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EXHIBIT 4.1 (a)
CONFORMED COPY
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SOUTHERN PERU LIMITED,
COMPANY,
SOUTHERN PERU COPPER CORPORATION,
GUARANTOR,
AND
CITIBANK, N.A.
TRUSTEE, REGISTRAR AND
PRINCIPAL PAYING AGENT,
--------------------
INDENTURE
DATED AS OF MAY 30, 1997
RELATING TO
SECURED EXPORT NOTES
(ISSUABLE IN SERIES)
--------------------
================================================================================
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TABLE OF CONTENTS
PAGE
RECITALS.................................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION....................... 2
SECTION 101. DEFINITIONS.................................................... 2
Accelerated Amortization Event..................................... 2
Accountant......................................................... 2
Acknowledgments ................................................... 2
Act................................................................ 2
Additional Amounts................................................. 3
Additional Percentage.............................................. 3
Additional Secured Obligations..................................... 3
Adequate Substitute Collateral..................................... 3
Affiliate.......................................................... 3
Asset Disposition.................................................. 3
Attributable Principal Amount...................................... 3
Authenticating Agent............................................... 3
Authorized Newspaper............................................... 3
Basic Collateral Percentages....................................... 3
Blocked Collections................................................ 3
Blocked Percentage................................................. 3
Blocking Event .................................................... 4
Board of Directors................................................. 4
Board Resolution................................................... 4
Business Day....................................................... 4
Capitalization Ratio............................................... 4
Collateral......................................................... 4
Collateral Trust Agreement......................................... 4
Collateral Trustee................................................. 5
Collection Account................................................. 5
Collections........................................................ 5
Commission......................................................... 5
Company............................................................ 5
Company Notice..................................................... 5
Company Request.................................................... 5
Company Order...................................................... 5
Guarantor Request.................................................. 5
Guarantor Order.................................................... 5
Concessions........................................................ 5
Consolidated Net Debt.............................................. 5
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Consolidated Net Worth............................................. 5
Consolidated Tangible Net Worth.................................... 6
Copper............................................................. 6
Copper Subsidiary.................................................. 6
Corporate Trust Office............................................. 6
Credit Facility.................................................... 6
Credit Facility Collateral Account................................. 6
Credit Facility Total Collateral Percentage........................ 6
Cuajone Mine....................................................... 6
Debt............................................................... 6
Debt Service Retention Event....................................... 7
Default............................................................ 7
Defaulted Interest................................................. 7
Designated Total Collateral Percentages............................ 7
Dollar", "US$" or "$............................................... 7
Duff & ▇▇▇▇▇▇...................................................... 7
Eligible Investments............................................... 7
Environmental Laws................................................. 8
Euroclear.......................................................... 8
Event of Default................................................... 8
Excess Collections................................................. 8
Exchange Act....................................................... 8
Exchange Offer..................................................... 8
Excess Percentage.................................................. 9
Excluded Export Receivables........................................ 9
Export Contracts................................................... 9
Export Receivables................................................. 9
Financing Lease ................................................... 9
Government Obligations............................................. 9
Global Security ................................................... 9
Governmental Agency................................................ 9
Governmental Authority............................................. 9
Guarantor.......................................................... 9
Guarantees......................................................... 10
Holder............................................................. 10
Ilo Refinery....................................................... 10
Ilo Smelter........................................................ 10
Indenture.......................................................... 10
Initial Deposit ................................................... 10
Issue Date......................................................... 10
Lien............................................................... 10
Make-Whole Premium................................................. 10
Mandatory Prepayment Event......................................... 12
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Material Adverse Effect............................................ 12
Material Subsidiary................................................ 12
Maturity........................................................... 12
Minority Interests................................................. 12
▇▇▇▇▇'▇............................................................ 12
Officers' Certificate.............................................. 12
Opinion of Counsel................................................. 13
Outstanding........................................................ 13
Outstanding Principal Amount....................................... 14
PAMA............................................................... 14
Paying Agent....................................................... 14
Payment Date....................................................... 14
Permitted Liens.................................................... 14
Person............................................................. 15
Peru............................................................... 15
Peruvian Branch ................................................... 15
Peruvian Government................................................ 15
Place of Payment................................................... 15
Potential Trigger Event............................................ 15
Predecessor SEN.................................................... 15
Principal Paying Agent............................................. 15
Principal Properties............................................... 15
Proceeds........................................................... 15
Program Amount..................................................... 15
Property........................................................... 15
Qualified Letter of Credit......................................... 15
Realization Event.................................................. 16
Receivable......................................................... 16
Redemption Date ................................................... 16
Redemption Price................................................... 16
Registrar.......................................................... 16
Regular Record Date................................................ 16
Required Balance................................................... 16
Requirements of Law................................................ 16
Responsible Officer................................................ 16
Retention Trigger Event............................................ 17
Scheduled Debt Service............................................. 17
Secured Parties.................................................... 17
Securities Act..................................................... 17
Security Register.................................................. 17
SENs............................................................... 17
SENs Basic Collateral Percentage................................... 17
SENs Collateral ................................................... 17
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SENs Collateral Account............................................ 17
SENs Reserve Account............................................... 17
SENs Secured Obligations........................................... 17
SENs Total Collateral Percentage................................... 18
Series............................................................. 18
Six Month Debt Reserve Amount...................................... 18
Six Month Debt Service Coverage Ratio.............................. 18
Six Month Ratio ................................................... 18
Special Record Date................................................ 18
Standard & Poor's.................................................. 18
Stated Maturity ................................................... 18
Subsidiary......................................................... 18
Successor Corporation.............................................. 19
Supplemental Indenture............................................. 19
Taxes.............................................................. 19
Three Month Debt Service Coverage Ratio............................ 19
Three Month Ratio.................................................. 19
Toquepala Mine..................................................... 19
Transaction Documents.............................................. 19
Transfer Agent..................................................... 19
Trigger Event...................................................... 19
Trust Indenture Act" or "TIA....................................... 19
Trustee............................................................ 19
U.S. GAAP.......................................................... ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇...................................................... ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ person............................................... 20
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS........................... 20
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE......................... 21
SECTION 104. ACTS OF HOLDERS................................................ 21
SECTION 105. NOTICES, ETC. TO TRUSTEE, REGISTRAR, PRINCIPAL PAYING
AGENT, COMPANY AND GUARANTOR.............................. 23
SECTION 106. NOTICE TO HOLDERS; WAIVER...................................... 23
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS....................... 24
SECTION 108. SUCCESSORS AND ASSIGNS......................................... 24
SECTION 109. SEPARABILITY CLAUSE............................................ 24
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SECTION 110. BENEFITS OF INDENTURE.......................................... 24
SECTION 111. CONFLICT WITH TRUST INDENTURE ACT.............................. 24
SECTION 112. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE
OF PROCESS................................................ 25
SECTION 113. COUNTERPARTS................................................... 26
SECTION 114. LEGAL HOLIDAYS................................................. 26
SECTION 115. INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF
COMPANY AND GUARANTOR EXEMPT FROM INDIVIDUAL LIABILITY.... 26
SECTION 116. CURRENCY....................................................... 26
ARTICLE TWO
FORM OF SENS AND GUARANTEES..................... 27
SECTION 201. FORMS GENERALLY................................................ 27
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION................ 27
SECTION 203. FORM OF GUARANTEES............................................. 28
SECTION 204. SENS ISSUABLE IN GLOBAL FORM................................... 28
ARTICLE THREE
THE SENS............................... 29
SECTION 301. AMOUNT; ISSUABLE IN SERIES..................................... 29
SECTION 302. DENOMINATIONS.................................................. 32
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING................. 32
SECTION 304. TEMPORARY SECURITIES........................................... 34
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE............ 34
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SENS..................... 35
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SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED................. 37
SECTION 308. PERSONS DEEMED OWNERS.......................................... 39
SECTION 309. CANCELLATION................................................... 39
SECTION 310. COMPUTATION OF INTEREST........................................ 40
SECTION 311. CURRENCY IN RESPECT OF SENS.................................... 40
SECTION 312. RECOURSE TO TRUST ESTATE....................................... 40
ARTICLE FOUR
ACCOUNTS; PAYMENTS; APPLICATION OF FUNDS............... 40
SECTION 401. COLLECTION ACCOUNT............................................. 40
SECTION 402. SENS COLLATERAL ACCOUNTS; PAYMENTS; APPLICATION
OF FUNDS.................................................. 40
SECTION 403. SENS RESERVE ACCOUNT........................................... 43
SECTION 404. STATEMENTS; INVESTMENT OF FUNDS................................ 44
SECTION 405. EXCLUDED EXPORT RECEIVABLES.................................... 45
