligation, the holder or holders
of such Subordinated Secured Obligation.
"Senior Creditor" means any holder of a Senior Secured
Obligation.
"Senior Secured Instruments" shall mean at any time any
agreements or instruments evidencing Senior Secured Obligations.
"Senior Secured Obligations" means the collective reference to
the Credit Facility Secured Obligations, the SENS Secured Obligations
and the Additional Secured Obligations.
"SENS Secured Obligations" means any and all of the debts,
obligations and liabilities of the Issuer to the Indenture Trustee and
the holders of SENS of
11
16
any Series provided for or arising under the SENS or the Indenture,
whether now existing or hereafter arising, voluntary or involuntary,
direct or indirect, absolute or contingent, liquidated or unliquidated,
and whether or not from time to time decreased or extinguished and
later increased, created or incurred (including without limitation
interest accruing at the then applicable rate provided in a
Supplemental Indenture for any Series of SENS and interest accruing at
the then applicable rate provided in such Supplemental Indenture after
the filing of any petition in bankruptcy, or the commencement of any
insolvency reorganization or like proceeding, relating to the Issuer,
whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) which may arise under, out of, or in
connection with the SENS, the Indenture or any other document made,
delivered or given in connection therewith, in each case whether on
account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel that are required to
be paid by the Issuer pursuant to the terms of any of the foregoing
agreements).
"SENS Total Collateral Percentage" means, at any time, the
percentage interest in the Collateral equal to the sum of all Series
Total Collateral Percentages for all outstanding series of SENS at such
time.
"Series" means any series of SENS issued pursuant to a
Supplemental Indenture.
"Series Basic Collateral Percentage" means, at any time with
respect to each Series of SENS, the percentage equivalent of a
fraction, the numerator of which shall be (a) the original principal
amount of SENS issued under such Series of SENS minus (b) the aggregate
principal amount of such SENS that have been permanently optionally
redeemed (to the extent that the sum of the aggregate principal amount
so redeemed plus the aggregate principal amount of all scheduled
principal payments (after giving effect to any reduction in such
scheduled payments as a result of such redemption) made prior to such
time exceeds the aggregate principal payments originally scheduled to
have been made by such time) as of such date and the denominator of
which shall be the Program Amount then in effect.
"Series Total Collateral Percentage" means, at any time with
respect to each Series of SENS, the percentage interest in the
Collateral of the Noteholders of such Series, which percentage shall be
equal to the Series Basic Collateral Percentage for such Series at such
time plus the Additional Percentage applicable to such Series, if any,
at such time.
12
17
"Standard & Poor's" means Standard & Poor's Ratings Group.
"Subordinated Additional Secured Obligations" shall mean all
obligations of the Issuer to the Subordinated Creditors in respect of
Secured Additional Secured Obligations Reserve Letters of Credit (as
designated pursuant to Section 3.05 hereof).
"Subordinated Credit Facility Secured Obligations" shall mean
all obligations of the Issuer to the Subordinated Creditors in respect
of Secured Credit Facility Reserve Letters of Credit (as designated
pursuant to Section 3.05 hereof) or Secured Hedge Agreements, provided
that in no event shall the "Subordinated Credit Facility Secured
Obligations" in respect of all Secured Hedge Agreements exceed
$50,000,000 in the aggregate. For purposes of determining the amount of
obligations secured under any Hedge Agreement, such amount shall be the
maximum aggregate amount (giving effect to any netting agreements) that
the Issuer would be required to pay if such Hedge Agreement were
terminated at such time.
"Subordinated Creditors" shall mean at any time the holders of
the Subordinated Secured Obligations.
"Subordinated Secured Instruments" shall mean at any time any
agreements or instruments evidencing Subordinated Secured Obligations.
"Subordinated Secured Obligations" means the collective
reference to the Subordinated SENS Secured Obligations, the
Subordinated Credit Facility Secured Obligations and the Subordinated
Additional Secured Obligations.
"Subordinated SENS Secured Obligations" shall mean, with
respect to any Series of SENS, all obligations of the Issuer to the
Subordinated Creditors in respect of Secured Series Reserve Letters of
Credit (as designated pursuant to Section 3.05 hereof) issued with
respect to such Series.
"Subsidiary" means, as to any Person, a corporation,
partnership or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening
of a contingency) to elect a majority of the board of directors or
other managers of such corporation, partnership or other entity are at
the time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person.
13
18
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to Subsidiaries of SPCC.
"Supplemental Indenture" means any indenture supplemental to
the Original Indenture relating to a particular Series of SENS.
"SX/EW Facility" means the solvent extraction/electrowinning
copper plant located in Toquepala, Peru.
"Trust Indenture Act" means the Trust Indenture Act of 1939.
"Trustee" means Citibank, N.A. or any successor trustee of the
SENs or any Series thereof.
"Uniform Commercial Code" means the Uniform Commercial Code as
in effect from time to time in the State of New York.
ARTICLE 2
SECURITY INTERESTS
SECTION 2.01. Grant of Security Interest. In order to secure the full
and punctual payment of the Secured Obligations and to secure the performance of
all of the obligations of the Issuer under this Agreement and the Secured
Instruments, the Issuer hereby pledges and grants a continuing, lien and
security interest to the Collateral Trustee (for the benefit of the Secured
Parties, as their interests appear herein) upon, in and to all of the rights,
revenues and properties of the Issuer listed in the following clauses (a)
through (c), inclusive, whether now owned or existing or hereafter acquired or
arising and regardless of where located (all being collectively referred to as
the "Collateral"), and the Issuer collaterally assigns to the Collateral Trustee
(for the benefit of such Secured Parties, as their interests appear herein):
(a) the Export Contracts, the Export Receivables and all Proceeds
of the Export Contracts and the Export Receivables, including but
not limited to all moneys due or to become due under or in respect
of the Export Contracts and the Export Receivables and all
Collections, (b) all instruments, chattel paper or letters of
credit (each as defined in the Uniform Commercial Code)
(collectively, the "Instruments"), if any, and all general
intangibles (as defined in the Uniform Commercial Code) and other
contracts, if any, in each case evidencing, representing, arising
from, relating to, securing or otherwise supporting any obligation
to make
14
19
payment under or in respect of the Export Contracts and the Export
Receivables, and (c) the Collection Account, all Eligible
Investments and all cash deposited therein from time to time.
SECTION 2.02. Excluded Export Receivables. (a) As of the date hereof,
the contracts identified on Exhibit 2.02 hereof shall constitute Excluded Export
Contracts and such contracts, and the Receivables arising thereunder, shall not
be subject to this Agreement in any manner.
(b) At any time and from time to time, a Responsible Officer of the
Issuer may, subject to the satisfaction of all applicable conditions, if any, in
any Senior Secured Instruments, deliver a certificate to the Collateral Trustee
for the purposes of identifying for any calendar year (1) contracts in
replacement of those identified on Exhibit 2.02, upon expiration or termination
of such contracts, or any amendments thereto (which replacement contracts or
amendments shall provide for sales of Copper in an aggregate annual amount
(expressed in short tons) equal to the aggregate annual amount covered by the
contracts identified in Exhibit 2.02, or, in the case of replacement contracts,
such higher amount as may be practically necessary, taking into account the
amount of Copper covered by contracts that may be available as replacement
contracts; provided that the aggregate annual amount of Copper covered by all
contracts described in Section 2.02(a) and 2.02(b)(1) shall not exceed 40,000
short tons), which replacement contracts or amended contracts shall constitute
Excluded Export Contracts and shall be reflected on an revised Exhibit 2.02
hereto to be provided by the Issuer to the Collateral Trustee and (2) additional
Excluded Export Contracts providing for sales of Copper up to an aggregate
annual amount (expressed in short tons) equal to the sum of (x) 10% of Net
Certified Export Sales (as defined below) and (y) the Excess Certified Export
Sales (as defined below), if any, in each case for such calendar year; provided
that the maximum amount of Copper to be sold under contracts which may be
excluded pursuant to this Section 2.02(b) with respect to any calendar year in
connection with any identification of Excluded Export Contracts after the
commencement of such calendar year shall be reduced by a fraction, the numerator
of which is the number of days elapsed since the commencement of such calendar
year and the denominator of which is 365; and provided further that the Issuer
shall not be permitted to exclude contracts pursuant to clause (x) above in an
amount that would cause the Program Amount to be reduced pursuant to Section
2.02(c) below an amount equal to the sum of (i) the Outstanding Principal Amount
at such time and (ii) the Attributable Principal Amount of Additional Secured
Obligations then outstanding. In connection with a designation of Excluded
Export Contracts pursuant to this Section 2.02(b), the Issuer shall provide the
Collateral Trustee with a certificate of a Responsible Officer certifying for
the applicable calendar year the budgeted level of sales of Copper (expressed in
short tons) by the Issuer to be sold to customers located outside Peru (the
"Certified Export Sales"). The "Net Certified Export Sales", for any calendar
15
20
year, shall be equal to (A) the lesser of (i) 320,000 short tons and (ii) the
Certified Export Sales for such calendar year minus (B) the aggregate annual
amount of short tons of Copper to be sold under the Export Contracts identified
in Exhibit 2.02 hereof in such calendar year (or any contracts in replacement
therefor or any amendments thereto, as described in clause (1) of the first
sentence of this Section 2.02(b)). "Excess Certified Export Sales" shall mean
the excess, if any, of the Certified Export Sales for such calendar year over
the sum of (1) 320,000 short tons and (2) the annual amount of short tons of
Copper in respect of Excluded Export Contracts for such calendar year. The
Issuer shall use reasonable efforts, in connection with a designation of
Excluded Export Contracts pursuant to this Section 2.02(b), to make such
designation in a manner which would not cause the terms of the Excluded Export
Contracts and the Receivables arising thereunder (including as to sales price
and term and the timing of sales under such contracts) as a whole to be
materially better than the comparable terms of the contracts which are not
Excluded Export Contracts. Upon delivery by the Issuer of a certificate pursuant
to this subsection, the Collateral Trustee, as promptly as practicable
thereafter, shall take any and all actions and file any and all documents which
are reasonably necessary under the Uniform Commercial Code to evidence the
release of the security interest of the Secured Parties in any Excluded Export
Contracts identified in such certificate.
(c) If the Issuer elects to identify additional Excluded Export
Contracts pursuant to clause (x) of paragraph (b) of this Section 2.02, the
Program Amount shall be reduced, during the period in which such contracts are
so excluded, by an amount equal to the product of (x) the Program Amount prior
to such reduction and (y) a fraction, the numerator of which is equal to the
annual amount of Copper sales arising under such Excluded Export Contracts
(expressed in short tons) and the denominator of which is equal to the Net
Certified Export Sales.