ARTICLE FIVE
SATISFACTION AND DISCHARGE....................... 45
SECTION 501. SATISFACTION AND DISCHARGE OF INDENTURE........................ 45
SECTION 502. APPLICATION OF TRUST MONEY..................................... 46
ARTICLE SIX
TRIGGER EVENTS; ACCELERATED AMORTIZATION EVENTS;
EVENTS OF DEFAULT; REMEDIES.................... 47
SECTION 601. TRIGGER EVENTS................................................. 47
SECTION 602. ACCELERATED AMORTIZATION EVENT; APPLICATION OF FUNDS........... 50
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SECTION 603. EVENTS OF DEFAULT.............................................. 51
SECTION 604. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT............. 53
SECTION 605. COLLECTION OF DEBT AND SUITS FOR ENFORCEMENT BY
TRUSTEE................................................... 55
SECTION 606. TRUSTEE MAY FILE PROOFS OF CLAIM............................... 56
SECTION 607. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SENS...................................................... 57
SECTION 608. APPLICATION OF MONEY COLLECTED................................. 57
SECTION 609. LIMITATION ON SUITS............................................ 57
SECTION 610. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST...................................... 58
SECTION 611. RESTORATION OF RIGHTS AND REMEDIES............................. 58
SECTION 612. RIGHTS AND REMEDIES CUMULATIVE................................. 58
SECTION 613. DELAY OR OMISSION NOT WAIVER................................... 59
SECTION 614. CONTROL BY HOLDERS............................................. 59
SECTION 615. WAIVER OF PAST DEFAULTS........................................ 59
SECTION 616. WAIVER OF STAY OR EXTENSION LAWS............................... 59
SECTION 617. TRUSTEE TO GIVE NOTICE OF TRIGGER EVENT, ACCELERATED
AMORTIZATION EVENT OR DEFAULT, BUT MAY WITHHOLD IN CERTAIN
CIRCUMSTANCES............................................. 60
SECTION 618. UNDERTAKING FOR COSTS.......................................... 60
ARTICLE SEVEN
THE TRUSTEE............................. 61
SECTION 701. DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING
DEFAULT; PRIOR TO DEFAULT................................. 61
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SECTION 702. CERTAIN RIGHTS OF TRUSTEE...................................... 62
SECTION 703. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SENS...................................................... 63
SECTION 704. TRUSTEE MAY HOLD SENS.......................................... 63
SECTION 705. MONEY HELD IN TRUST............................................ 63
SECTION 706. COMPENSATION AND INDEMNIFICATION OF TRUSTEE, PAYING
AGENT AND REGISTRAR AND ITS PRIOR CLAIM................... 64
SECTION 707. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY........................ 64
SECTION 708. QUALIFICATION OF TRUSTEE; CONFLICTING INTERESTS................ 64
SECTION 709. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
TRUSTEE OR CO-TRUSTEE..................................... 65
SECTION 710. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR......................... 67
SECTION 711. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.................................................. 68
SECTION 712. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.............. 69
SECTION 713. APPOINTMENT OF AUTHENTICATING AGENT............................ 69
SECTION 714. REGISTRAR AND PAYING AGENTS.................................... 71
ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE,
COMPANY AND GUARANTOR........................ 71
SECTION 801. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS................... 71
SECTION 802. REPORTS BY TRUSTEE............................................. 71
SECTION 803. REPORTS........................................................ 71
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ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER............ 73
SECTION 901. COMPANY AND GUARANTOR MAY CONSOLIDATE, ETC., ONLY
ON CERTAIN TERMS.......................................... 73
ARTICLE TEN
SUPPLEMENTAL INDENTURES....................... 74
SECTION 1001.SUPPLEMENTAL INDENTURES WITHOUT VOTE OF HOLDERS................ 74
SECTION 1002.SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS................ 75
SECTION 1003.EXECUTION OF SUPPLEMENTAL INDENTURES........................... 76
SECTION 1004.EFFECT OF SUPPLEMENTAL INDENTURES.............................. 76
SECTION 1005.CONFORMITY WITH TIA............................................ 76
SECTION 1006.REFERENCE IN SENS TO SUPPLEMENTAL INDENTURES................... 77
SECTION 1007.NOTICE OF SUPPLEMENTAL INDENTURES.............................. 77
ARTICLE ELEVEN
REPRESENTATIONS AND WARRANTIES.................... 77
SECTION 1101.CORPORATE ORGANIZATION AND EXISTENCE........................... 77
SECTION 1102.CORPORATE AND GOVERNMENTAL AUTHORIZATION;
NO CONTRAVENTION.......................................... 78
SECTION ▇▇▇▇.▇▇ CONSENTS.................................................... 78
SECTION 1104.BINDING EFFECT................................................. 78
SECTION 1105.[INTENTIONALLY OMITTED]........................................ 78
SECTION ▇▇▇▇.▇▇▇▇▇▇▇▇▇ STATEMENTS........................................... 78
SECTION 1107.PAYMENT OF TAXES............................................... 78
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SECTION 1108.ENVIRONMENTAL MATTERS.......................................... 79
SECTION 1109.OWNERSHIP AND LEASES OF PRINCIPAL PROPERTIES................... 79
ARTICLE TWELVE
COVENANTS............................... 79
SECTION 1201.PAYMENT OF PRINCIPAL AND INTEREST.............................. 79
SECTION 1202.MAINTENANCE OF OFFICE OR AGENCY................................ 79
SECTION ▇▇▇▇.▇▇▇▇▇ FOR SENS PAYMENTS TO BE HELD IN TRUST.................... 80
SECTION 1204.CONSOLIDATED TANGIBLE NET WORTH................................ 80
SECTION 1205.CAPITALIZATION RATIO........................................... 81
SECTION 1206.COMPLIANCE WITH LAWS AND PAMA.................................. 81
SECTION 1207.CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE............... 81
SECTION 1208.AGGREGATE PROGRAM OUTSTANDINGS AND ADDITIONAL
SECURED OBLIGATIONS; TOTAL COLLATERAL PERCENTAGES......... 81
SECTION 1209.MAINTENANCE OF PROPERTY; INSURANCE............................. 81
SECTION 1210.LIMITATION ON CERTAIN SALES OF ASSETS.......................... 82
SECTION 1211.LIENS.......................................................... 82
SECTION 1212.MAINTENANCE OF BOOKS AND RECORDS............................... 82
SECTION 1213.INSPECTION OF PROPERTY; BOOKS AND RECORDS;
DISCUSSIONS............................................... 82
SECTION 1214.EXPORT SALES................................................... 83
SECTION 1215.DESIGNATION AND TERMINATION OF DESIGNATION OF ADDITIONAL
PERCENTAGES UNDER THE COLLATERAL TRUST AGREEMENT.......... 83
SECTION 1216.LIMITATION ON ADDITIONAL DEBT SECURED BY EXPORT
RECEIVABLES............................................... 84
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SECTION 1217.ADDITIONAL AMOUNTS............................................. 84
SECTION 1218.PRESERVATION OF SECURITY INTEREST.............................. 86
SECTION 1219.FURTHER ASSURANCES............................................. 86
ARTICLE THIRTEEN
REDEMPTION OF SENS.......................... 87
SECTION 1301.APPLICABILITY OF ARTICLE....................................... 87
SECTION 1302.ELECTION TO REDEEM; NOTICE TO TRUSTEE.......................... 87
SECTION 1303.SELECTION BY TRUSTEE OF SENS TO BE REDEEMED.................... 88
SECTION 1304.NOTICE OF REDEMPTION........................................... 88
SECTION 1305.DEPOSIT OF REDEMPTION PRICE.................................... 89
SECTION 1306.SENS PAYABLE ON REDEMPTION DATE................................ 89
SECTION 1307.SENS REDEEMED IN PART.......................................... 89
SECTION 1308.REDEMPTION FOR TAX REASONS..................................... 89
ARTICLE FOURTEEN
[INTENTIONALLY OMITTED]....................... 91
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE................ 91
SECTION ▇▇▇▇.▇▇▇▇▇▇▇'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE................................................ 91
SECTION 1502.DEFEASANCE AND DISCHARGE....................................... 91
SECTION 1503.COVENANT DEFEASANCE............................................ 92
SECTION 1504.CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE................ 92
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SECTION 1505.DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS............. 94
SECTION 1506.REINSTATEMENT.................................................. 94
ARTICLE SIXTEEN
GUARANTEES.............................. 95
SECTION 1601.GUARANTEES..................................................... 95
SECTION 1602.EXECUTION AND DELIVERY OF THE GUARANTEES....................... 96
ARTICLE SEVENTEEN
MEETINGS OF HOLDERS OF SENS..................... 96
SECTION 1701.PURPOSES FOR WHICH MEETINGS MAY BE CALLED...................... 96
SECTION ▇▇▇▇.▇▇▇▇ NOTICE AND PLACE OF MEETINGS.............................. 97
SECTION 1703.PERSONS ENTITLED TO VOTE AT MEETINGS........................... 97
SECTION 1704.QUORUM; ACTION................................................. 97
SECTION 1705.DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS................................... 98
SECTION 1706.COUNTING VOTES AND RECORDING ACTION OF MEETINGS................ 99
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THIS INDENTURE, dated as of May 30, 1997 among Southern Peru Limited, a
corporation organized under the laws of Delaware (the "Company"), Southern Peru
Copper Corporation, a corporation organized under the laws of Delaware, as
Guarantor ("the Guarantor") and Citibank, N.A., a national banking association,
as trustee (the "Trustee"), registrar ("Registrar") and principal paying agent
(the "Principal Paying Agent").
RECITALS
WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance of up to $750 million at any one time
outstanding of its Secured Export Notes (the "SENs"), the proceeds of which will
be used to fund an expansion and modernization of its operations at its Cuajone
Mine and Ilo Smelter and for general corporate purposes and to make deposits in
the SENS Reserve Accounts to the extent required to cause the amounts on deposit
therein to be equal to the Required Balance;
WHEREAS, the Trustee has accepted the trusts created by this Indenture
and in evidence thereof has joined in the execution hereof; and
WHEREAS, all things necessary to make the SENs when issued on behalf of
the Company and authenticated by the Trustee as provided in this Indenture, the
legal, valid and binding obligations of the Company and to provide a security
interest in the Collateral (as hereinafter defined), have been done and
performed; and
WHEREAS, the Guarantor has duly authorized the execution and delivery
of this Indenture to provide for the Guarantees by it with respect to the SENs
as set forth in this Indenture; and
WHEREAS, all things necessary to make the Guarantees, when duly
authorized and executed by the Guarantor and delivered hereunder, the valid
obligations of the Guarantor, and to make this Indenture a valid agreement of
the Guarantor, in accordance with its terms, have been done and performed.
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in consideration of the
premises, of the acceptance by the Trustee of the trusts hereby created, and of
the purchase and acceptance of the SENs by the Holders (as hereinafter defined),
the receipt and sufficiency of which is hereby acknowledged, for the equal and
proportionate benefit of all Holders of the SENs or of any series thereof, as
follows:
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. For all purposes of this Indenture
and of any indenture supplemental hereto, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to
them therein; and
(3) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
(4) As used herein and in any SEN, and any certificate or
other document made or delivered pursuant hereto, accounting terms
relating to the Company and the Guarantor not defined in Section 101
and accounting terms partly defined in Section 101, to the extent not
defined, shall have the respective meanings given to them under U.S.
GAAP.
(5) Unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture.
"Accelerated Amortization Event" shall have the meaning set
forth in Section 602.
"Accountant" means a Person engaged in the practice of
accounting who (except when this Indenture provides that an Accountant must be
independent) may be employed by or affiliated with the Company or an Affiliate.
"Acknowledgments" means written acknowledgments from customers
under annual Export Contracts and Export Contracts with a term greater than one
year, substantially in the form of Exhibit 3.01 to the Collateral Trust
Agreement, pursuant to which such customers, among other things, acknowledge the
liens created pursuant to the terms of the Collateral Trust Agreement and agree
to pay any amounts owing for Copper delivered under such contracts to the
Collateral Trustee for deposit in the Collection Account.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
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"Additional Amounts" shall have the meaning set forth in
Section 1217.
"Additional Percentage", means for any Series of SENs, for any
date, such additional percentage interest in the Export Receivables and in the
Collections therefrom to be transferred from the Collection Account to the SENs
Collateral Account for such Series, as may be designated by the Company in
writing to the Collateral Trustee and the Trustee pursuant to Section 2.04 of
the Collateral Trust Agreement.
"Additional Secured Obligations" shall have the meaning set
forth in the Collateral Trust Agreement.
"Adequate Substitute Collateral" shall have the meaning set
forth in Section 601(a)(viii).
"Affiliate" of any specified Person means any other Person
(other than a Subsidiary) directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified Person. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Asset Disposition" shall have the meaning set forth in
Section 1210.
"Attributable Principal Amount" shall have the meaning set
forth in the Collateral Trust Agreement.
"Authenticating Agent" means any Person authorized by the
Trustee to act on behalf of the Trustee to authenticate SENs.