(d) For purposes of calculating tonnages under this Agreement with
respect to copper concentrates, the amount of copper (expressed in short tons)
contained in copper concentrates shall be used.
SECTION 2.03. Preservation of Rights; Shared Security Interest. (a)
Notwithstanding the foregoing grant, transfer and collateral assignment, the
Issuer shall, subject to the terms and conditions hereof, exercise all rights
relating to the Export Contracts and the Export Receivables including, but not
limited to, amending the Export Contracts in respect of the Export Receivables,
making waivers and elections thereunder, and instituting and settling
proceedings to enforce its rights thereunder; provided that the Collateral
Trustee may direct or control the exercise of such rights in accordance with
Sections 5 and 6 hereof.
16
21
(b) The individual Secured Parties will not have a separate security
interest in any specific Export Contract or Export Receivable but, through the
Collateral Trustee, will have a fractional undivided security interest in the
Collateral as a whole on the terms and conditions hereof, consisting of (i) in
the case of the holders of any Series of SENS, a percentage of the Collateral,
including the right to receive a percentage of all Collections, in each case
equal to the SENS Total Collateral Percentage for such Series, (ii) in the case
of the Credit Facility Lenders and the Credit Facility Agents, a percentage of
the Collateral, including the right to receive a percentage of the Collections,
in each case equal to the Credit Facility Total Collateral Percentage and (iii)
in the case of any Additional Secured Obligations, a percentage of the
Collateral, including the right to receive a percentage of the Collections, in
each case equal to the Designated Total Collateral Percentage for such
Additional Secured Obligations. The security interest is held in common for all
Secured Parties and the Collateral Trustee shall reject any Secured Party's
claim that its rights to the Collateral are superior to the rights of another
Secured Party by virtue of (i) having acquired those rights before, or after,
the other Secured Party or (ii) filing an earlier claim with respect to the
Collateral. At any time (including without limitation at any time following any
Realization Event) when the Excess Percentage is greater than zero, the Issuer
shall have the right to receive a percentage of all Collections equal to the
Excess Percentage.
SECTION 2.04. Additional Percentage Interest. (a) Initially, (i) the
holders of each Series of SENS and the Indenture Trustee shall have rights in
the Collateral equal to the SENS Basic Collateral Percentage for such Series,
(ii) the Credit Facility Lenders and the Credit Facility Agents shall have
rights in the Collateral equal to the Credit Facility Basic Collateral
Percentage, and (iii) the holders of any Additional Secured Obligations shall
have rights in the Collateral equal to the Designated Basic Collateral
Percentage for such Additional Secured Obligations. On any Business Day, the
Issuer may designate, by written notice from a Responsible Officer (which
designation shall be effective commencing on the next Business Day following
receipt of such written notice) to the Collateral Trustee, the Indenture
Trustee, and the Administrative Agent, that an additional percentage interest in
the Collateral (which shall thereafter be in addition to the relevant Series
Basic Collateral Percentage, the Credit Facility Basic Collateral Percentage or
the Designated Basic Collateral Percentage for the relevant Additional Secured
Obligations, as the case may be) for the benefit of the holders of any Series of
SENS, the Credit Facility Lenders or the holders of Additional Secured
Obligations, as the case may be; provided that after giving effect to such
designation, the sum of (A) the SENS Total Collateral Percentage, (B) the Credit
Facility Total Collateral Percentage and (C) the aggregate Designated Total
Collateral Percentages for all Additional Secured Obligations shall not exceed
100%.
17
22
(b) On any Business Day, the Issuer may, by providing a certificate of
a Responsible Officer and subject to the satisfaction of all applicable
conditions, if any, in the Senior Secured Instruments, notify the Collateral
Trustee, the Indenture Trustee, and the Administrative Agent that any Additional
Percentage designated in accordance with paragraph (a) of this Section no longer
be so designated for the benefit of the holders of any Series of SENS, the
Credit Facility Lenders or the holders of Additional Secured Obligations, as the
case may be, which withdrawal of designation shall be effective commencing on
the fifth Business Day following receipt of such certificate.
ARTICLE 3
ACCOUNTS
SECTION 3.01. Proceeds of Export Receivables. The Issuer shall (i)
notify all Persons that are parties to, or otherwise obligated in respect of,
Export Contracts or parties that are otherwise obligated in respect of Export
Receivables that such Export Contracts, the Export Receivables arising
thereunder or such other Export Receivables have been pledged and assigned to
the Collateral Trustee for the benefit of the Secured Parties and (ii)
irrevocably instruct all such Persons to make all payments of all amounts owed
by it under or in respect of present or future sales of Copper (which is
produced at any of the Principal Properties or the SX/EW Facility from copper
mined or leached at any of the Principal Properties or from purchased copper)
directly into the Collection Account (referred to below) maintained by the
Collateral Trustee unless and until it has received written notice from the
Collateral Trustee that such payments are to be directed to another account or
are no longer required to be made. Along with such notice, which shall be
substantially in the form of Exhibit 3.01A hereto, the Issuer shall send to each
such Person a consent, acknowledgment and agreement, substantially in the form
of Exhibit 3.01B hereto, provided that any such consent, acknowledgment and
agreement sent after June 30, 1997 shall be substantially in the form of Exhibit
3.01C hereto, to pay in accordance with the notice (each, an "Acknowledgment")
and shall request such Person (other than customers in respect of Export
Receivables that are not parties to annual Export Contracts or Export Contracts
with a term greater than one year) to execute the Acknowledgment and return the
same to the Collateral Trustee. In the event that the Issuer determines that any
Purchaser has agreed pursuant to an Acknowledgment to make payments to the
Collection Account in respect of receivables or contracts that are not Export
Receivables or Export Contracts, the Collateral Trustee, upon written notice
from SP Limited, shall advise such Purchaser that amounts paid in respect of
such receivables or contracts shall not be paid to the Collection Account, but
instead shall be paid to such accounts and in such manner as SP Limited may from
time to time direct. All payments made to the Collateral Trustee as provided in
the preceding sentence shall be immediately
18
23
deposited in the Collection Account. In addition to the foregoing, the Issuer
agrees that if the Proceeds of any Export Contracts or Export Receivables shall
be received by the Issuer (other than from distributions from (a) the Collection
Account in accordance with the provisions hereof and (b) any other Account in
accordance with the relevant Secured Instrument or security agreement related
thereto), the Issuer shall immediately notify the Collateral Trustee in writing
of such receipt and shall as promptly as possible deposit such proceeds into the
Collection Account. Until so deposited, all such proceeds shall be held in trust
by the Issuer for and as the property of the Collateral Trustee, for the benefit
of the Secured Parties (and, to the extent of the Excess Percentage, if any, for
the benefit of the Issuer), and shall not be commingled with any other funds or
property of the Issuer. Without limiting the obligation of the Issuer to pay the
Secured Obligations, amounts distributed to the Issuer or the Issuer's designee
in accordance with the provisions of this Agreement shall not be subject, under
any circumstances, to any rights of the Collateral Trustee, the Noteholders, the
Credit Facility Lenders or the holders of Additional Secured Obligations to
require the Issuer or the Issuer's designee to repay such amounts to the
Collateral Trustee, the Noteholders or the Credit Facility Lenders.
SECTION 3.02. Collection Account. (a) Concurrently with the execution
and delivery of this Agreement, the Collateral Trustee shall establish a
segregated trust account in New York designated the "Deutsche Bank/Southern Peru
Limited Collection Trust Account" (herein referred to as the "Collection
Account") into which there shall be deposited from time to time, Proceeds from
the Export Contracts and Export Receivables, including the Collections, required
to be delivered pursuant to Section 3.01. On every Business Day at 3:00 P.M.,
New York City time, the Collateral Trustee shall transfer the funds then on
deposit in the Collection Account, after deducting therefrom amounts sufficient
to pay the overdue fees and expenses of, and any other overdue amounts payable
to, the Collateral Trustee under this Agreement, in accordance with the
following percentages:
(i) a portion of the Collections equal to the Series Total Collateral
Percentage in effect on such Business Day for each Series of SENS shall be
transferred to the "Series Collateral Account" established for such Series as
designated in writing from time to time by the Indenture Trustee to the
Collateral Trustee, (ii) a portion of the Collections equal to the Credit
Facility Total Collateral Percentage in effect on such Business Day shall be
transferred to the "Credit Facility Collateral Account" as designated in writing
from time to time by the Collateral Agent to the Collateral Trustee, (iii) a
portion of the Collections equal to the Designated Total Collateral Percentage
for any Additional Secured Obligations in effect on such Business Day shall be
transferred to the relevant Account established in connection with such
Additional Secured Obligations or as the holders of such Additional Secured
Obligations may otherwise direct and (iv) a portion of the Collections equal to
the Excess Percentage in effect on such Business Day shall be
19
24
transferred to such account as the Issuer may designate from time to time in
writing to the Collateral Trustee.
(b) The Collection Account shall be maintained in the name of the
Collateral Trustee, for the benefit of the Secured Parties, and shall at all
times be under the sole dominion and control of the Collateral Trustee in
accordance with the provisions hereof. Without prejudice to the rights of the
Issuer to receive a percentage of the Collections equal to the Excess Percentage
as provided herein, the Issuer shall have no rights of withdrawal from the
Collection Account.
(c) Any funds remaining overnight on deposit in the Collection Account
shall be invested by the Collateral Trustee, as specified in written investment
instructions given by a Responsible Officer of the Issuer or a Person specified
by such Responsible Officer, in Eligible Investments, but if no such investment
instructions are provided, the Collateral Trustee shall, pursuant to written
standing instructions from the Issuer, invest such funds overnight in Eligible
Investments until other instructions are received from the Issuer; provided that
after receipt by the Collateral Trustee of a Notice of Default, such funds shall
be invested by the Collateral Trustee in Eligible Investments selected by the
Collateral Trustee. All such Eligible Investments shall be maintained in the
name of the Collateral Trustee and pledged to the Collateral Trustee to be held
by it or on its behalf as part of the Collateral hereunder, and the Collateral
Trustee shall be authorized to endorse any of such Eligible Investments in a
manner satisfactory to it, on behalf of the Issuer. All earnings on Eligible
Investments shall be credited to the Collection Account upon receipt thereof by
the Collateral Trustee.
SECTION 3.03. Supplemental Agreements for Additional Secured
Obligations. Without the consent of the other Secured Parties, the Issuer and
the Collateral Trustee may enter into one or more agreements supplemental hereto
to provide for the designation of a percentage interest in the Collateral to
secure any Additional Secured Obligations, provided, however, that (a) the
holder of any such Additional Secured Obligations shall be required to consent
and agree to this Agreement and (b) after giving effect to such designation, the
sum of (i) the SENS Total Collateral Percentage, (ii) the Credit Facility Total
Collateral Percentage and (iii) the aggregate Designated Total Collateral
Percentages of all Additional Secured Obligations shall not exceed 100%.
SECTION 3.04. Determination of Series Total Collateral Percentage,
Credit Facility Total Collateral Percentage and Designated Total Collateral
Percentage. In determining the Series Total Collateral Percentage for each
Series of SENS, the Credit Facility Total Collateral Percentage and the
Designated Total Collateral Percentage at any time, the Collateral Trustee shall
conclusively rely upon information supplied by the Administrative Agent as to
the principal amount of Loans outstanding and, if applicable,
20
25
prepaid under the Credit Facility Agreement, upon information supplied by the
Indenture Trustee as to the aggregate original principal amount issued and, if
applicable, optionally redeemed, under the relevant Series of SENS, and upon
information supplied by the holder of any Additional Secured Obligation as to
the principal amount outstanding and, if applicable, prepaid thereunder and upon
any notices delivered pursuant to Section 2.04 hereof, and the Collateral
Trustee shall have no liability to any of the Secured Parties for actions taken
in reliance on any such information. All determinations pursuant to this Section
shall be made based upon the most recent information provided to the Collateral
Trustee pursuant to the immediately preceding sentence.
SECTION 3.05. Designation of Secured Letters of Credit and Secured
Hedge Agreements; Supplemental Agreements for Subordinated Secured Obligations.
(a) The Issuer may, in accordance with the applicable Senior Secured
Instruments, from time to time designate certain letters of credit and Hedge
Agreements as "Secured Series Reserve Letters of Credit", "Secured Credit
Facility Reserve Letters of Credit", "Secured Additional Secured Obligations
Reserve Letters of Credit" or "Secured Hedge Agreements", respectively. From
time to time, the Issuer will give the Collateral Trustee written notice of such
designation and such letters of credit and/or Hedge Agreements shall thereafter
be deemed to be "Secured Series Reserve Letters of Credit", "Secured Credit
Facility Reserve Letters of Credit", "Secured Additional Secured Obligations
Reserve Letters of Credit" or "Secured Hedge Agreements", as the case may be,
for all purposes hereunder. The Issuer shall not create any Subordinated Secured
Obligations unless the holders thereof shall have agreed to be bound by the
provisions of this Agreement.
(b) After the SENS Secured Obligations in respect of a Series of SENS
shall have been paid in full and the Indenture Trustee shall have delivered a
written notice to such effect to the Collateral Trustee, the holders of
Subordinated Secured Obligations in respect of any Secured Series Reserve Letter
of Credit relating to such Series shall thereafter be entitled to the rights of
such Series in the Collateral under this Agreement, including the right to
receive a percentage of all Collections, in each case equal to the SENS Total
Collateral Percentage for such Series which shall, notwithstanding the payment
in full of such SENS Secured Obligations, remain in effect (equal to the
percentage in effect immediately prior to such payment in full of the principal
of such SENS Secured Obligations) until such Subordinated Secured Obligations
shall have been paid in full in accordance with the terms of the relevant
Subordinated Secured Instruments, and the Collateral Trustee shall thereafter
make all payments in respect of the SENS Total Collateral Percentage to such
account as shall be designated in writing by the holders of such Subordinated
Secured Obligations to the Collateral Trustee pursuant to such Subordinated
Secured Instruments. After the Credit Facility Secured Obligations shall have
paid in full and all commitments under the Credit Facility Agreement shall
21
26
have terminated and the Administrative Agent shall have delivered a written
notice to such effect to the Collateral Trustee, the holders of Subordinated
Secured Obligations in respect of any Secured Credit Facility Reserve Letter of
Credit or Secured Hedge Agreement shall thereafter be entitled to the rights of
the Credit Facility Lenders and the Credit Facility Agents in the Collateral
under this Agreement, including the right to receive a percentage of all
Collections, in each case equal to the Credit Facility Total Collateral
Percentage which shall, notwithstanding the payment in full of the Credit
Facility Secured Obligations, remain in effect (equal to the percentage in
effect immediately prior to such payment in full of the principal of the loans
under the Credit Facility Agreement) until such Subordinated Secured Obligations
shall have been paid in full in accordance with the terms of the relevant
Subordinated Secured Instruments and the Collateral Trustee shall thereafter
make all payments in respect of the Credit Facility Total Collateral Percentage
to such account as shall be designated in writing by the holders of such
Subordinated Secured Obligations to the Collateral Trustee pursuant to such
Subordinated Secured Instruments. After any relevant Additional Secured
Obligations shall have paid in full and the holders of the Additional Secured
Obligations (or an authorized representative of such holders) shall have
delivered a written notice to such effect to the Collateral Trustee, the holders
of Subordinated Secured Obligations in respect of any Secured Additional Secured
Obligations Reserve Letter of Credit relating to such Additional Secured
Obligations shall thereafter be entitled to the rights of the holders of such
Additional Secured Obligations in the Collateral under this Agreement, including
the right to receive a percentage of all Collections, in each case equal to the
Designated Total Collateral Percentage for such Additional Secured Obligations
which shall, notwithstanding the payment in full of the Additional Secured
Obligations, remain in effect (equal to the percentage in effect immediately
prior to such payment in full of such Additional Secured Obligations) until such
Subordinated Secured Obligations shall have been paid in full in accordance with
the terms of the relevant Subordinated Secured Instruments and the Collateral
Trustee shall thereafter make all payments in respect of the Designated Total
Collateral Percentage to such account as shall be designated in writing by the
holders of such Subordinated Secured Obligations to the Collateral Trustee
pursuant to such Subordinated Secured Instruments. Notwithstanding anything to
the contrary contained in the Subordinated Secured Instruments or any other
document or agreement and irrespective of: (i) anything contained in any filing
or agreement to which the Noteholders, the Credit Facility Lenders, the holders
of any Additional Secured Obligations or any Subordinated Creditor now or
hereafter may be a party and (ii) the rules for determining priority under the
Uniform Commercial Code or any other law governing the relative priorities of
secured creditors, (A) no Subordinated Creditor shall be entitled to receive any
payment from the Collateral until the relevant Senior Secured Obligations shall
have been paid in full and the Collateral Trustee shall have received the
above-described written notice with respect thereto and (B) no Subordinated
Creditor shall exercise any rights or remedies in respect of the Collateral
until all the Senior
22
27
Secured Obligations described in the first three sentences of this paragraph
shall have been indefeasibly paid in full and the Collateral Trustee shall have
received all of the written notices described in such sentences.
ARTICLE 4
PERFECTION
SECTION 4.01. Delivery and Other Perfection. The Issuer shall:
(a) deliver to the Collateral Trustee all Acknowledgments;
(b) deliver and pledge to the Collateral Trustee any and all
Instruments, endorsed and/or accompanied by such instruments of
assignment and transfer in such form and substance as the Collateral
Trustee may request;
(c) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other paper that
may be necessary or desirable to create, preserve, perfect or validate
the security interest granted pursuant hereto or to enable the
Collateral Trustee to exercise and enforce its rights hereunder with
respect to such pledge and security interest; and
(d) prior to the occurrence of a trigger event, an accelerated
amortization event or an event of default under the Indenture or an
event of default under the Credit Facility Agreement, or an event of
default under the Secured Instrument relating to any Additional Secured
Obligation, permit the Collateral Trustee to discuss the affairs,
finances and accounts of the Issuer with, and to be advised as to the
same by, the Issuer's officers and employees upon reasonable notice, at
such reasonable times during regular business hours and intervals and
to such reasonable extent as the Collateral Trustee may desire.
Following the occurrence and during the continuance of a trigger event,
an accelerated amortization event or an event of default under the
Indenture or an event of default under the Credit Facility Agreement,
or an event of default under the Secured Instrument relating to any
Additional Secured Obligation, permit the Collateral Trustee to visit
and inspect any of the properties and the executive offices of the
Issuer, to examine the books of account and records of the Issuer, to
make or be provided with copies and extracts therefrom and, to discuss
the affairs, finances and accounts of the Issuer with, and to be
advised as to the same by, its officers, employees and independent
certified public accountants all at such reasonable times during
regular business hours and intervals and to such reasonable extent as
the
23
28
Collateral Trustee may desire. If a trigger event, an accelerated
amortization event, or an event of default under the Indenture or an
event of default under the Credit Facility Agreement, or an event of
default under the Secured Instrument relating to any Additional Secured
Obligation, shall have occurred and be continuing, the Issuer agrees to
pay the fees and expenses of the Collateral Trustee in connection with
the exercise of rights by the Collateral Trustee pursuant to this
Section 4.01(d).
SECTION 4.02. Other Financing Statements and Liens. Except as otherwise
permitted under this Agreement, without the prior written consent of the
Collateral Trustee, the Issuer shall not file or suffer to be on file, or
authorize or permit to be filed or to be on file, in any jurisdiction any
financing statement or like instrument with respect to the Collateral in which
the Collateral Trustee is not named as the sole secured party.
SECTION 4.03. Representations and Warranties. The Issuer hereby
represents and warrants to the Collateral Trustee (for the benefit of the
Secured Parties) that: (a) Assuming compliance by the Collateral Trustee with
the terms hereof, this Agreement creates a valid and binding Lien in favor of
the Collateral Trustee in the Collection Account and all cash deposited therein
from time to time, enforceable in accordance with the terms hereof and prior to
all other Liens and rights of others, except for Permitted Liens.
(b) Upon the execution of UCC-1 financing statements and the proper
filing thereof in the locations indicated in Exhibit 4.03, this Agreement
creates a valid and binding lien and security interest in favor of the
Collateral Trustee in the Export Contracts, the Export Receivables and the
Proceeds of the Export Contracts and Export Receivables, enforceable in
accordance with the terms hereof, and prior to all other liens or other security
interests (as defined in the Uniform Commercial Code), except for Permitted
Liens.
(c) Each Export Contract is in full force and effect and constitutes a
valid and legally enforceable obligation of the Issuer, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing. No amount payable to the
Issuer in excess of $100,000 under or in connection with any Export Contract is
evidenced by any Instrument which has not been delivered to the Collateral
Trustee. At the Collateral Trustee's request after receipt by the Collateral
Trustee of a Notice of Default, the Issuer shall deliver to the Collateral
Trustee all original Export Contracts and other documents evidencing, and
relating to, the Export
24
29
Contracts which gave rise to the Export Receivables, including, without
limitation, all original orders, invoices and shipping receipts.
(d) Without prejudice to any other provision or agreement contained
herein, all obligations of the Issuer under this Agreement are (without any
further action by the Issuer or the Peruvian Branch) obligations of the Peruvian
Branch of the Issuer, and that such obligations, and the security interests
created under this Agreement, are enforceable against the Peruvian Branch of the
Issuer (and its assets), subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and covenant
of good faith and fair dealing.