"Authorized Newspaper" means a newspaper, in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Where
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different newspapers in
the same city meeting the foregoing requirements and in each case on any
Business Day.
"Basic Collateral Percentages" shall have the meaning set
forth in the Collateral Trust Agreement.
"Blocked Collections" shall have the meaning set forth in
Section 601(b).
"Blocked Percentage" means on any date of determination, with
respect to any Series of SENs (except as may be otherwise set forth in the
Supplemental Indenture with respect to such Series of SENs), (a) if the
Outstanding Principal Amount is less than $300
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million, 100%; (b) if the Outstanding Principal Amount is at least US$300
million but not in excess of US$500 million, 75%; and (c) if the Outstanding
Principal Amount is more than US$500 million, 50%.
"Blocking Event" means any of the events specified in Section
601(a) which results in the retention of Collections in any SENS Collateral
Account
"Board of Directors", when used with reference to the Company,
means the board of directors of the Company, and when used with reference to the
Guarantor, means the board of directors of the Guarantor.
"Board Resolution", when used with reference to the Company,
means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors of
the Company and to be in full force and effect on the date of such
certification, and delivered to the Trustee, and when used with reference to the
Guarantor, means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Guarantor to have been duly adopted by the Board of
Directors of the Guarantor and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the SENs,
means, unless otherwise specified with respect to any SENs pursuant to Section
301, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment or other location are
authorized or obligated by law or executive order to close.
"Capital Stock" means any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person other than a
corporation and any and all warrants or options to purchase any of the
foregoing.
"Capitalization Ratio" means, at any date of determination,
the ratio of (i) Consolidated Net Debt at such date of determination to (ii) the
sum of (a) Consolidated Net Debt at such date of determination plus (b)
Consolidated Net Worth at such date of determination plus (c) Minority Interests
at such date of determination.
"Collateral" shall have the meaning set forth in the
Collateral Trust Agreement.
"Collateral Account Agreement" means the Collateral Account
and Security Agreement dated as of March 31, 1997 between the Company and
Deutsche Bank AG, New York Branch, as security and collateral agent for the
several banks and financial institutions party to the Credit Facility.
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"Collateral Trust Agreement" means the Amended and Restated
Collateral Trust and Security Agreement, dated as of May 30, 1997, between the
Company and Deutsche Bank AG, New York Branch, as Collateral Trustee, as the
same may be amended, supplemented or otherwise modified from time to time.
"Collateral Trustee" means Deutsche Bank AG, New York Branch,
as Collateral Trustee under the Collateral Trust Agreement.
"Collection Account" shall have the meaning set forth in
Section 3.02 of the Collateral Trust Agreement.
"Collections" shall have the meaning set forth in the
Collateral Trust Agreement.
"Commission" means the U.S. Securities and Exchange
Commission, as from time to time constituted, created under the U.S. Securities
Exchange Act of 1934, or, if at any time after the execution of this Indenture
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Notice" means the giving of a written notice by (i)
the Trustee to the Company and the Guarantor or (ii) by the Holders of at least
10% of the aggregate principal amount of Outstanding SENs of a Series to the
Trustee, the Company and the Guarantor, by registered or certified mail
specifying a default or breach occurring hereunder and requiring it to be
remedied and stating that such notice is a "Notice of Default" under this
Indenture.
"Company Request" or "Company Order" and "Guarantor Request"
or "Guarantor Order" means a written request or order signed in the name of the
Company or the Guarantor, as the case may be, by its President or a Vice
President, the Treasurer, the Comptroller or an Assistant Treasurer and
delivered to the Trustee.
"Concessions" means the material mining and processing
concessions granted to the Company by any Governmental Authority of the Republic
of Peru.
"Consolidated Net Debt" means, at any date of determination,
(a) all Debt of the Guarantor and its Subsidiaries at such date of determination
minus (b) the aggregate amount of cash on deposit in funded escrow accounts at
such date of determination in which a Lien has been granted to secure the
repayment of any such Debt.
"Consolidated Net Worth" means, at any date of determination,
all items which would, in accordance with U.S. GAAP, be included under
shareholders' equity on a
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consolidated balance sheet of the Guarantor and its Subsidiaries at such date of
determination adjusted to exclude the effects of (i) any non-cash, nonrecurring
charges, (ii) any non-cash extraordinary charges and (iii) any other non-cash
charges required as a result of a change after March 31, 1997 of accounting
principles or in the application thereof under U.S. GAAP in the year of such
charge or in the year of adoption of any such change and without giving effect
to the future effects of such charge or change. In the case of clauses (i) and
(ii), "non-cash" refers to the portion of the charge which, at the time of the
charge, will not be required to be paid prior to the final Maturity of any
outstanding SEN.
"Consolidated Tangible Net Worth" means, at any date of
determination, Consolidated Net Worth at such date of determination after
deducting therefrom the sum of deferred charges, goodwill, trademarks and other
intangibles of the Guarantor and its Subsidiaries reflected on the consolidated
balance sheet of the Guarantor at such date of determination.
"Copper" means anode copper, blister copper, cathodes, copper
concentrates, electrolytic cathodes, and electrowon cathodes.
"Copper Subsidiary" shall have the meaning set forth in
Section 1219(b) hereof.
"Corporate Trust Office" means the corporate trust office of
the Trustee, at which at any particular time its corporate trust business shall
be principally administered, which office on the date of execution of this
Indenture is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
except that with respect to presentation of SENs for payment or for registration
of transfer or exchange, such term shall mean the office or agency of the
Trustee at which, at any particular time, its corporate agency business shall be
conducted.
"Credit Facility" means the $600,000,000 Credit and Guarantee
Agreement dated as of March 31, 1997, among the Guarantor, the Company, the
several banks and other financial institutions from time to time parties
thereto, ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Administrative Agent, The
Chase Manhattan Bank, as Documentation Agent, Citicorp Securities, Inc., as
Syndication Agent, and Deutsche Bank AG, New York Branch, as Collateral Agent,
as the same may be amended, supplemented or otherwise modified from time to
time.
"Credit Facility Collateral Account" shall have the meaning
set forth in the Collateral Account Agreement.
"Credit Facility Total Collateral Percentage" shall have the
meaning set forth in the Collateral Trust Agreement.
"Cuajone Mine" means the copper mine, concentrator and mill
(including without limitation the mining and other concessions relating thereto)
located in Cuajone, ▇▇▇▇.
▇▇
▇
"Debt" means, of any Person at any date, without duplication,
(a) all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than current trade liabilities
incurred in the ordinary course of business and payable in accordance with
customary practices), (b) all obligations of such Person under Financing Leases,
(c) all guarantees or endorsements (other than endorsements for collection or
deposit in the ordinary course of business) of such Person of Debt of others and
(d) all liabilities secured by any Lien on any property owned by such Person
even though such Person has not assumed or otherwise become liable for the
payment thereof.
"Debt Service Retention Event" means, at any date of
determination, the Six Month Ratio for the most recently ended six month period
is less than 3.0 to 1.0.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Designated Total Collateral Percentages" shall have the
meaning set forth in the Collateral Trust Agreement.
"Dollar", "US$" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"Duff & ▇▇▇▇▇▇" means Duff & ▇▇▇▇▇▇ 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 of 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, depository 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 & ▇▇▇▇▇▇, if rated by Duff & ▇▇▇▇▇▇;
(3) unsecured debt securities bearing interest or sold at a
discount issued by (i) a corporation (other than an Affiliate
of the Borrower) 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
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S&P and at least P-1 by Moody's and at least D-1 from Duff &
▇▇▇▇▇▇, if rated by Duff & ▇▇▇▇▇▇;
(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 & ▇▇▇▇▇▇, if
rated by Duff & ▇▇▇▇▇▇;
(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 & Poor's and P-1 from Moody's and at least D-1 from
Duff & ▇▇▇▇▇▇, if rated by Duff & ▇▇▇▇▇▇; 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 & ▇▇▇▇▇▇, if rated by
Duff & ▇▇▇▇▇▇; and
(6) 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 fund has a
credit rating of at least AAAm from Standard & Poor's and Aaa
from Moody's and at least the equivalent rating from Duff &
▇▇▇▇▇▇, if rated by Duff & ▇▇▇▇▇▇; provided that this category
(6) of investment shall have been accepted by each Rating
Agency.
"Environmental Laws": (a) the PAMA (or any successor thereto)
so long as it is in effect or, (b) if the PAMA (or any such successor thereto)
is not in effect, any and all Peruvian central, regional or municipal laws,
rules, orders, regulations, statutes, ordinances, codes, decrees, requirements
of any Governmental Authority or other Requirements of Law regulating, relating
to or imposing liability or standards of conduct concerning protection of human
health or the environment, as now or at any time hereafter in effect.
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 603.
"Excess Collections" shall have the meaning set forth in
Section 402.
"Exchange Act" means the U.S. Securities Exchange Act of 1934,
as from time to time amended.
"Exchange Offer" means, with respect to any Series of SENs
originally issued pursuant to Rule 144A and/or Regulation S under the Securities
Act, any offer by the
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Company to Holders of such SENs to exchange such SENs for SENs registered under
the Securities Act, with substantially identical terms to such originally issued
SENs.
"Excess Percentage" shall have the meaning set forth in the
Collateral Trust Agreement.
"Excluded Export Receivables" shall have the meaning set forth
in the Collateral Trust Agreement.
"Export Contracts" shall have the meaning set forth in the
Collateral Trust Agreement.
"Export Receivables" shall have the meaning set forth in the
Collateral Trust Agreement.
"Financing Lease" means any lease of property, real or
personal, the obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the lessee.
"Government Obligations" means securities that are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged, or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such Government Obligation or a specific payment of interest on or
principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Global Security" means one or more global securities
representing a Series of the SENs.
"Governmental Agency" means any public legal entity or public
agency of Peru or the United States, whether created by federal, state,
provincial or local government or any other legal entity now existing or
hereafter created, or now or hereafter owned or controlled, directly or
indirectly, by any public legal entity or public agency of Peru or the United
States.
"Governmental Authority" means any nation or government, any
state, regional or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
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"Guarantor" means the Person named as the Guarantor in the
first paragraph of this Indenture until a Successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"Guarantees" shall have the meaning set forth in Section 1602.
"Holder" means the Person in whose name a SEN (including the
Guarantee endorsed thereon) is registered in the Security Register.
"Ilo Refinery" means the copper refinery located in Ilo, Peru,
including, without limitation, the essential buildings, structures and equipment
and the processing and other concessions relating thereto.
"Ilo Smelter" means the copper smelter located in Ilo, Peru,
including, without limitation, the essential buildings, structures and equipment
and the processing and other concessions relating thereto.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular Series of SENs established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more Series of SENs for which such Person is Trustee,
this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
particular Series of SENs for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other Series of SENs for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"Initial Deposit" with respect to the SENs of any Series,
shall have the meaning set forth in the Supplemental Indenture with respect to
the SENs of such Series.