SECTION 4.04. Issuer Remains Liable. Anything herein to the contrary
notwithstanding, the Issuer shall remain liable under each of the Export
Contracts to observe and perform all the conditions and obligations to be
observed and performed by it thereunder, all in accordance with the terms of any
agreement giving rise thereto. Neither the Collateral Trustee nor any Secured
Creditor shall have any obligation or liability under any Export Contract by
reason of or arising out of this Agreement or the receipt by the Collateral
Trustee or any Secured Creditor of any payment relating thereto, nor shall the
Collateral Trustee or any Secured Creditor be obligated in any manner to perform
any of the obligations of the Issuer under or pursuant to any Export Contract,
to make any payment, to make any inquiry as to the nature or the sufficiency of
any payment received by it or as to the sufficiency of any performance by any
party thereunder, to present or file any claim, to take any action to enforce
any performance or to collect the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.
ARTICLE 5
REMEDIES
SECTION 5.01. Notices of Default; Remedies Subject to Intercreditor
Arrangements and Issuer's Interest in the Collateral. Upon receipt of a Notice
of Default, the Collateral Trustee shall promptly notify the Issuer, the
Administrative Agent, the Indenture Trustee and the authorized representative of
the holders of any Additional Secured Obligations of its receipt thereof. Except
as expressly permitted hereunder, the Collateral Trustee is not empowered to
exercise any remedy under this Article 5 unless a Notice of Default has been
delivered. A Notice of Default shall become effective upon receipt thereof by
the Collateral Trustee. A Notice of Default, once effective, shall remain in
effect unless and until it is canceled as provided in the next succeeding
sentence. The Senior Creditors giving a Notice of Default shall be entitled to
cancel such
25
30
Notice of Default by delivering a written notice of cancellation to the
Collateral Trustee at any time. The Collateral Trustee shall immediately notify
the Issuer, the Administrative Agent, the Indenture Trustee and the authorized
representative of the holders of any Additional Secured Obligations as to the
receipt and contents of any such notice of cancellation. Notwithstanding the
delivery of a Notice of Default, no Realization Event with respect to the
Collateral or the direction of Collections to any account other than the
Collection Account may be effected by the Collateral Trustee or by or on behalf
of any Secured Party except in accordance with the intercreditor arrangements
set forth in Article 6 hereof. Notwithstanding anything to the contrary herein
contained, nothing in this Article 5 shall modify, reduce, release or otherwise
affect the percentage interests in the Collections, as calculated in accordance
with the provisions hereof.
SECTION 5.02. General Authority of the Collateral Trustee over the
Collateral. The Issuer hereby irrevocably constitutes and appoints the
Collateral Trustee and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full power and
authority in the name of the Issuer or in its own name, from time to time in the
Collateral Trustee's discretion, so long as any Notice of Default is in effect,
to take any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to carry out the terms of this
Agreement and accomplish the purposes hereof and thereof and, without limiting
the generality of the foregoing, the Issuer hereby gives the Collateral Trustee
the power and right on behalf of the Issuer, without notice to or further assent
by the Issuer (and without any requirement to receive directions with respect
thereto pursuant to Section 6.02), so long as any Notice of Default is in
effect, to do the following:
(a) to ask for, demand, xxx for, collect, receive and give acquittance
for any and all moneys due or to become due upon, or in connection with, the
Collateral;
(b) to receive, take, endorse, assign and deliver any and all checks,
notes, drafts, acceptances, documents and other negotiable and non-negotiable
instruments taken or received by the Collateral Trustee as, or in connection
with, the Collateral;
(c) to commence, prosecute, defend, settle, compromise or adjust any
claim, suit, action or proceeding with respect to, or in connection with, the
Collateral; and
(d) to do, at its option and at the expense and for the account of the
Issuer, at any time or from time to time, all acts and things which the
Collateral Trustee deems necessary to protect or preserve the Collateral.
26
31
SECTION 5.03. Remedies Generally; Right to Initiate Judicial
Proceedings. (a) If a Notice of Default is in effect, then, subject to the
provisions of Article 6 hereof, the Collateral Trustee, on behalf of the Secured
Parties, may exercise, in addition to all other rights and remedies granted to
them in this Agreement and in any other instrument or agreement securing,
evidencing or relating to the Secured Obligations, all rights and remedies of a
secured party under the Uniform Commercial Code or any other applicable law.
Without limiting the generality of the foregoing, the Collateral Trustee,
without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below) to or upon the Issuer or any other Person (all and each of which
demands, defenses, advertisements and notices are hereby waived to the extent
permitted by applicable law), may in such circumstances, subject to the
provisions of Article 6 hereof, forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
lease, assign, give option or options to purchase, or otherwise dispose of and
deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any
exchange, broker's board or office of the Collateral Trustee or any Secured
Party or elsewhere upon such terms and conditions as it may deem advisable and
at such prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. The Collateral Trustee or any Secured
Party shall have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to purchase the
whole or any part of the Collateral so sold, free of any right or equity of
redemption in the Issuer, which right or equity is hereby waived and released.
The Collateral Trustee shall deposit the net proceeds of any action taken by it
pursuant to this Section, after deducting all reasonable costs and expenses of
every kind incurred in connection therewith or incidental to the care or
safekeeping of any of the Collateral or in any way relating to the Collateral or
the rights of the Collateral Trustee hereunder, including, but not limited to,
reasonable attorneys' fees and disbursements, in the Collection Account for
distribution in accordance with Section 3.02. To the extent permitted by
applicable law, the Issuer waives all claims, damages and demands it may acquire
against the Collateral Trustee or any Secured Party arising out of the exercise
by them of any rights hereunder. If any notice of a proposed sale or other
disposition of Collateral shall be required by law, such notice shall be deemed
reasonable and proper if given at least 30 days before such sale or other
disposition.
(b) If a Notice of Default is in effect, then, subject to the
provisions of Article 6 hereof, the Collateral Trustee (i) shall have the right
and power to institute and maintain such suits and proceedings as it may deem
appropriate to protect and enforce the rights vested in it by this Agreement and
(ii) may proceed by suit or suits at law or in equity to enforce such rights and
to foreclose upon the Collateral and to sell all or, from time to
27
32
time, any of the Collateral under the judgment or decree of a court of competent
jurisdiction.
SECTION 5.04. Right to Appoint a Receiver. If a Notice of Default is in
effect, then, subject to the provisions of Article 6 hereof, upon the filing of
a xxxx in equity or other commencement of judicial proceedings to enforce the
rights of the Collateral Trustee under this Agreement, the Collateral Trustee
shall, to the extent permitted by law, with notice to the Issuer but without
notice to any party claiming through the Issuer, without regard to the solvency
or insolvency at the time of any Person then liable for the payment of any of
the Secured Obligations, without regard to the then value of the Collateral, and
without requiring any bond from any complainant in such proceedings, be entitled
as a matter of right to the appointment of a receiver or receivers of the
Collateral, or any part thereof, and of the revenues and other income thereof,
pending such proceedings, with such powers as the court making such appointment
shall confer, and to the entry of an order directing that the rents, issues,
tolls, profits, royalties, revenues and other income of the property
constituting the whole or any part of the Collateral be segregated, sequestered
and impounded for the benefit of the Collateral Trustee and the Secured Parties,
and the Issuer irrevocably consents to the appointments of such receiver or
receivers and to the entry of such order.
SECTION 5.05. Waiver and Estoppel. (a) The Issuer agrees, to the extent
it may lawfully do so, that it will not at any time in any manner whatsoever
claim or take the benefit or advantage of any appraisal, valuation, stay of
execution, extension, moratorium, turnover or redemption law, or any law
permitting it to direct the order in which the Collateral shall be sold, now or
at any time hereafter in force, which may delay, prevent or otherwise affect the
performance or enforcement of this Agreement and hereby waives all benefit or
advantage of all such laws and covenants that it will not hinder, delay or
impede the execution of any power granted to the Collateral Trustee in this
Agreement but will suffer and permit the execution of every such power as though
no such law were in force.
(b) The Issuer, to the extent it may lawfully do so, on behalf of
itself and all who may claim through or under it, waives and releases all rights
to demand or to have any marshalling of the Collateral upon any sale, whether
made under any power of sale granted herein or pursuant to judicial proceedings
or upon any foreclosure or any enforcement of this Agreement and consents and
agrees that all the Collateral may at any such sale be offered and sold as an
entirety.
(c) The Issuer waives, to the extent permitted by applicable law,
presentment, demand, protest and any notice of any kind (except notices
explicitly required hereunder)
28
33
in connection with this Agreement and any action taken by the Collateral Trustee
with respect to the Collateral.
SECTION 5.06. Limitation on Collateral Trustee's Duty in Respect of
Collateral. Beyond its duties as to the custody thereof expressly provided
herein and to account to the Secured Parties and the Issuer for moneys and other
property received by it hereunder and to make distributions in accordance with
the provisions hereof, the Collateral Trustee shall not have any duty to the
Issuer or to the Secured Parties as to any Collateral in its possession or
control or in the possession or control of any of its agents or nominees, or any
income thereon or as to the preservation of rights against prior parties or any
other rights pertaining thereto except to treat such Collateral in its
possession and control with the same degree of care as it accords its own
property.
SECTION 5.07. Payments. All payments received by the Collateral Trustee
in respect of the Collateral (including as a result of the exercise of remedies
hereunder) shall be deposited in the Collection Account for distribution in
accordance with Section 3.02.
SECTION 5.08. Stamp and Other Similar Taxes. The Issuer agrees to
indemnify and hold harmless the Collateral Trustee and each Secured Party from
any present or future claim for liability for any stamp or any other similar tax
and any penalties or interest with respect thereto, which may be assessed,
levied or collected by any jurisdiction in connection with this Agreement or any
Collateral. The obligations of the Issuer under this Section 5.08 shall survive
the termination of the other provisions of this Agreement.
SECTION 5.09. Filing Fees, Excise Taxes, Etc. The Issuer agrees to pay
or to reimburse the Collateral Trustee for any and all payments made by the
Collateral Trustee in respect of all filing, recording and registration fees,
excise taxes and other similar imposts which may be payable or determined to be
payable by the Collateral Trustee in respect of the execution and delivery of
this Agreement. The obligations of the Issuer under this Section 5.09 shall
survive the termination of the other provisions of this Agreement.
SECTION 5.10. Indemnification. The Issuer agrees to pay, indemnify, and
hold the Collateral Trustee harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits and
reasonable out-of-pocket costs, expenses (including, without limitation, the
reasonable fees of counsel) or disbursements of any kind or nature whatsoever
with respect to the enforcement of this Agreement, unless arising from the gross
negligence or willful misconduct of the Collateral Trustee (including, without
limitation, indemnification of the Collateral Trustee for liabilities for the
net amount of taxes (after taking account of any deduction, credit or other tax
29
34
reduction or benefit available by reason of the imposition of any such tax) in
any jurisdiction in which the Collateral Trustee would not otherwise be subject
to tax except by reason of its acting hereunder (directly or through agents,
separate trustees or co-trustees)). The agreements in this Section 5.10 shall
survive the termination of the other provisions of this Agreement.
SECTION 5.11. Deficiency. If the proceeds of the Collateral are
insufficient to cover the costs and expenses hereunder and the payment in full
of the Secured Obligations, the Issuer shall remain liable for any deficiency.
SECTION 5.12. Removals, Etc. Without at least 30 days prior written
notice to the Collateral Trustee and the taking of any such action as shall be
requested by the Collateral Trustee to maintain the perfection of the security
interests granted under this Agreement, the Issuer shall not (i) maintain its
chief executive office at any place other than at the following address: 000
Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx or (ii) change its name, or the name under which
it does business, from the name shown on the signature pages hereto.
SECTION 5.13. Termination. (a) When all SENS Secured Obligations shall
have been paid in full and the Indenture Trustee shall have delivered a written
notice to such effect to the Collateral Trustee, this Agreement shall terminate
as to the Indenture and, subject to Section 3.05(b), the Collateral Trustee
shall forthwith cease to hold the Collateral for the benefit of the Noteholders.
(b) When all Credit Facility Secured Obligations shall have been paid
in full, the commitments under the Credit Facility Agreement shall have been
terminated and the Administrative Agent shall have delivered a written notice to
such effect to the Collateral Trustee, this Agreement shall terminate as to the
Credit Facility Agreement and, subject to Section 3.05(b), the Collateral
Trustee shall forthwith cease to hold the Collateral for the benefit of the
Credit Facility Lenders and the Credit Facility Agents.
(c) When any Additional Secured Obligations shall have been paid in
full and the holders of such Additional Secured Obligations (or an authorized
representative of such holders) shall have delivered a written notice to such
affect to the Collateral Trustee, this Agreement shall terminate as to such
Additional Secured Obligations and, subject to Section 3.05(b), the Collateral
Trustee shall forthwith cease to hold the Collateral for the benefit of the
holders of such Additional Secured Obligations.
SECTION 5.14. Further Assurances. (a) The Issuer agrees that now or at
any time in the future, on being required to do so by the Collateral Trustee,
the Issuer will do or procure the doing of all such acts and/or execute and
deliver, or procure the execution and
30
35
delivery of such further documents(including without limitation the filing of
Uniform Commercial Code continuation statements) in a form satisfactory to the
Collateral Trustee, and do such other acts and things as the Collateral Trustee
may reasonably request in order fully to effect the purposes of this Agreement
and secure to the Collateral Trustee the full benefit of the rights, powers and
remedies conferred upon the Collateral Trustee in this Agreement.
(b) Unless the Collateral Trustee shall have received a Notice of
Default, the Collateral Trustee, the Credit Facility Lenders, the Administrative
Agent, the Indenture Trustee and holders of any Additional Secured Obligations
shall execute such documents and take such action and do such things as may be
necessary or convenient to enable the Issuer, as grantor of the security
interest in the Export Contracts and the Export Receivables, to exercise the
rights retained by it in the Export Contracts and the Export Receivables, and no
Noteholder, Credit Facility Lender or holder of an Additional Secured
Obligations shall take any action that would unreasonably interfere with actions
in respect of the Export Contracts or the Export Receivables by the Issuer.
ARTICLE 6
INTERCREDITOR ARRANGEMENTS
SECTION 6.01. Limitations Concerning Collateral. Notwithstanding
anything to the contrary herein, the Required Secured Parties shall not(and
shall not direct the Collateral Trustee to) effect any Realization Event with
respect to the Collateral or direct the Collections to an account other than the
Collection Account unless (a) any Secured Obligations shall have been declared
due and payable prior to the stated maturity thereof in accordance with the
relevant Secured Instrument (an "Acceleration Event") or (b) there shall have
occurred and be continuing an event of default with respect to a Secured
Obligation resulting from (i) a failure to make a payment of principal or
interest and such event of default shall remain unremedied for a period of at
least 5 days (a "Payment Event of Default") or (ii) any event or proceeding of
the type described in Section 9(f) of the Credit Facility Agreement (a
"Bankruptcy Event of Default"). Following any Acceleration Event, Payment Event
of Default or Bankruptcy Event of Default, the Collateral Trustee shall effect
any Realization Event with respect to the Collateral or direct the Collections
to an account other than the Collection Account only upon the written
instructions of the Required Secured Parties.
SECTION 6.02. Exercise of Powers; Instructions of Required Secured
Parties. Subject to the provisions of Section 6.01 hereof, the Required Secured
Parties shall have the right, by one or more instruments in writing executed and
delivered to the Collateral
31
36
Trustee, to direct the time, method and place of conducting any proceeding for
any right or remedy available to the Collateral Trustee, or of exercising any
trust or power conferred on the Collateral Trustee, or for the appointment of a
receiver, or to direct the taking or the refraining from taking of any action
authorized by this Agreement; provided that (i) such direction shall not
conflict with the provisions of law or of this Agreement and (ii) the Collateral
Trustee shall be adequately secured and indemnified as provided in Section 7
hereof. In the absence of such direction or indemnification, the Collateral
Trustee shall have no duty to take or refrain from taking any action unless
explicitly required herein. Nothing contained in this Agreement shall limit the
right of any Secured Party to require the Collateral Trustee to comply with the
terms of the Agreement.
SECTION 6.03. Subordination. (a) So long as any SENS Secured
Obligations, Credit Facility Secured Obligations or Additional Secured
Obligations have not been indefeasibly paid in full or any Senior Secured
Instrument remains in effect, whether or not any event or proceeding of the type
described in Section 9(f) of the Credit Facility Agreement shall have been
commenced by or against the Issuer, (i) no Subordinated Creditor will (A)
exercise or seek to exercise any rights or exercise any remedies with respect to
any Collateral or (B) institute any action or proceeding with respect to such
rights or remedies, including without limitation, any action of foreclosure or
(C) contest, protest or object to any foreclosure proceeding or action brought
by any Senior Creditor or the exercise of any rights and remedies under any
Senior Secured Instruments or (D) make any filing or take any other action to
perfect a security interest in any Collateral; and (ii) the Senior Creditors
shall have the exclusive right to enforce and to direct the enforcement of
rights and exercise remedies with respect to the Collateral in accordance with
this Agreement.
(b) In exercising rights and remedies with respect to the Collateral,
the Senior Creditors may enforce the provisions of this Agreement and exercise
remedies hereunder, all in such order and in such manner as they may determine
in the exercise of their sole business judgment. Such exercise and enforcement
shall include, without limitation, the rights to sell or otherwise dispose of
Collateral, to incur expenses in connection with such sale or disposition and to
exercise all the rights and remedies of a secured lender under the Uniform
Commercial Code of any applicable jurisdiction.
(c) The Senior Creditors' rights with respect to the Collateral
include the right to release any or all of the Collateral from the security
interest created pursuant to this Agreement, notwithstanding that the net
proceeds of any such sale may not be used to permanently prepay any Senior
Secured Obligations or Subordinated Secured Obligations. If the Senior Creditors
shall determine, in connection with any sale of Collateral, that the release of
the lien of any Subordinated Secured Instrument on such Collateral in connection
with such sale is necessary or advisable, the Subordinated
32
37
Creditors shall execute such release documents and instruments and shall take
such further actions as the Collateral Trustee or the Senior Creditors shall
request. Each Subordinated Creditor hereby irrevocably constitutes and appoints
the Collateral Trustee and any officer or agent of the Collateral Trustee, with
full power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of such Subordinated
Creditor and in the name of such Subordinated Creditor or in the Collateral
Trustee's own name, from time to time in the Collateral Trustee's discretion,
for the purpose of carrying out the terms of this paragraph, to take any and all
appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of this paragraph,
including, without limitation, any financing statements, endorsements,
assignments or other instruments of transfer or release. Each Subordinated
Creditor hereby ratifies all that said attorneys shall lawfully do or cause to
be done pursuant to the power of attorney granted in this paragraph. Any release
(other than a release in connection with the payment in full of the Senior
Secured Obligations that is not made from the Proceeds of any Collateral) of
Collateral by the Senior Creditors shall be binding on the holders of
Subordinated Secured Obligations, and the holders of such obligations shall have
no rights with respect to any such released Collateral.
ARTICLE 7
THE COLLATERAL TRUSTEE
SECTION 7.01. Acceptance of Trust. The Collateral Trustee, for itself
and its successors, hereby accepts the trusts created by this Agreement upon the
terms and conditions hereof. The Collateral Trustee acknowledges that it shall
hold the Instruments and any other type of "possessory" Collateral for the
benefit of itself and for the benefit of the Secured Parties and the Issuer.
SECTION 7.02. Exculpatory Provisions. (a) The Collateral Trustee shall
not be responsible in any manner whatsoever for the correctness of any recitals,
statements, representations or warranties herein, all of which are made solely
by the Issuer. The Collateral Trustee makes no representations as to the value
or condition of the Collateral or any part thereof, or as to the title of the
Issuer thereto or as to the security or perfection afforded by this Agreement,
or as to the validity, execution (except its own execution), enforceability,
legality or sufficiency of this Agreement, or the Secured Obligations, and the
Collateral Trustee shall incur no liability or responsibility in respect of any
such matters. The Collateral Trustee shall not be responsible for insuring the
Collateral or for the payment of taxes, charges or assessments or discharging of
liens upon the Collateral or otherwise as to the maintenance of the Collateral,
except that if the Collateral Trustee takes possession of any Collateral, the
Collateral Trustee shall use the care accorded its own assets in the
preservation of the Collateral in its possession.
33
38
(b) The Collateral Trustee shall not be required to ascertain or
inquire as to the performance by the Issuer of any of the covenants or
agreements contained herein or in any Secured Instrument.
(c) The Collateral Trustee shall be under no obligation or duty to
take any action under this Agreement if taking such action (i) would subject the
Collateral Trustee to a tax in any jurisdiction where it is not then subject to
a tax or (ii) would require the Collateral Trustee to qualify to do business in
any jurisdiction where it is not then so qualified, unless the Collateral
Trustee receives security or indemnity satisfactory to it against such tax (or
equivalent liability), or any liability resulting from such qualification or
failure to be so qualified, in each case as results solely from the taking of
such action under this Agreement.