"Issue Date" with respect to the SENs of any Series, shall
have the meaning set forth in the Supplemental Indenture with respect to the
SENs of such Series.
"Lien" means any mortgage, pledge, hypothecation, assignment,
lien (statutory or other), charge or other security interest of any kind.
"Loans": means any loans made pursuant to the Credit Facility.
"Make-Whole Premium" means, with respect to any Series of
SENs, except as may be otherwise provided in the Supplemental Indenture with
respect to such Series of
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SENs, the amount, determined as of the Business Day prior to the Applicable Date
(as defined below), in respect of a Series of SENs (or the portion thereof) to
be redeemed or prepaid, as the case may be, equal to the amount (but not less
than zero) obtained by subtracting (a) the sum of the unpaid principal amount of
such SENs (or the portion thereof) being redeemed or prepaid and the amount of
interest thereon accrued to such Redemption Date, from (b) the sum of the
Current Values of all amounts of principal and interest on such SENs (or the
portion thereof) being redeemed or prepaid that would otherwise have become due
after the date of such determination if such SENs were not being redeemed (each
such amount of principal or interest being referred to herein as an "Amount
Payable"). The "Current Value" of any Amount Payable means such Amount Payable
discounted (on a monthly basis) to its present value on the date of
determination, in accordance with the following formula:
Current Value = Amount Payable
--------------
(1 + d/12)n
where "d" is in the sum of (i) 75 basis points plus (ii) the Treasury Yield per
annum expressed as a decimal and "n" is an exponent (which need not be an
integer) equal to the number of monthly periods and portions thereof (any such
portion of a period to be determined by dividing the number of days in such
portion of such period by the total number of days in such period, both computed
on the basis of twelve 30-day months in a 360-day year) between the date of such
determination and the due date of the Amount Payable. The "Treasury Yield" shall
be determined by reference to the yields for U.S. Treasury securities as
indicated (currently on page "500" thereof) on the Telerate Screen for actively
traded U.S. Treasury securities at approximately 10:00 a.m. (New York City time)
on the Business Day next preceding such Applicable Date or, if such yields shall
not be reported as of such time or the yields reported as of such time shall not
be ascertainable, by reference to the most recent Federal Reserve Statistical
Release H.15 (519) which has become publicly available at least two Business
Days prior to such Applicable Date (or, if such Statistical Release is no longer
published, any publicly available source of similar market data acceptable to
the Trustee), and shall be the most recent weekly average yield on actively
traded U.S. Treasury securities adjusted to a constant maturity equal to the
then remaining weighted average life of the outstanding principal amount of such
SENs (the "Remaining Life"), computed by dividing (A) the sum of all remaining
principal payments on such SENs into (B) the total of the products obtained by
multiplying (1) the amount of each remaining principal payment on such SENs by
(2) the number of years (calculated to the nearest one-twelfth) which will
elapse between the date as of which such computation is made and the due date of
each remaining principal payment on such SENs. If the Remaining Life is not
equal to the constant maturity of a U.S. Treasury security for which a weekly
average yield is given, the Treasury Yield shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of (x) the actively traded U.S. Treasury security with the
average life closest to and greater than the Remaining Life and (y) the actively
traded U.S. Treasury security with the average life closest to and less than the
Remaining Life, except that if the Remaining Life is less than one year, the
weekly average yield on actively traded U.S. Treasury securities adjusted to a
constant maturity of one year shall be used. The Treasury Yield shall be
computed to the
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fifth decimal place (one-thousandth of a percentage point) and then rounded to
the fourth decimal place (one hundredth of a percentage point). "Applicable
Date" means (i) with respect to any redemption of SENs, the Business Day
preceding the day on which the notice of redemption is given pursuant to Section
1304 and (ii) with respect to any prepayment resulting from an Accelerated
Amortization Event, the Business Day preceding the date of such prepayment.
"Mandatory Prepayment Event": any event (other than an event
of default or similar event) which requires the Company to make any mandatory
prepayment (including, without limitation, as a result of an accelerated
amortization event) in respect of the principal of any Loans or Additional
Secured Obligations (other than regularly scheduled payments of principal) or to
make any mandatory redemption, defeasance or purchase of any Loans or Additional
Secured Obligations. For the avoidance of doubt, the term "defeasance" shall not
include the retention of Collections in a SENs Collateral Account as a result of
a Blocking Event.
"Material Adverse Effect" means, when used in connection with
any Series of SENs, a material adverse effect on (a) the ability of the Company
or the Guarantor, as the case may be, to meet its obligations to pay interest
on, principal of, or any premium on, such Series of SENs or any other payment
obligations under the Indenture or (b) the validity or enforceability of this
Indenture or any of the other Transaction Documents.
"Material Subsidiary" means any Subsidiary with respect to
which the occurrence of any of the events described in Sections 603(vi) or (vii)
would result in a Material Adverse Effect.
"Maturity", when used with respect to any SEN, means the date
on which the principal of such SEN or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
acceleration, notice of redemption or otherwise.
"Minority Interests" means, at any date of determination, all
amounts reflected in respect of minority interests, in accordance with U.S.
GAAP, on the consolidated balance sheet of the Guarantor and its Subsidiaries at
such date of determination.
"Moody's" means ▇▇▇▇▇'▇ Investors Services, Inc.
"Notices" means written notices from the Company to its export
customers, substantially in the form attached to the Collateral Trust Agreement.
"Officers' Certificate", when used with respect to the
Company, means a certificate signed by (i) the President, any Vice President,
the Secretary, the Treasurer or the Comptroller, and by (ii) an Assistant
Treasurer or an Assistant Secretary of the Company, and delivered to the Trustee
and when used with respect to the Guarantor, means a certificate signed by (iii)
the President, any Vice President, the Treasurer or the Comptroller of the
Guarantor, and by (iv) the Comptroller, an Assistant Treasurer, the Secretary or
an Assistant
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Secretary of the Guarantor, and delivered to the Trustee, provided, however,
that in either case, any two officers identified in clause (i) with respect to
the Company or clause (iii) with respect to the Guarantor shall satisfy the
foregoing requirements.
"Opinion of Counsel" means a written opinion of counsel
qualified in the appropriate jurisdiction who, except as otherwise expressly
required hereunder, may be an employee of or counsel for the Company.
"Outstanding", when used with respect to a Series of SENs,
means, except as otherwise required by TIA, as of the date of determination, all
SENs theretofore authenticated and delivered under this Indenture, except:
(i) SENs theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) SENs, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company or the
Guarantor) in trust or set aside and segregated in trust by the Company
or the Guarantor (if the Company or the Guarantor, as the case may be,
shall act as its own Paying Agent) for the Holders of such SENs;
provided that, if such SENs are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) SENs, except to the extent provided in Sections 1502 and
1503, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fifteen; and
(iv) SENs which have been paid pursuant to Section 307 or in
exchange for or in lieu of which other SENs have been authenticated and
delivered pursuant to this Indenture, other than any such SENs in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such SENs are held by a bona fide purchaser in
whose hands such SENs are valid obligations of the Company;
provided, however, that for purposes of Section 301 hereof and for purposes of
determining whether the Holders of the requisite principal amount of the
Outstanding SENs of any Series have given any request, demand, authorization,
direction, notice, consent or waiver or taken any other action hereunder or are
present at a meeting of Holders for quorum purposes, and for the purpose of
making the calculations required by TIA Section 313, SENs owned by the Company,
the Guarantor or any other obligor upon the SENs or any Affiliate of the
Company, the Guarantor or of such other obligor shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee shall be
protected in making such calculation or in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only SENs which the
Trustee knows to be so owned shall be so disregarded. SENs so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so
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to act with respect to such SENs and that the pledgee is not the Company, the
Guarantor or any other obligor upon the SENs or any Affiliate of the Company or
such other obligor.
"Outstanding Principal Amount" shall have the meaning set
forth in the Collateral Trust Agreement.
"PAMA" means the Programa de Adecuacion y Manejo Ambiental
(Environmental Adequacy and Management Program), as defined in Supreme Decree
No. 016-93-EM, as amended or replaced from time to time.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or Additional Amounts, if any, or interest on or premium,
if any, on any SENs on behalf of the Company.
"Payment Date", with respect to any SEN of any Series, shall
have the meaning set forth in the Supplemental Indenture with respect to the
SENs of such Series.
"Permitted Liens" means (i) Liens existing on the date hereof;
(ii) Liens securing loans from or guaranteed or insured by export credit,
governmental, bilateral or multilateral agencies; (iii) Liens for taxes,
assessments, governmental charges, other governmental obligations or levies or
statutory Liens for sums not yet due or being contested in good faith; (iv)
Liens to secure the purchase price of property or assets acquired by the
Guarantor or the Company or any of their subsidiaries after the date hereof, or
to secure Debt incurred solely to finance the acquisition of property or assets
acquired by the Guarantor or the Company or any of their subsidiaries after the
date hereof; provided, however, that such Lien is limited to the property or
assets financed, secures Debt in an amount not in excess of the purchase price
of such property or assets, and is created within 180 days of the acquisition of
such property or assets; (v) any Lien on any property or assets of an entity
that becomes a Subsidiary of the Guarantor or the Company, or on any property or
assets acquired by the Guarantor, the Company or any of their Subsidiaries that
exists prior to such entity becoming a Subsidiary or such acquisition and that
was not created in contemplation thereof; (vi) any Lien created to secure Debt
incurred to finance the cost (including capitalized interest) of construction,
acquisition, improvement or development of specific property or assets; provided
that such Lien is restricted solely to the specific property or assets
constructed or acquired or the specific improvement or development and secures
Debt in an amount not in excess of the financed cost of such property or assets;
(vii) replacements, renewals or extensions of the Liens permitted pursuant to
clauses (i) through (vi) above, so long as (A) the principal amount is not
increased over the original principal amount and (B) such Liens do not extend to
any additional property or assets; (viii) any Lien incurred in the ordinary
course of business in connection with social security, workers' compensation,
unemployment insurance and similar types of laws or regulations; (ix) any
statutory Lien of a landlord, carrier, warehouseman, mechanic or materialman
incurred in the ordinary course of business for a sum not yet due or the payment
of which is being contested in good faith; (x) Liens to secure the performance
of bids, trade contracts, leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a similar nature, in each case
incurred in the ordinary course of business;
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(xi) other Liens securing Debt that in the aggregate at any time does not exceed
an amount equal to 10% of (A) the total assets of the Guarantor as reported on
the most recent quarterly financial statements of the Guarantor minus (B) the
aggregate amount of Debt secured by Liens permitted under clauses (ii) and (vi)
above; and (xii) any Lien securing a judgment, unless (A) the judgment it
secures shall not have been discharged within 60 days after the entry thereof,
or (B) execution of the judgment it secures shall not have been discharged
within 60 days after the expiration of any stay thereof pending appeal.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
Governmental Authority.
"Peru" means the Republic of Peru.
"Peruvian Branch": the Peruvian Branch of the Company.
"Peruvian Government" means the central government of Peru.
"Place of Payment" means, when used with respect to the SENs
of or within any Series, the place or places where the principal of (and
premium, if any, on) and interest on such SENs are payable as specified or
contemplated by Sections 301 and 1202.
"Potential Trigger Event" means any event which is, or after
notice or passage of time or both, would be, a Trigger Event other than an event
under Section 601(a)(x) which occurs prior to the 180th day after the date
hereof.
"Predecessor SEN" of any particular SEN means every previous
SEN evidencing all or a portion of the same debt as that evidenced by such
particular SEN.
"Principal Paying Agent" means the Person named as the
"Principal Paying Agent" in the first paragraph of this Indenture, and any
successor Principal Paying Agent.
"Principal Properties" means, the collective reference to the
Toquepala Mine, the Cuajone Mine, the Ilo Smelter and the Ilo Refinery.
"Proceeds" shall have the meaning set forth in the Collateral
Trust Agreement.
"Program Amount" means US$750,000,000, as such amount may be
adjusted from time to time in accordance with the provisions of Section 2.02(c)
of the Collateral Trust Agreement and Section 1214 hereof.
"Property" means any asset, revenue or any other property,
whether tangible or intangible, real or personal, including, without limitation,
any right to receive income.
"Qualified Letter of Credit" means an irrevocable letter of
credit (which expires no later than one year after the date of issuance or any
annual anniversary thereof
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pursuant to an annual renewal) issued in favor of the Trustee by a depository
institution or trust company, which has, at the time of issuance or the
effective date of such annual renewal, a credit rating with respect to its
short-term U.S. dollar unsecured obligations of at least "A-1" from Standard &
Poor's and P-1 from ▇▇▇▇▇'▇ and at least "D-1" from Duff & ▇▇▇▇▇▇, if rated by
Duff & ▇▇▇▇▇▇, and allowing the Trustee, upon presentation of a sight draft, to
make drawings under such letter of credit.
"Rating Agencies" means at any date the collective reference
to any of Standard & Poor's, ▇▇▇▇▇'▇ and Duff & ▇▇▇▇▇▇, that, at such date, are
rating any Series of the SENs.
"Realization Event" shall have the meaning set forth in the
Collateral Trust Agreement.
"Receivable" shall mean the existing or future indebtedness
and payment obligations of a Person arising from the sale of Copper by the
Company and shall include the right to payments of any interest, taxes, finance
charges or late charges and other obligations of such Person with respect
thereto.
"Redemption Date", when used with respect to any SEN to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any SEN to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registrar" means Citibank, N.A., until a successor Registrar
shall have become such pursuant to the applicable provisions of this Indenture,
and, thereafter, "Registrar" shall mean such successor Registrar.
"Regular Record Date", with respect to any SEN of any Series,
shall have the meaning set forth in the Supplemental Indenture with respect to
the SENs of such Series.
"Required Balance" with respect to any Series of SENs, shall
have the meaning set forth in the Supplemental Indenture with respect to the
SENs of such Series.
"Requirements of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other governmental authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer", when used with respect to the Trustee,
means any officer within the Corporate Trust Office of the Trustee, including
any Vice President, Assistant Vice President, Senior Trust Officer, Trust
Officer, or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above-designated officers, and also,
with respect to a particular matter, any other officer to
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whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject. "Responsible Officer" when used with
respect to the Company or the Guarantor means the president, chief executive
officer, chief financial officer, principal accounting officer or treasurer of
the Company or the Guarantor, as the case may be, or other executive officer of
the Company or the Guarantor who in the normal performance of his or her
operational duties would have knowledge of any particular event or the subject
matter relating to any certificate, report or notice to be delivered or given
under the Indenture.
"Retention Trigger Event" means the occurrence of a Trigger
Event specified in Sections 601(a)(i), (a)(ii), (a)(iii), (a)(iv), (a)(ix) or
(a)(xi) or any other Trigger Event which has become a Blocking Event.
"Scheduled Debt Service" means, for a Series of SENs, as of
any date of determination and in relation to any period of time, the sum of all
interest and principal payments scheduled to be made by the Company on such
Series for such period of time.
"Secured Parties" shall have the meaning set forth in the
Collateral Trust Agreement.
"Securities Act" means the U.S. Securities Act of 1933 and any
statute successor thereto, in each case as amended from time to time.
"Security Register" means the books for the exchange,
registration and registration of transfer of the SENs.
"SENs" means any secured export notes issued by the Company
under and in accordance with the terms of this Indenture, the form of which
notes shall be annexed to the Supplemental Indenture providing for the issuance
of the Series of such notes.
"SENs Basic Collateral Percentage" shall have the meaning set
forth in the Collateral Trust Agreement.
"SENs Collateral" with respect to the SENs of any Series,
shall mean the collateral in which a security interest is granted to the Trustee
in favor of the Holders of such Series pursuant to the Supplemental Indenture
with respect to the SENs of such Series.
"SENs Collateral Account" shall have the meaning set forth in
Section 402.
"SENs Reserve Account" shall have the meaning set forth in
Section 403.
"SENs Secured Obligations" means any and all of the debts,
obligations and liabilities of the Company to the SEN Holders or the Trustee
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
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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 Company,
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 Company pursuant to the terms of any of the foregoing agreements).
"SENs Total Collateral Percentage" shall have the meaning set
forth in the Collateral Trust Agreement.
"Series" means any Series of SENs issued pursuant to a
Supplemental Indenture.
"Six Month Debt Reserve Amount" shall have the meaning set
forth in Section 601(c).
"Six Month Debt Service Coverage Ratio", means (a) 1.75 to
1.00, with respect to any six month period when the Outstanding Principal Amount
is less than or equal to $300 million on the last day of such six month period;
(b) 2.00 to 1.00, with respect to any six month period when the Outstanding
Principal Amount is greater than $300 million but less than or equal to $500
million on the last day of such six month period; or (c) 2.25 to 1.00, with
respect to any six month period when the Outstanding Principal Amount is greater
than $500 million on the last day of such six month period.
"Six Month Ratio" shall have the meaning set forth in Section
601(a).
"Special Record Date" for the payment of any Defaulted
Interest on the SENs of or within any Series means a date fixed by the Trustee
pursuant to Section 307.
"Standard & Poor's" means Standard & Poor's Ratings Group.
"Stated Maturity" when used with respect to any SEN or any
installment of principal thereof or interest thereon, means the date specified
in such SEN as the fixed date on which the principal of such SEN or such
installment of principal or interest is due and payable.
"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
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which is otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Indenture shall refer
to Subsidiaries of the Guarantor.
"Successor Corporation" shall have the meaning set forth in
Section 901.
"Supplemental Indenture" means an Indenture supplemental
hereto relating to a particular Series of SENs.
"Taxes" shall have the same meaning set forth in Section 1217.
"Three Month Debt Service Coverage Ratio" means (a) 1.5 to
1.00, with respect to any three month period when the Outstanding Principal
Amount is less than or equal to $300 million on the last day of such period; (b)
1.75 to 1.00, with respect to any three month period when the Outstanding
Principal Amount is greater than $300 million but less than or equal to $500
million on the last day of such period; or (c) 2.00 to 1.00, with respect to any
three month period when the Outstanding Principal Amount is greater than $500
million on the last day of such period.
"Three Month Ratio" shall have the meaning set forth in
Section 601(a).
"Toquepala Mine" means the copper mine, concentrator and mill
(including without limitation the mining and other concessions relating thereto)
located in Toquepala, Peru.
"Transaction Documents" means, with respect to any Series of
SENs, the Collateral Trust Agreement, this Indenture, the Supplemental Indenture
relating to such Series, the SENs of such Series and the Guarantees endorsed
thereon and any other document or agreement pursuant to which a Lien is granted
on any Collateral in connection with the Collateral Trust Agreement, this
Indenture and the Supplemental Indenture relating to such Series.
"Transfer Agent" means any person authorized by the Company to
effectuate the exchange or transfer of any SEN on behalf of the Company
hereunder.
"Trigger Event" shall have the meaning set forth in Section
601.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as in force at the date as of which this Indenture was executed, except
as provided in Section 1005; provided that if the TIA is amended hereafter, to
the extent required, TIA means the TIA as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one
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such Person, "Trustee" as used with respect to the SENs of any Series shall mean
only the Trustee with respect to SENs of that Series.
"U.S. GAAP" means generally accepted accounting principles in
the United States of America in effect from time to time.
"United States" means the United States of America (including
the states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with
respect to any SENs pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any
application or request by the Company or the Guarantor, as the case may be, to
the Trustee to take any action under any provision of this Indenture, the
Company or the Guarantor, as the case may be, shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture (including any covenant compliance with which constitutes
a condition precedent) relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such
certificate or opinion is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
covenant or condition provided for in this Indenture shall include: (1) a
statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether, in the opinion of each such
individual, such covenant or condition has been complied with.
Any certificate or opinion of an officer of the Company or the
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any certificate or opinion of
counsel may be based, insofar as it relates to factual matters, information with
respect to which is in the possession of the Company or the Guarantor, as the
case may be, upon a
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certificate or opinion of or representations by an officer or officers of the
Company or the Guarantor, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based as
aforesaid are erroneous.
Any certificate or opinion of an officer of the Company or the
Guarantor or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an Accountant in
the employ of the Company or the Guarantor, unless such officer or counsel, as
the case may be, knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to such accounting
matters upon which his certificate, statement or opinion is based as aforesaid
are erroneous.
On the anniversary of the date of issuance of SENs of any
Series that are secured by a Lien on any Property, and annually thereafter, the
Company shall furnish to the Trustee Opinions of Peruvian and United States
counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording, filing, re-recording and re-filing of
this Indenture, any Supplemental Indenture, the Collateral Trust Agreement and
any other requisite documents and with respect to the execution and filing of
any financing statements and continuation statements as is necessary to maintain
the Lien created by this Indenture or any Supplemental Indenture or the
Collateral Trust Agreement with respect to such Series and reciting the details
of such action or stating that in the opinion of such counsel no such action is
necessary to maintain such Lien. Such Opinions of Counsel shall also describe
the recording, filing, re-recording and re-filing of this Indenture, any
Supplemental Indenture, the Collateral Trust Agreement and any other requisite
documents and the execution and filing of any financing statements and
continuation statements that will, in the opinions of such counsel, be required
to maintain the Lien of this Indenture or any Supplemental Indenture until the
anniversary of such date of issuance in the following calendar year.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. ACTS OF HOLDERS. (a) Any request, demand,
authorization, direction, notice, consent, waiver, vote or other action provided
by this Indenture to be given or taken by Holders of the Outstanding SENs of all
Series or one or more Series, as the case may be, may be embodied in and
evidenced by (1) one or more instruments of substantially
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similar tenor signed by such Holders in person or by agents or proxies duly
appointed in writing, (2) the record of Holders of SENs of such Series voting in
favor thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of SENs of such Series duly called and held in accordance
with the provisions of Article Seventeen, or (3) a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company or the Guarantor or both. Such instrument or instruments and any
such record (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments or so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent or proxy, or of the holding
by any Person of a SEN, shall be sufficient for any purpose of this Indenture
and conclusive in favor of the Trustee, the Company and the Guarantor, if made
in the manner provided in this Section. The record of any meeting of Holders of
SENs shall be proved in the manner provided in Section 1706.