(d) Notwithstanding any other provision of this Agreement (other than
those relating to the care of the Collateral in its possession), the Collateral
Trustee shall not be personally liable for any action taken or omitted to be
taken by it in accordance with this Agreement except for its own gross
negligence or willful misconduct.
(e) The Collateral Trustee shall have the same rights with respect to
any Secured Obligation held by it as any other Secured Party and may exercise
such rights as though it were not the Collateral Trustee hereunder, and may
accept deposits from, lend money to, and generally engage in any kind of banking
or trust business with, the Issuer as if it were not the Collateral Trustee.
SECTION 7.03. Delegation of Duties. The Collateral Trustee may execute
any of the trusts or powers hereof and perform any duty hereunder either
directly or by or through agents or attorneys-in-fact. The Collateral Trustee
shall be entitled to advice of counsel concerning all matters pertaining to such
trusts, powers and duties. The Collateral Trustee shall not be responsible for
the negligence or misconduct of any agents or attorneys-in-fact selected by it
with reasonable care. The Collateral Trustee may enter into agreements with such
agents or attorneys-in-fact in such form as it may deem necessary or advisable,
and shall be entitled to amend, modify, or waive the provisions of such
agreements from time to time.
SECTION 7.04. Reliance by Collateral Trustee. (a) Whenever in the
administration of this Agreement, the Collateral Trustee shall deem it necessary
or desirable that a factual matter be proved or established in connection with
the Collateral Trustee taking, suffering or omitting any action hereunder or
thereunder, such matter (unless other evidence in respect thereof is herein
specifically prescribed) may be deemed to be conclusively proved or established
by a certificate of a Responsible Officer of the
34
39
Issuer delivered to the Collateral Trustee, and such certificate shall be full
warrant to the Collateral Trustee for any action taken, suffered or omitted in
reliance thereon.
(b) The Collateral Trustee may consult with counsel and any opinion of
such counsel shall be full and complete authorization and protection in respect
of any action taken or suffered by it hereunder in accordance therewith. The
Collateral Trustee shall have the right at any time to seek instructions
concerning the administration of this Agreement from any court of competent
jurisdiction.
(c) The Collateral Trustee may rely, and shall be fully protected in
acting, upon any resolution, statement, certificate, instrument, opinion,
report, notice, request, consent, order, bond or other paper or document which
it has no reason to believe to be other than genuine and to have been signed or
presented by the proper party or parties or, in the case of cables, facsimiles
and telexes, to have been sent by the proper party or parties. The Collateral
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Collateral Trustee and conforming to the requirements of this
Agreement.
(d) The Collateral Trustee shall not be under any obligation to
exercise any of the rights or powers vested in the Collateral Trustee by this
Agreement, at the request or direction of the Required Secured Parties pursuant
to this Agreement or otherwise, unless the Collateral Trustee shall have been
provided adequate security and indemnity against the costs, expenses and
liabilities which may be incurred by it in compliance with such request or
direction.
SECTION 7.05. Limitations on Duties of Collateral Trustee. (a) Unless a
Notice of Default is in effect, the Collateral Trustee shall be obligated to
perform such duties and only such duties as are specifically set forth in this
Agreement and no implied covenants or obligations shall be read into this
Agreement against the Collateral Trustee. If and so long as a Notice of Default
is in effect and subject to the provisions of Article 6 hereof, the Collateral
Trustee shall exercise the rights and powers vested in it by this Agreement, and
shall not be liable with respect to any action taken by it, or omitted to be
taken by it, in accordance with the direction of the Required Secured Parties
pursuant to Article 6 hereof.
(b) Except as herein otherwise expressly provided, the Collateral
Trustee shall not be under any obligation to take any action which is
discretionary with the Collateral Trustee under the provisions hereof except
upon the written request of the Required Secured Parties pursuant to Article 6
hereof.
(c) No provision of this Agreement shall be deemed to impose any duty
or obligation on the Collateral Trustee to perform any act or acts or exercise
any right,
35
40
power, duty or obligation conferred or imposed on it, in any jurisdiction in
which it shall be illegal, or in which the Collateral Trustee shall be
unqualified or incompetent, to perform any such act or acts or to exercise any
such right, power, duty or obligation or if such performance or exercise would
constitute doing business by the Collateral Trustee in such jurisdiction or
imposes a tax on the Collateral Trustee by reason thereof.
SECTION 7.06. Moneys to Be Held in Trust. All moneys received by the
Collateral Trustee under or pursuant to any provision of this Agreement (except
for its own fees) shall be held in trust for the purposes for which they were
paid or are held.
SECTION 7.07. Resignation and Removal of the Collateral Trustee. (a)
The Collateral Trustee may at any time, by giving written notice to the Issuer,
the Administrative Agent and the Indenture Trustee and the authorized
representative of the holders of Qualified Additional Secured Obligations,
resign and be discharged of the responsibilities hereby created, such
resignation to become effective upon (i) the appointment of a successor
Collateral Trustee, (ii) the acceptance of such appointment by such successor
Collateral Trustee, and (iii) the approval of such successor Collateral Trustee
evidenced by one or more instruments signed by the Issuer, the Administrative
Agent and the Indenture Trustee and the authorized representative of the holders
of Qualified Additional Secured Obligations (which approval shall not be
unreasonably withheld). If no successor Collateral Trustee shall be appointed
and shall have accepted such appointment within 90 days after the Collateral
Trustee gives the aforesaid notice of resignation, the Collateral Trustee, the
Issuer, the Indenture Trustee, the Administrative Agent, any authorized
representative of the holders of Qualified Additional Secured Obligation or any
Secured Party may apply to any court of competent jurisdiction to appoint a
successor Collateral Trustee, to act until such time, if any, as a successor
Collateral Trustee shall have been appointed as provided in this Section 7.07.
Any successor so appointed by such court shall immediately and without further
act be superseded by any successor Collateral Trustee. The Administrative Agent
and the Indenture Trustee may, at any time with the prior approval of the
Issuer, which approval shall not be unreasonably withheld, remove the Collateral
Trustee and appoint a successor Collateral Trustee, such removal to be effective
upon the acceptance of such appointment by the successor. The Issuer may, at any
time with the prior approval of (i) the Administrative Agent (if any Credit
Facility Secured Obligations remain outstanding), (ii) the Indenture Trustee (if
any SENS Secured Obligations are outstanding) and (iii) the agent or trustee, if
any, for the holders of any Additional Secured Obligations (if any Qualified
Additional Secured Obligations are outstanding), in each case such approval not
to be unreasonably withheld, remove the Collateral Trustee and appoint a
successor Collateral Trustee, such removal to be effective upon the acceptance
of such appointment by the successor. Any Collateral Trustee shall be entitled
to any rights of indemnification provided for herein to the extent incurred or
arising, or relating to events occurring,
36
41
before such resignation or removal becomes effective. Notwithstanding anything
to the contrary in this Section 7.07, the Administrative Agent, the Indenture
Trustee or the authorized representative of the holders of Qualified Additional
Secured Obligations shall not be entitled to any rights under this Section 7.07
if the aggregate outstanding principal amount of the Senior Secured Obligations
of the Secured Parties represented by such party constitutes less than 10% of
the aggregate principal outstanding amount of all Senior Secured Obligations.
(b) If at any time the Collateral Trustee shall be removed or
otherwise become incapable of acting, or if at any time a vacancy shall occur in
the office of the Collateral Trustee for any other cause, a successor Collateral
Trustee may be appointed by the Administrative Agent, the Indenture Trustee, the
authorized representative of the holders of Additional Secured Obligations or
the Issuer (in each case with the consent of the Administrative Agent, the
Indenture Trustee, such authorized representative and the Issuer, such consent
not to be unreasonably withheld). In either case, the powers, duties, authority
and title of the predecessor Collateral Trustee shall be terminated and canceled
without procuring the resignation of such predecessor and without any other
formality (except as may be required by applicable law) other than appointment
and designation of a successor in writing duly acknowledged and delivered to the
predecessor and the Issuer.
(c) Any such appointment and designation of a successor Collateral
Trustee shall be full evidence of the right and authority to make the same and
of all the facts therein recited, and this Agreement shall vest in such
successor, without any further act, deed or conveyance, all the estates,
properties, rights, powers, trusts, duties, authority and title of its
predecessor; but the predecessor Collateral Trustee shall, nevertheless, on the
written request of the Administrative Agent, the Indenture Trustee, the
authorized representative of the holders of Additional Secured Obligations, the
Issuer, or the successor, subject to the payment in full of all of the
predecessive Collateral Trustee's unpaid fees and expenses payable hereunder,
execute and deliver an instrument transferring to such successor all the
estates, properties, rights, powers, trusts, duties, authority and title of such
predecessor hereunder and shall deliver all Collateral held or subsequently
received by it or its agents to such successor. Should any deed, conveyance or
other instrument in writing from the Issuer be required by any successor
Collateral Trustee solely for the purpose of more fully and certainly vesting in
such successor the estates, properties, rights, powers, trusts, duties,
authority and title vested or intended to be vested in the predecessor
Collateral Trustee, any and all such deeds, conveyances and other instruments in
writing shall, on request of such successor, be executed, acknowledged and
delivered by the Issuer. If the Issuer shall not have executed and delivered any
such deed, conveyance or other instrument within 10 Business Days after it
received a written request from the successor Collateral Trustee to do so, or if
a Notice of Default is in effect, the predecessor Collateral Trustee may execute
the same on behalf of
37
42
the Issuer. The Issuer hereby appoints any predecessor Collateral Trustee, as
its agent and attorney to act for it as provided in the next preceding sentence.
SECTION 7.08. Status of Successor Collateral Trustee. Every successor
Collateral Trustee appointed pursuant to Section 7.07 shall be a bank or trust
company in good standing and having power to act as Collateral Trustee
hereunder, incorporated under the laws of (or having a branch located within)
the United States of America or any State thereof or the District of Columbia
and having its principal corporate trust office within the 48 contiguous States
and shall also have capital, surplus and undivided profits of not less than
$500,000,000, if there be such an institution with such capital, surplus and
undivided profits willing, qualified and able to accept the trust hereunder upon
reasonable or customary terms.
SECTION 7.09. Merger of the Collateral Trustee. Any corporation into
which the Collateral Trustee may be merged, or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to
which the Collateral Trustee shall be a party, shall be Collateral Trustee under
this Agreement without the execution or filing of any paper or any further act
on the part of the parties hereto.
SECTION 7.10. Treatment of Payee or Indorsee by Collateral Trustee;
Representatives of Secured Parties. (a) The Collateral Trustee may treat the
registered holder or, if none, the payee or indorsee of any promissory note or
debenture evidencing a Secured Obligation as the absolute owner thereof for all
purposes and shall not be affected by any notice to the contrary, whether such
promissory note or debenture shall be past due or not.
(b) Any Person (other than the Administrative Agent or the Indenture
Trustee), which shall be designated as the duly authorized representative of one
or more Secured Parties to act as such in connection with any matters pertaining
to this Agreement or the Collateral shall present to the Collateral Trustee such
documents, including, without limitation, opinions of counsel, as the Collateral
Trustee may reasonably require, in order to demonstrate to the Collateral
Trustee the authority of such Person to act as the representative of such
Secured Parties. The authority of the Administrative Agent, the Collateral Agent
and the Indenture Trustee shall be demonstrated by the Credit Facility Agreement
and the Indenture.
SECTION 7.11. Reports by Collateral Trustee. (a) On or before the tenth
day of each calendar month immediately following any month in which the
Collateral Trustee receives Acknowledgments, the Collateral Trustee shall
provide each of the Issuer and the Trustee with a written statement listing the
Acknowledgments received by the Collateral Trustee during the immediately
preceding calendar month.
38
43
(b) The Collateral Trustee shall notify the Issuer and the Trustee
within five Business Days after the end of each calendar month of the aggregate
amount deposited in the Collection Account during such calendar month and of all
amounts distributed from the Collection Account during such calendar month.
ARTICLE 8
MISCELLANEOUS
SECTION 8.01. No Waiver. No failure on the part of the Collateral
Trustee to exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall impair any right, remedy
or power or operate as a waiver thereof; nor shall any single or partial
exercise by the Collateral Trustee of any right, power or remedy hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy. The remedies herein are cumulative and are not exclusive
of any other remedies provided hereunder or under the Indenture or the Credit
Facility Agreement or any other Secured Instrument, or now or hereafter given by
statute, law, equity or otherwise. If the Collateral Trustee shall have
proceeded to enforce any right, remedy or power under this Agreement and the
proceeding for the enforcement thereof shall have been discontinued or abandoned
for any reason or shall have been determined adversely to the Collateral
Trustee, then the Issuer, the Collateral Trustee and the Secured Parties shall,
subject to any determination in such proceeding, severally and respectively be
restored to their former positions and rights hereunder or thereunder with
respect to the Collateral and in all other respects, and thereafter all rights,
remedies and powers of the Collateral Trustee shall continue as though no such
proceeding had been taken.
SECTION 8.02. Notices. All notices, requests, demands, directions or
other communications to or upon the respective parties hereto shall be in
writing and shall be given or made by telecopy, first-class mail or hand
delivery as follows:
If to the Issuer: Southern Peru Limited
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: 000-000-0000
Attention: Treasurer
With copy to: E. Xxxxx Xxxxxx, Xx., Esq.
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: 000-000-0000
39
44
If to the Collateral Trustee: Deutsche Bank AG,
New York Branch
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: 000-000-0000
Attention: Corporate Agency Services,
Xxxxx X. Xxxxx
or at such other address or telecopier number as may be designated by either
party in a notice to the other party. All such notices or other communications
shall be deemed to have been duly given when transmitted by telex or telecopier,
personally delivered by hand or, in the case of a mailed notice, upon receipt
thereof, in each case given or addressed as aforesaid.
SECTION 8.03. Expenses. The Issuer covenants and agrees to pay or
reimburse the Collateral Trustee for all documented expenses, disbursements and
advances reasonably incurred or made by or on behalf of the Collateral Trustee
in accordance with any of the provisions of this Agreement (including, without
limitation, the fees, documented expenses and disbursements reasonably incurred
by its counsel) in connection with (i) any enforcement or collection proceeding
conducted in accordance with Article 6 hereof, including, without limitation,
all manner of participation in or other involvement with (w) performance by the
Collateral Trustee of any obligations of the Issuer in respect of the Collateral
that the Issuer has failed or refused to perform, (x) bankruptcy, insolvency,
receivership, foreclosure, winding up or liquidation proceedings, or any actual
or attempted sale, or any exchange, enforcement, collection, compromise or
settlement in respect of any of the Collateral, and for the care of the
Collateral and defending or asserting rights and claims of the Collateral
Trustee in respect thereof, by litigation or otherwise, (y) judicial or
regulatory proceedings and (z) workout, restructuring or other negotiations or
proceedings and (ii) the enforcement of this Section 8.03, and all such costs
and expenses shall be Secured Obligations entitled to the benefits of the
collateral security provided pursuant this Agreement. However, any such expense,
disbursement or advance arising from the Collateral Trustee's gross negligence
or wilful misconduct shall not be reimbursed. The provisions of this Section
8.03 shall survive the termination of this Agreement.
SECTION 8.04. Amendments, Etc. Except as provided under Section 3.03
with respect to supplemental agreements hereto, (a) the terms of this Agreement
may from time to time and at any time be altered or amended by an instrument in
writing duly executed by the Issuer and the Collateral Trustee, without the
consent of any other Secured Party other than the consent of the Collateral
Agent (such consent not to be unreasonably withheld) (1) in order to comply with
the requirements of (i) the Trust
40
45
Indenture Act as then in effect or (ii) any Rating Agency that is rating the
first Series of SENS (prior to the issuance thereof) and (2) to cure any
ambiguity, to correct or supplement any provision herein which may be defective
or inconsistent with any other provision herein or to make any other provisions
with respect to matters or questions arising hereunder and (b) the terms of this
Agreement may from time to time and at any time, be waived, altered or amended
only by an instrument in writing duly executed by the Issuer, the Collateral
Trustee and the holders of at least 51% of the principal amount of the Senior
Secured Obligations then outstanding; provided in each case that no such waiver,
alteration or amendment shall adversely affect the rights or benefits afforded
by this Agreement (i) with respect to the holders of any Series of SENS without
the written consent of the requisite percentages of Noteholders as provided in
the Indenture, (ii) with respect to the Credit Facility Lenders, without the
written consent of the requisite percentages of Credit Facility Lenders as
provided in the Credit Facility Agreement or (iii) with respect to the holders
of Additional Secured Obligations, the requisite percentages of holders of any
Additional Secured Obligations as provided in the Senior Secured Instrument
under which such Additional Secured Obligations were issued. Any such amendment
or waiver shall be binding upon the Collateral Trustee, each Secured Party and
the Issuer.
SECTION 8.05. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of the
Issuer, the Collateral Trustee and each holder of any of the Secured
Obligations; provided, however, that the Issuer shall not assign or transfer its
rights hereunder without the prior written consent of the Collateral Trustee,
the requisite percentages of Noteholders as provided in the Indenture, the
requisite percentages of Credit Facility Lenders as provided in the Credit
Facility Agreement and the requisite percentages of holders of any Additional
Secured Obligations as provided in the Senior Secured Instrument under which
such Additional Secured Obligations were issued.
SECTION 8.06. Captions. The captions and section headings appearing
herein are included solely for convenience of reference and are not intended to
affect the interpretation of any provision of this Agreement.
SECTION 8.07. Counterparts. This Agreement may be executed in any
number of counterparts each of which shall be an original and such counterparts
taken together shall constitute one and the same instrument, and either of the
parties hereto may execute this Agreement by signing any such counterpart.
SECTION 8.08. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
41
46
SECTION 8.09. Agents and Attorneys-in-Fact. The Collateral Trustee may
employ agents and attorneys-in-fact in connection herewith and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it pursuant to the exercise of reasonable care.
SECTION 8.10. Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Collateral Trustee
in order to carry out the intentions of the parties hereto as nearly as may be
possible and (ii) the invalidity or unenforceability of any provision hereof in
any jurisdiction shall not affect the validity or enforceability of such
provision in any other jurisdiction.
SECTION 8.11. Jurisdiction and Process. THE ISSUER AGREES THAT ANY
LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER DOCUMENT EXECUTED IN CONNECTION HEREWITH, OR ANY LEGAL ACTION OR
PROCEEDING TO EXECUTE OR OTHERWISE ENFORCE ANY JUDGMENT OBTAINED AGAINST THE
ISSUER, FOR BREACH HEREOF OR THEREOF, OR AGAINST ANY OF ITS PROPERTIES, MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK BY OR ON BEHALF OF THE COLLATERAL
TRUSTEE AND THE ISSUER HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURTS FOR PURPOSES OF ANY SUCH LEGAL ACTION
OR PROCEEDING. IN ADDITION (A), THE ISSUER HEREBY IRREVOCABLY WAIVES TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION HEREWITH
OR THEREWITH BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND ANY CLAIM THAT ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM AND (B) THE ISSUER AND THE COLLATERAL TRUSTEE HEREBY WAIVE
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 8.12. Secured Parties Bound. Each Secured Party or its
representative (which, in the case of any Series of SENS, shall be the Indenture
Trustee and, in the case
42
47
of the Credit Facility Lenders, shall be the Administrative Agent under the
Credit Facility Agreement) shall execute and deliver an acknowledgment
substantially in the form of Exhibit 8.12 hereto and, upon execution and
delivery of such acknowledgment to the Collateral Trustee, such Secured Party
shall be entitled to the benefits of this Agreement whether or not such
acknowledgment is acknowledged by the Collateral Trustee.
SECTION 8.13. Effectiveness. This Agreement shall become effective upon
(i) receipt by the Collateral Trustee of written consent to the provisions
hereof by the Required Lenders and (ii) (a) receipt by the Collateral Trustee of
written consent to the provisions hereof by 51% of the outstanding principal
amount of the first Series of SENS or (b) the consummation of the exchange of
notes of the first Series of SENS for new notes in accordance with the
provisions of the Registration Rights Agreement dated as of May 30, 1997 entered
into in connection with the offering of the first Series of SENS.
43
48
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
SOUTHERN PERU LIMITED
as Issuer
By: _____________________________________
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Collateral Trustee
By: _____________________________________
Title:
By: _____________________________________
Title:
44
49
Exhibit 2.02
Excluded Export Receivables
(1) Contract No. SCR-SPC-014-94 dated as of January 1, 1994 between Mitsui
& Co. Ltd. and SP Limited, as modified for contract year 1997 by
Addendum No. 25, dated November 8, 1996, covering 6,000 metric tons
(6,614 short tons) of Ilo cathodes and as modified for contract year
1997 by Addendum No. 26, (Contract No. SCS-SPC-001-96) dated November
18, 1996, covering 18,000 metric tons (19,841 short tons) of SX/EW
cathodes.
(2) Contract No. SCR-SPC-002-97, dated December 9, 1996, between ASARCO
Incorporated and SP Limited covering 7,200 metric tons (7,937 short
tons) of Ilo cathodes.
50
Exhibit 3.01A
[FORM OF NOTICE TO CUSTOMERS]
[Date]
[Name of Customer]
[Address]
Dear Sirs:
Reference is made to Contract No. _____, made as of ______________,
1997, between you and Southern Peru Limited (the "Initial Contract").