Without limiting the generality of the foregoing, a Holder,
including a depositary of a Holder of a Global Security, may make, give or take,
by a proxy or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted in this Indenture to be made, given or taken by Holders, and a
depositary that is a Holder of a Global Security may provide its proxy or
proxies to the beneficial owners of interest in any such Global Security.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of SENs, the principal amount and serial
numbers of SENs held by any Person, and the date of holding the same, shall be
proved by the Security Register.
(d) If the Company shall solicit from the Holders of SENs any
request, demand, authorization, direction, notice, consent, waiver, vote or
other Act, the Company may, at its option, by or pursuant to Board Resolution,
fix in advance a record date for the determination of Holders entitled to give
such request, demand, authorization, direction, notice, consent, waiver, vote or
other Act, but the Company shall have no obligation to do so. Notwithstanding
TIA Section 316(c), such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier than the
date 30 days prior to the first solicitation of Holders generally in connection
therewith and not later than the date such solicitation is completed unless
otherwise specified herein. If such a
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record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver, vote or other Act may be given before or after such record
date, but only the Holders of record at the close of business on such record
date shall be deemed to be Holders for the purposes of determining whether
Holders of the requisite percentage of Outstanding SENs have authorized or
agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver, vote or other Act, and for that purpose the Outstanding SENs
shall be computed as of such record date; provided that no such request, demand,
direction, authorization, agreement, notice, consent waiver, vote or other
action by the Holders on such record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture not later
than eleven months after the record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver, vote or other Act of the Holder of any SEN shall bind every
future Holder of the same SEN and the Holder of every SEN issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, the
Company or the Guarantor in reliance thereon, whether or not notation of such
action is made upon such SEN.
(f) At any time prior to (but not after) the evidencing to the
Trustee of the taking of any action by the Holders of the percentage in
aggregate principal amount of the SENs of any or all Series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a SEN
the serial number or other distinguishing symbol of which is shown by the
evidence to be included among the serial numbers or other distinguishing symbols
of the SENs the Holders of which have consented to such action may, by filing
written notice at the office of the Trustee and upon proof of holding as
provided in this Article, revoke such action so far as concerns such SEN.
SECTION 105. NOTICES, ETC. TO TRUSTEE, REGISTRAR, PRINCIPAL
PAYING AGENT, COMPANY AND GUARANTOR. Any request, demand, authorization,
direction, notice, consent, waiver, vote or Act of Holders or other documents
provided or permitted by this Indenture to be made upon, given or furnished to,
or filed with,
(1) the Trustee, Registrar, or Principal Paying Agent by any
Holder, by the Company or by the Guarantor shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its office located at Citibank, N.A.,
Structured Finance Team, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇; or
(2) the Company or the Guarantor by the Trustee, Registrar or
Principal Paying Agent or by any Holder shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company,
Attention: Treasurer, or the Guarantor, Attention: Treasurer, addressed
to either at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or at any
other address previously furnished in writing to the Trustee by the
Company or the Guarantor.
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SECTION 106. NOTICE TO HOLDERS; WAIVER. Where this Indenture
provides for notice of any event to Holders of SENs by the Company, the
Guarantor or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid to each such Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date (if any), and
not earlier than the earliest date (if any), prescribed for the giving of such
notice. In any case where notice to Holders of SENs is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders of SENs given as provided. Any notice mailed to a Holder in the
manner herein provided shall be conclusively deemed to have been received by
such Holder whether or not such Holder actually receives such notice.
In case, by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impractical to
mail notice of any event to Holders of SENs when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be
sufficient giving of such notice for every purpose hereunder.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 108. SUCCESSORS AND ASSIGNS. All covenants and
agreements in this Indenture by the Company or the Guarantor shall bind their
respective successors and assigns, whether so expressed or not.
SECTION 109. SEPARABILITY CLAUSE. In case any provision in
this Indenture, any SEN or Guarantee shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 110. BENEFITS OF INDENTURE. Nothing in this Indenture,
the SENs or the Guarantees, express or implied, shall give to any Person, other
than the parties hereto, any Authenticating Agent, any Paying Agent, any
Registrar and their successors hereunder and the Holders of SENs, any benefit or
any legal or equitable right, remedy or claim under this Indenture, the SENs or
the Guarantees.
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SECTION 111. CONFLICT WITH TRUST INDENTURE ACT. If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such Act to be a part of and govern this
Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
SECTION 112. GOVERNING LAW; CONSENT TO JURISDICTION AND
SERVICE OF PROCESS. (a) All matters in respect of this Indenture, the SENs and
the Guarantees shall be governed by, and construed in accordance with, the laws
of the State of New York, United States of America, without regard to conflicts
of law principles thereof.
(b) The Company and the Guarantor consent to the non-exclusive
jurisdiction of any court of the State of New York or any United States federal
court sitting in the Borough of ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇, and any appellate court from any thereof, and waive any immunity from
the jurisdiction of such courts over any suit, action or proceeding that may be
brought in connection with this Indenture or the SENs. The Company and the
Guarantor irrevocably waive, to the fullest extent permitted by law, any
objection to any suit, action, or proceeding that may be brought in connection
with this Indenture or the SENs in such courts whether on the grounds of venue,
residence or domicile or on the ground that any such suit, action or proceeding
has been brought in an inconvenient forum. The Company and the Guarantor agree
that final judgment in any such suit, action or proceeding brought in such court
shall be conclusive and binding upon the Company or the Guarantor and may be
enforced in any court to the jurisdiction of which the Company or the Guarantor
is subject by a suit upon such judgment; provided that service of process is
effected upon the Company or the Guarantor in the manner provided by this
Indenture.
(c) Each of the Company and the Guarantor shall appoint an
agent in New York City for service of process if the Company or the Guarantor
shall cease to or shall not have a place of business in New York City and
promptly deliver to the Trustee letters from such process agent acknowledging
its appointment as agent for such purpose in form and substance reasonably
satisfactory to the Trustee. The Company and the Guarantor agree that service of
all writs, process and summonses in any suit, action or proceeding brought in
connection with this Indenture, the SENs or the Guarantees against the Company
or the Guarantor in any court of the State of New York or any United States
federal court sitting in the Borough of Manhattan, New York City may be made
upon such process agent, whom the Company and the Guarantor each appoint as its
authorized agent for service of process. The Company and the Guarantor agree
that such appointment shall be irrevocable so long as any of the SENs remain
outstanding or until the irrevocable appointment by the Company or the Guarantor
of a successor in The City of New York as its authorized agent for such purpose
and the acceptance of such appointment by such successor. The Company and the
Guarantor further agree to take any and all action, including the filing of any
and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. If such person shall cease to
act as the Company's or the Guarantor's agent for service of process, the
Company or the Guarantor, as the case may be, shall appoint without
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delay another such agent and provide prompt written notice to the Trustee of
such appointment. With respect to any such action in any court of the State of
New York or any United States federal court in the Borough of Manhattan, New
York City, service of process upon such person, as the authorized agent of the
Company or the Guarantor for service of process, and written notice of such
service to the Company or the Guarantor, shall be deemed, in every respect,
effective service of process upon the Company or the Guarantor.
(d) Nothing in this Section shall affect the right of any
party to serve legal process in any other manner permitted by law or affect the
right of any party to bring any action or proceeding against any other party or
its property in the courts of other jurisdictions.
SECTION 113. COUNTERPARTS. This Indenture may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 114. LEGAL HOLIDAYS. In any case where any Payment
Date, Redemption Date, or Stated Maturity or Maturity of any SEN shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of any SEN other than a provision in the SENs of any Series
or the Supplemental Indenture relating thereto which specifically states that
such provision shall apply in lieu of this Section) payment of interest or
principal (and premium, if any) need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Payment Date or
Redemption Date or at the Stated Maturity or Maturity; provided, that no
interest shall accrue for the period from and after such Payment Date,
Redemption Date, Stated Maturity or Maturity, as the case may be.
SECTION 115. INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS OF COMPANY AND GUARANTOR EXEMPT FROM INDIVIDUAL LIABILITY. No recourse
under or upon any obligation, covenant or agreement contained in this Indenture,
any SEN, or any Guarantee or because of any indebtedness evidenced thereby,
shall be had against any incorporator, as such, or against any past, present or
future stockholder, officer or director, as such, of the Company or the
Guarantor or of any successor thereof, either directly or through the Company or
the Guarantor or any successor thereof, under any rule of law, statute, or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the SENs by the Holders thereof and as part of
the consideration for the issuance of the SENs.
SECTION 116. CURRENCY. Each reference in this Indenture and
the other Transaction Documents to Dollars is of the essence. To the fullest
extent permitted by applicable law, the obligation of the Company or the
Guarantor in respect of any amount due under this Indenture and other
Transaction Documents with respect to the SENs shall, notwithstanding any
payment in any other currency (whether pursuant to a judgment or otherwise), be
discharged only to the extent of the amount in Dollars that the Person entitled
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to receive that payment may, in accordance with normal banking procedures,
purchase with the sum paid in such other currency (after any premium and costs
of exchange) on the Business Day immediately following the day on which that
Person receives that payment. If the amount in Dollars that may be so purchased
for any reason falls short of the amount originally due, the Company or the
Guarantor shall pay such additional amounts, in Dollars, as may be necessary to
compensate for the shortfall and if the Dollars so purchased exceed the amount
originally due, such excess shall be remitted to the Company or the Guarantor,
as the case may be. Any obligation of the Company or the Guarantor not
discharged by that payment shall, to the extent permitted by applicable law, be
due as a separate and independent obligation and, until discharged as provided
herein, shall continue in full force and effect.
ARTICLE TWO
FORM OF SENS AND GUARANTEES
SECTION 201. FORMS GENERALLY. The SENs of each Series shall be
in substantially the forms as shall be established by or pursuant to a Board
Resolution and in one or more Supplemental Indentures, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have imprinted or otherwise
reproduced thereon such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may be required to comply with
the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such SENs, as evidenced by their execution
of the SENs. Any portion of the text of any SEN may be set forth on the reverse
thereof, with an appropriate reference thereto on the face of the SEN. Temporary
SENs of any series may be issued as permitted by Section 304.
The Trustee's certificate of authentication on all SENs shall
be in substantially the form set forth in this Article.
The definitive SENs shall be printed, lithographed or engraved
on steel-engraved borders or may be produced in any other manner permitted by
the rules of any securities exchange on which the SENs may be listed, if any,
all as determined by the officers of the Company executing such SENs, as
evidenced by their execution of such SENs.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 713, the Trustee's certificate of
authentication shall be in substantially the following form:
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This is one of the SENs of the Series designated herein and
referred to in the within-mentioned Indenture.
Citibank, N.A., as Trustee
By
----------------------------
Authorized Signatory
SECTION 203. FORM OF GUARANTEES. The Guarantees to be endorsed
on the SENs of each Series shall be in substantially the form set forth in
Exhibit A hereto (subject to the provisions set forth in Section 1602 hereof) or
as shall be established by or pursuant to a Board Resolution of the Guarantor,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
imprinted or otherwise reproduced thereon such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with the rules of any securities exchange or to conform to general
usage or as may, consistently herewith, be determined by the officers executing
such Guarantees, as evidenced by their execution of such Guarantees. If the form
of Guarantee with respect to the SENs of any Series is established by action
taken pursuant to a Board Resolution with respect to any Series of SENs, the
form of such Guarantee shall be attached as an Exhibit to the Supplemental
Indenture for such Series of SENs.
The Guarantees to be endorsed on the definitive SENs of any
Series shall be printed, lithographed or engraved on steel engraved borders or
may be produced in any other manner, all as determined by the officers executing
such Guarantees, as evidenced by their execution of such Guarantees.
SECTION 204. SENS ISSUABLE IN GLOBAL FORM. If SENs of or
within a Series are issuable in global form, as contemplated by Section 301,
then, notwithstanding clause (8) of Section 301, any such SEN shall represent
such of the Outstanding SENs of such Series as shall be specified therein and
may provide that it shall represent the aggregate amount of Outstanding SENs of
such Series from time to time endorsed thereon and that the aggregate amount of
Outstanding SENs of such Series represented thereby may from time to time be
increased or decreased to reflect exchanges. Any endorsement of a SEN in global
form to reflect the amount, or any increase or decrease in the amount, of
Outstanding SENs represented thereby shall be made by the Trustee in such manner
and upon instructions given by such Person or Persons as shall be specified
therein or in the Company Order to be delivered to the Trustee pursuant to
Section 303 or Section 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any SEN in
global form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or Section 304 has been, or simultaneously is,
delivered, any instructions by the Company or the Guarantor with respect to
endorsement or delivery or redelivery of a SEN in global form
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shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply
to any SEN represented by a SEN in global form if such SEN was never issued and
sold by the Company or the Guarantor and the Company or the Guarantor delivers
to the Trustee the SEN in global form together with written instructions (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) with regard to the reduction in the principal amount of SENs
represented thereby, together with the written statement contemplated by the
last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of principal of and
any premium and interest on any SEN in global form shall be made to the Person
or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Company, the Guarantor, the Trustee and
any agent of the Company, the Guarantor and the Trustee shall treat as the
Holder of such principal amount of Outstanding SENs represented by a global SEN
the Holder of such global SEN.
ARTICLE THREE
THE SENS
SECTION 301. AMOUNT; ISSUABLE IN SERIES. The aggregate
principal amount of SENs which may be authenticated and delivered under this
Indenture shall be limited to US$750,000,000, except for SENs authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other SENs of the Series pursuant to Section 304, 305, 306, 1006 or 1307 or
pursuant to an Exchange Offer.
The SENs constitute the direct and unconditional obligations
of the Company and rank pari passu without preference among themselves. The
payment obligations of the Company under the SENs will at all times rank at
least equally in priority of payment with all other present and future unsecured
and unsubordinated obligations of the Company from time to time outstanding.
The SENs may be issued in one or more Series. Prior to the
issuance of SENs of any Series, there shall be (i) established in one or more
Board Resolutions of the Company and of the Guarantor or pursuant to authority
granted by one or more Board Resolutions of the Company and of the Guarantor,
(ii) subject to Section 303, set forth in, or determined in the manner provided
in, an Officers' Certificate, and (iii) if the SENs to be issued are of a Series
not theretofore created, established in one or more Supplemental Indentures, any
or all of the following, as applicable (each of which (except for the matters
set forth in clauses (1), (2), (9), (12), (13), (17), (19) and (20) below), if
so provided, may
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be determined from time to time by the Company or the Guarantor with respect to
unissued SENs of the Series and set forth in such SENs of the Series when issued
from time to time):
(1) the title of the SENs of the Series (which shall
distinguish the SENs of the Series from all other Series of SENs);
(2) any limit upon the aggregate principal amount of the SENs
of the Series that may be authenticated and delivered under this
Indenture, except for SENs authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
SENs of the Series pursuant to Section 304, 305, 306, 1006 or 1307 or
pursuant to an Exchange Offer (and except for any SENs which, pursuant
to Section 303, are deemed never to have been authenticated and
delivered hereunder);
(3) the date or dates, or the method by which such date or
dates will be determined or extended, on which the principal of the
SENs of the Series is payable:
(4) the rate or rates at which the SENs of the Series shall
bear interest, if any, or the method by which such rate or rates shall
be determined, the date or dates from which such interest shall accrue,
or the method by which such date or dates shall be determined, the
Payment Dates on which such interest shall be payable and the Regular
Record Date, if any, for the interest payable on any SENs on any
Payment Date, or the method by which such date or dates shall be
determined, and the basis upon which interest shall be calculated if
other than on the basis of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to
the Borough of Manhattan, The City of New York, where the principal of
(and premium, if any, on) and any interest on SENs of the Series shall
be payable, any SENs of the Series may be surrendered for registration
of transfer or surrendered for exchange and, if different than the
location specified in Section 106, the place or places where notices or
demands to or upon the Company or the Guarantor in respect of the SENs
of the Series and this Indenture may be served;
(6) the period or periods within which, the price or prices at
which, and other terms and conditions upon which SENs of the Series may
be redeemed, in whole or in part, at the option of the Company, if the
Company is to have that option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase SENs of the Series, and the period or periods within which,
the price or prices at which, and other terms and conditions
(including, without limitation, the type of consideration to be paid by
the Company) upon which SENs of the Series shall be redeemed, repaid or
purchased, in whole or in part, pursuant to such obligation;
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(8) if other than denominations of US$250,000 and any integral
multiple of US$1,000 in excess thereof, the denominations in which any
SENs of the Series shall be issuable;
(9) the identity of the Trustee for such SENs and, if other
than the Trustee, the identity of each SEN Registrar and/or Paying
Agent, any qualifications of the Trustee or any co-trustee with respect
to such SENs in addition to the qualifications otherwise specified in
this Indenture and any obligations or duties of the Trustee or any
co-trustee with respect to such SENs in addition to the obligations and
duties otherwise specified in this Indenture;
(10) the percentage of the principal amount at which such SENs
will be issued and, if other than the principal amount thereof, the
portion of the principal amount of SENs of the Series that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 604 or the method by which such portion shall be
determined;
(11) whether Article Fifteen is inapplicable to the SENs of
the Series and any provisions in modification of, in addition to or in
lieu of the provisions of Article Fifteen that shall be applicable to
the SENs of the Series;
(12) provisions, if any, granting special rights to the
Holders of SENs of the Series upon the occurrence of such events as may
be specified;
(13) any deletions from, modifications of or additions to the
Trigger Events, Accelerated Amortization Events, Events of Default,
covenants or representations and warranties of the Company or the
Guarantor with respect to SENs of the Series, whether or not such
Trigger Events, Accelerated Amortization Events, Events of Default,
covenants or representations and warranties are consistent with the
Trigger Events, Accelerated Amortization Events, Events of Default or
covenants set forth herein;
(14) any restrictions applicable to the offer, sale or
delivery of SENs;
(15) the date as of which any SENs of the Series shall be
dated if other than the date of original issuance of the first SEN of
the Series to be issued;
(16) the manner in which or the Person to whom any interest on
any SEN of the Series shall be payable, if other than the Person in
whose name that SEN (or one or more Predecessor SENs) is registered at
the close of business on the Regular Record Date for such interest;
(17) if the SENs of the Series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary SEN of such Series) only upon receipt of certain certificates
or other documents or satisfaction of other conditions, the form and/or
terms of such certificates, documents or conditions;
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(18) any modifications to the Guarantees of the SENs of such
Series pursuant to Section 203;
(19) any modifications to the circumstances when the Company
will pay Additional Amounts as contemplated by Section 1217 on the SENs
of the Series in respect of any tax, assessment or governmental charge
and, if so, any modifications to the circumstances, when the Company
will have the option to redeem such SENs rather than pay such
Additional Amounts (and the terms of any such option); and
(20) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the Series
(which terms shall not be inconsistent with the requirements of the
Trust Indenture Act or the provisions of this Indenture).
Each Series of SENs shall be issued pursuant to a Supplemental
Indenture hereto.
All SENs (and any Guarantees endorsed thereon) of any one
Series shall be substantially identical except as to denomination and except as
may otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in any such
Supplemental Indenture. Not all SENs of any one Series need be issued at the
same time, and, unless otherwise provided, a Series may be reopened for
issuances of additional SENs of such Series.
SECTION 302. DENOMINATIONS. All SENs shall be issuable in such
denominations as shall be specified as contemplated by Section 301. SENs, other
than those issued in global form (which may be of any denomination), shall be
issuable in denominations of US$1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The SENs shall be executed manually or by facsimile on behalf of the Company by
its Chairman and/or its President or any Vice President or the Treasurer. The
signature of any of these officers on the SENs may be the manual or facsimile
signatures of the present or any future such authorized officer and may be
imprinted or otherwise reproduced on the SENs.
In case any officer of the Company who shall have signed any
of the SENs shall cease to be such officer before the SEN so signed shall be
authenticated and delivered by the Trustee or disposed of by the Company, such
SEN nevertheless may be authenticated and delivered or disposed of as though the
person who signed such SEN had not ceased to be such officer of the Company; and
any SEN may be signed on behalf of the Company by such person as, at the actual
date of the execution of such SEN, shall be the proper officers of the Company,
although at the date of the execution and delivery of this Indenture any such
person was not an officer.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver SENs of any Series, executed
by the Company and
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having Guarantees endorsed thereon to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such SENs, and the
Trustee in accordance with such Company Order shall authenticate and deliver
such SENs without any further action by the Company. If not all the SENs of any
Series are to be issued at one time and if the Board Resolution and Supplemental
Indenture establishing such Series shall so permit, such Company Order may set
forth procedures acceptable to the Trustee for the issuance of such SENs and
determining terms of particular SENs of such Series such as interest rate,
maturity date, date of issuance and date from which interest shall accrue.
In authenticating such SENs, and accepting the additional
responsibilities under this Indenture in relation to such SENs, the Trustee
shall be entitled to receive, and (subject to TIA Sections 315(a) through
315(d)) shall be fully protected in relying upon,
(1) (a) a copy of any Board Resolution or Board Resolutions
relating to such Series;
(b) an executed supplemental indenture relating thereto; and
(c) an Officer's Certificate setting forth the form and terms
of the SENs as required pursuant to Sections 201 and 301, respectively, and
prepared in accordance with the requirements of the Trust Indenture Act and
Section 102; or
(2) or an Opinion of Counsel stating:
(a) that the form or forms of such SENs and of the Guarantees
endorsed thereon have been established in conformity with the
provisions of this Indenture;
(b) that the terms of such SENs and of the Guarantees endorsed
thereon have been established in conformity with the provisions of this
Indenture;
(c) that such SENs and the Guarantees endorsed thereon, when
completed by appropriate insertions and executed and delivered by the
Company and the Guarantor to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture and issued by the Company and
the Guarantor in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute the legal, valid and binding
obligations of the Company and the Guarantor, enforceable in accordance
with their terms, subject to applicable bankruptcy, insolvency,
reorganization and other similar laws of general applicability relating
to or affecting the enforcement of creditors rights and to general
equitable principles and to such other qualifications as such counsel
shall conclude do not materially affect the rights of Holders of SENs;
and
(d) that the Indenture (including any Supplemental Indenture
relating to such SENs) and the Collateral Trust Agreement have been
duly recorded, registered and filed in such manner and in such places
as may be required by law in order to make effective and to maintain
the Lien intended to be created, and reciting the
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details of such action, or stating that no such action is necessary to
make effective and to maintain such Lien.
Notwithstanding the provisions of Section 301 and this Section
303, if not all the SENs of any Series are to be issued at one time it shall not
be necessary to deliver the Officers' Certificate otherwise required pursuant to
Section 301 or the Company Order and Opinion of Counsel otherwise required
pursuant to this Section 303 prior to or at the time of issuance of each SEN,
but such documents shall be delivered prior to or at the time of issuance of the
first SEN of such Series.
The Trustee shall have the right to decline to authenticate
and deliver any SENs under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Company or
if the Trustee in good faith by its Responsible Officers shall determine that
such action would expose the Trustee to personal liability to existing Holders
or would adversely affect the Trustee's own rights, duties or immunities under
this Indenture or otherwise. Each SEN shall be dated the date of its
authentication.
No SEN or Guarantee shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such SEN a certificate of authentication substantially in the form provided for
herein duly executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any SEN executed by the Company shall be
conclusive evidence that such SEN has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any SEN shall have been authenticated and delivered hereunder but
never issued and sold by the Company, and the Company shall deliver such SEN to
the Trustee for cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 102 and need not be accompanied by
an Opinion of Counsel) stating that such SEN has never been issued and sold by
the Company, for all purposes of this Indenture such SEN shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES. Pending the preparation of
definitive SENs of any Series, the Company may execute, and upon Company Order
the Trustee shall authenticate and deliver, temporary SENs which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive SENs (and having
endorsed thereon Guarantees substantially of the tenor of the definitive
Guarantees) in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as conclusively the
officers executing such SENs and Guarantees may determine, as conclusively
evidenced by their execution of such SENs and Guarantees. In the case of SENs of
any Series, such temporary SENs may be in global form.
If temporary SENs of any Series are issued, the Company will
cause definitive SENs of that Series to be prepared without unreasonable delay.
After the preparation of definitive SENs of such Series, the temporary SENs of
such Series shall be exchangeable for definitive SENs of such Series, upon
surrender of the temporary SENs of such Series at the
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office or agency of the Company in a Place of Payment for that Series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary SENs of any Series, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive SENs of the same Series of authorized denominations. Until so
exchanged the temporary SENs of any Series shall in all respects be entitled to
the same benefits under this Indenture as definitive SENs of such Series.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE. Subject to any applicable laws and such reasonable regulations as it
may prescribe, Citibank, N.A., as Registrar, shall keep the Security Register
for each Series of SENs at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, for the registration of ownership, exchange, and transfer of the
SENs. Included in the books and records for the SENs shall be notations as to
whether such SENs have been paid, exchanged or transferred and cancelled or
lost, stolen, mutilated or destroyed and whether such SENs have been replaced.
In the case of the replacement of any of the SENs, the Registrar shall keep a
record of the SEN so replaced and the SEN issued in replacement thereof. In the
case of the cancellation of any of the SENs, the Registrar shall keep a record
of the SEN so cancelled and the date on which such SEN was cancelled.
Upon presentation for exchange or transfer of any SEN of any
Series at the Corporate Trust Office of the Registrar accompanied by a written
instrument of exchange or transfer with signature medallion guarantee in a form
approved by the Company and the Registrar, executed by the registered Holder or
his attorney-in-fact duly authorized in writing with signature medallion
guarantee, and upon completion of any certification required by the terms of
this Indenture (including any required with respect to any Series as specified
in the Supplemental Indenture related thereto), such SEN shall be exchanged or
transferred upon the Security Register, and one or more new SENs of the same
Series shall be authenticated and issued (with a Guarantee endorsed thereon) in
the name of the Holder (in the case of exchanges only) or the transferee, as the
case may be. No exchange or transfer of a SEN shall be effective under this
Indenture or the SENs unless and until such SEN has been registered in the name
of such Person in the Security Register. Furthermore, the exchange or transfer
of any SEN shall not be effective under this Indenture or the SENs unless the
request for such exchange or transfer is made by the registered Holder or by a
duly authorized attorney-in-fact at the Corporate Trust Office of the Registrar.
All SENs (including the Guarantees endorsed thereon) issued
upon any registration of transfer or exchange of SENs shall be the valid
obligations of the Company and the Guarantor, as the case may be, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the SENs
surrendered upon such registration of transfer or exchange.
Every SEN presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Guarantor or
the Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer with signature medallion guarantee, in form satisfactory to the
Company, the Guarantor and the Registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing.
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No service charge shall be made for any registration of
transfer or exchange of SENs, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of SENs, other than
exchanges pursuant to Section 304, 1006 or 1307 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange SENs of any Series during a period beginning at the
opening of business 15 days before the day of the selection for redemption of
SENs of that Series under Section 1303 and ending at the close of business on
the day of the mailing of the relevant notice of redemption, or (ii) to register
the transfer of or exchange any SEN so selected for redemption in whole or in
part, except the unredeemed portion or any SEN being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SENS. If
any mutilated or defaced SEN is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new SEN of the same Series and of like tenor and aggregate principal amount,
having endorsed thereon a Guarantee and bearing a number or other distinguishing
symbol not contemporaneously outstanding in exchange and substitution for the
mutilated or defaced SEN.
If there shall be delivered to the Company, the Guarantor and
to the Trustee (i) evidence to their satisfaction of the destruction, loss or
theft of any SEN and (ii) such security or indemnity as may be required by them
to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company, the Guarantor or the Trustee that such SEN has
been acquired by a bona fide purchaser, the Company shall execute and upon
Company Order the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen SEN, a new SEN of the same Series and of like tenor
and aggregate principal amount, having endorsed thereon a Guarantee and bearing
a number or other distinguishing symbol not contemporaneously outstanding in
lieu of and substitution for the SEN so destroyed, lost or stolen. In every case
the applicant for a substitute SEN shall furnish to the Company and to the
Trustee (and any agent of the Company or Trustee, if requested by the Company)
such security or indemnity as may be required by them to indemnify and defend
and save each of them harmless and, in every case of destruction, loss or theft,
evidence to their satisfaction of the destruction, loss or theft of such SEN and
the ownership thereof.
In case any SEN that has matured or is about to mature or has
been called for redemption in full shall become mutilated or defaced or be
destroyed, lost or stolen, the Company in its discretion may instead of issuing
a substitute SEN pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated or defaced SEN), if the applicant for
such payment shall furnish to the Company and to the Trustee (and any agent of
the Company or Trustee, if requested by the Company) such security or indemnity
as any of them may require to indemnify and defend and to save each of them
harmless, and, in every case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such SEN and of the ownership
thereof.
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Upon the issuance of any new SEN under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new SEN of any Series issued pursuant to this Section in
lieu of any destroyed, lost or stolen SEN (including the Guarantee endorsed
thereon) shall constitute an original additional contractual obligation of the
Company (and, with respect to such Guarantee, the Guarantor) whether or not the
destroyed, lost or stolen SEN shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other SENs of that Series duly issued
hereunder.
All SENs shall be held and owned upon the express condition
that, to the extent permitted by law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, defaced, destroyed,
lost or stolen SENs and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
(a) Unless otherwise provided as contemplated by Section 301 with respect to any
Series of SENs,
(i) Payments in respect of the principal and premium, if any,
on the final Maturity of the SENs of any Series will be made only
against surrender for cancellation of such SENs at the Corporate Trust
Office of the Principal Paying Agent in the City of New York and,
subject to any fiscal or other laws and regulations applicable thereto,
at the specified offices of any other Paying Agent appointed by the
Company.
(ii) Payment in respect of interest on each Payment Date and
Additional Amounts with respect to any SENs and all other payments of
principal and premium, if any due on such SENs on each Payment Date
will be made, in Dollars, to the person in whose name such SENs (or one
or more Predecessor SEN) is registered in the Securities Register on
the close of business on the Regular Record Date immediately preceding
such Payment Date at the office or agency of the Company maintained for
such purpose pursuant to Section 1202; provided, however, that each
installment of interest and principal on any SEN may at the Company's
option be paid by (i) mailing a check for such interest, payable to or
upon the written order of the Person entitled thereto pursuant to
Section 308, to the address of such Person as it appears on the
Security Register or (ii) transfer to an account maintained by the
payee located in the United States;
(iii) If the due date for payment of any principal or interest
in respect of any SEN is not a Business Day at
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the Place of Payment, the Holder thereof will not be entitled to
payment of the amount due until the next succeeding Business Day at
such place and will not be entitled to any further interest or other
payment in respect of any such delay;
(iv) Any interest on any SEN of any Series which is payable,
but is not punctually paid or duly provided for, on any Payment Date
shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such
defaulted interest and, if applicable, interest on such defaulted
interest (to the extent lawful) at the rate specified in the SENs of
such Series, or in the Supplemental Indenture relating thereto (such
defaulted interest and, if applicable, interest thereon herein
collectively called "Defaulted Interest") may be paid by the Company,
at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the SENs of
such Series (or their respective Predecessor SENs) are
registered at the close of business on a Special Record Date
("Special Record Date") for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each SEN of such
Series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of
money in Dollars (except as otherwise specified pursuant to
Section 301 for the SENs of such Series) equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit on or prior to the date of the
proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be given in
the manner provided in Section 106, not less than 10 days
prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor haying been so given, such Defaulted Interest shall
be paid to the Persons in whose name the SENs of such Series
(or their respective Predecessor SENs) are registered at the
close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted
Interest on the SENs of any Series in any other lawful manner
not inconsistent with the requirements of any securities