This is to notify you that, in connection with certain of its financing
arrangements, Southern Peru Limited has granted a security interest in all of
its rights, title and interest under the Initial Contract and any contracts
entered into in the future relating to the sale of copper by Southern Peru
Limited to you (such future contracts, together with the Initial Contract, the
"Contracts"), any receivables arising from the Contracts and all proceeds of the
Contracts and the receivables in favor of Deutsche Bank AG, New York Branch, as
Collateral Trustee (the "Collateral Trustee") for the several banks, other
financial institutions and certain other parties from time to time extending
credit to Southern Peru Limited.
In connection with the granting of the security interest, Southern Peru
has undertaken to instruct its customers to make payments to a bank account
maintained by the Collateral Trustee and acknowledge the security arrangements.
Accordingly, we hereby instruct you (i) to make payment of all sums payable by
you under the Contracts and the receivables directly to the Collateral Trustee
at [insert current payment instructions] and (ii) to execute and deliver to the
Collateral Trustee (with a copy to Southern Peru Limited) the attached Consent,
Acknowledgment and Agreement.
51
Please do not hesitate to contact _____________ at _________ if you
have any questions concerning this request.
Very truly yours,
SOUTHERN PERU LIMITED
By: ___________________________
Name:
Title:
2
52
[FORM OF NOTICE TO BE INCLUDED IN TEXT OF SPOT CONTRACTS]
__. NOTICE OF SECURITY INTEREST.
Southern Peru hereby notifies you that, in connection with certain of
its financing arrangements, Southern Peru has granted a security interest in all
of its rights, title and interest under this agreement and any receivables
arising from this agreement in favor of Deutsche Bank AG, New York Branch, as
Collateral Trustee (the "Collateral Trustee") for the several banks, financial
institutions and certain other parties from time to time extending credit to
Southern Peru. In connection with the granting of such security interest we
hereby instruct you to make all payments hereunder directly to the Collateral
Trustee at [insert current payment instructions].
3
53
Exhibit 3.01B
Form of Consent, Acknowledgment and Agreement
To: Deutsche Bank AG, New York Branch
as Assignee, as referred to below
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The undersigned (the "Purchaser") hereby refers to Contract No.
_________ dated _________, between the Purchaser and Southern Peru Limited (the
"Assignor") (as it may thereafter be amended, supplemented and otherwise
modified from time to time and in effect, the "Initial Contract"; the Initial
Contract, together with any other contract entered into in the future relating
to the sale of copper by the Assignor, Southern Peru Copper Corporation or any
direct or indirect subsidiary of either (each, together with its successors and
assigns, an "Assignor Party") to the Purchaser, shall be referred to herein as
the "Contracts"). The Purchaser hereby agrees and undertakes as follows:
SECTION 1. Consent, Acknowledgment and Agreement. The Purchaser hereby
acknowledges and consents in all respects to the assignment by any Assignor
Party to Deutsche Bank AG, New York Branch (the "Assignee"), as collateral
trustee for the several banks, other financial institutions and certain other
parties from time to time extending credit to the Assignor (the "Lenders"), of
all the rights, title and interests of such Assignor Party under the Contracts,
any receivables arising from the Contracts and all proceeds of the Contracts and
the receivables, and agrees irrevocably for the benefit of the Lenders and the
Assignee to make payment of all sums payable by the Purchaser under the
Contracts and the receivables directly to account number 64 0000000 maintained
by the Assignee at its office at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(ABA No. 026-003-780) unless and until it has received notice from the Assignee
that such payments are no longer required to be made to such account. The
Purchaser also confirms that it has not, pursuant to any other notice of sale or
assignment of the Contracts or receivables arising thereunder, agreed to make
payments to any third party with respect to such Contracts or the receivables
arising thereunder.
SECTION 2. Rights and Obligations of the Purchaser. Neither this
Consent, Acknowledgment and Agreement nor the exercise by the Assignee or the
Lenders of any rights it or they may have against any Assignor Party shall cause
the Purchaser to become subject to any obligations or liabilities of any
Assignor Party to the Assignee or the
4
54
Lenders. Except as otherwise set forth herein, this Consent, Acknowledgment and
Agreement shall not subject the Purchaser to any liability to which it would not
otherwise be subjected, nor shall this Consent, Acknowledgment and Agreement
modify in any respect the Purchaser's rights against any Assignor Party.
SECTION 3. Governing Law. THIS CONSENT, ACKNOWLEDGMENT AND AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK.
IN WITNESS WHEREOF, the undersigned Purchaser has executed this
Consent, Acknowledgment and Agreement as of ______________.
[PURCHASER]
By____________________________
Title:
Address:______________________
______________________
______________________
Telephone:____________________
Facsimile:____________________
5
55
Re: Southern Peru Limited Collection Account
Dear Sirs:
In connection with the recent Consent, Acknowledgment and Agreement
sent to you by Southern Peru Limited relating to the assignment of certain
contracts, receivables and proceeds by Southern Peru Limited to Deutsche Bank
AG, New York Branch, as Assignee, this letter advises you that, pursuant to the
enclosed notice from Deutsche Bank, the payment instructions in the Consent,
Acknowledgment and Agreement are incomplete. As indicated in the enclosed
notice, the complete information is:
Deutsche Bank NY
ABA #026 003 780
A/C #1004 2700 0003
Ref: Southern Peru Coll A/C
A/C #64 000061D
Attn: X. Xxxxx 469-8504
We would appreciate your noting this change, and executing and
returning this letter to the attention of ________________ by facsimile (fax
number: _____________) to indicate your receipt of this notice and agreement
with Deutsche Bank to this change.
Thank you for your assistance.
Sincerely yours,
SOUTHERN PERU LIMITED
By__________________________________
ACKNOWLEDGED AND AGREED
By_____________________________
Name:
Title:
6
56
Exhibit 3.01C
Form of Consent, Acknowledgment and Agreement
To: Deutsche Bank AG, New York Branch
as Assignee, as referred to below
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The undersigned (the "Purchaser") hereby refers to Contract No.
_________ dated _________, between the Purchaser and Southern Peru Limited (the
"Assignor") (as it may thereafter be amended, supplemented and otherwise
modified from time to time and in effect, the "Initial Contract"; the Initial
Contract, together with any other contract entered into in the future (except as
the Purchaser may otherwise be directed in writing by the Collateral Trustee)
relating to the sale of copper by the Assignor, Southern Peru Copper
Corporation, or any direct or indirect subsidiary of either (each, together with
its successors and assigns, an "Assignor Party") to the Purchaser, shall be
referred to herein as the "Contracts"). The Purchaser hereby agrees and
undertakes as follows:
SECTION 1. Consent, Acknowledgment and Agreement. The Purchaser hereby
acknowledges and consents in all respects to the assignment by any Assignor
Party to Deutsche Bank AG, New York Branch (the "Assignee"), as collateral
trustee for the several banks, other financial institutions and certain other
parties from time to time extending credit to the Assignor (the "Lenders"), of
all the rights, title and interests of such Assignor Party under the Contracts,
any receivables arising from the Contracts and all proceeds of the Contracts and
the receivables, and agrees irrevocably for the benefit of the Lenders and the
Assignee to make payment of all sums payable by the Purchaser under the
Contracts and the receivables directly to Deutsche Bank NY, ABA # 026 003 780,
account number 1004 2700 0003, ref: Southern Peru Coll A/C, account number 64
0000000 unless and until it has received notice from the Assignee that such
payments are to be directed to another account or are no longer required to be
made. The Purchaser also confirms that it has not, pursuant to any other notice
of sale or assignment of the Contracts or receivables arising thereunder, agreed
to make payments to any third party with respect to such Contracts or the
receivables arising thereunder.
SECTION 2. Rights and Obligations of the Purchaser. Neither this
Consent, Acknowledgment and Agreement nor the exercise by the Assignee or the
Lenders of any
7
57
rights it or they may have against any Assignor Party shall cause the Purchaser
to become subject to any obligations or liabilities of any Assignor Party to the
Assignee or the Lenders. Except as otherwise set forth herein, this Consent,
Acknowledgment and Agreement shall not subject the Purchaser to any liability to
which it would not otherwise be subjected, nor shall this Consent,
Acknowledgment and Agreement modify in any respect the Purchaser's rights
against the Assignor.
SECTION 3. Governing Law. THIS CONSENT, ACKNOWLEDGMENT AND AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK.
IN WITNESS WHEREOF, the undersigned Purchaser has executed this
Consent, Acknowledgment and Agreement as of ______________.
[PURCHASER]
By____________________________
Title:
Address:______________________
______________________
______________________
Telephone:____________________
Facsimile:____________________
8
58
EXHIBIT 4.03
FINANCING STATEMENTS
Debtor Secured Party State Filing Office
------ ------------- ----- -------------
Southern Peru Limited Deutsche Bank AG, New York Branch, as NY New York State
Collateral Agent
Southern Peru Limited Deutsche Bank AG, New York Branch, as NY New York County
Collateral Agent
Southern Peru Limited Deutsche Bank AG, New York Branch, as DL Delaware State
Collateral Agent
Southern Peru Limited Deutsche Bank AG, New York Branch, as NY New York State
Collateral Trustee
Southern Peru Limited Deutsche Bank AG, New York Branch, as NY New York County
Collateral Trustee
Southern Peru Limited Deutsche Bank AG, New York Branch, as DL Delaware State
Collateral Trustee
59
EXHIBIT 8.12
[FORM OF ACKNOWLEDGMENT]
[Date]
Deutsche Bank AG, New York Branch,
as Collateral Trustee
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We hereby confirm that we have received a copy of the Amended and
Restated Collateral Trust and Security Agreement, dated as of May 30, 1997 (the
"Collateral Trust Agreement"), between Southern Peru Limited and Deutsche Bank
AG, New York Branch ("Deutsche"), as Collateral Trustee (in such capacity, the
"Collateral Trustee") [, as amended pursuant to [describe any amendments]]. We
hereby agree that Deutsche (or any successor Collateral Trustee pursuant to the
Collateral Trust Agreement) shall act as Collateral Trustee under the Collateral
Trust Agreement for the benefit of [describe applicable Secured Parties], among
others, and we hereby confirm our agreement to the terms and conditions of the
Collateral Trust Agreement.
This Acknowledgment shall be governed by, and construed in
accordance with, the laws of the State of New York.
[NAME OF APPLICABLE SECURED PARTY
OR DULY AUTHORIZED REPRESENTATIVE]
By:______________________________
Title:
ACKNOWLEDGED
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Collateral Trustee
By:______________________________
Title:
By:______________________________
Title:
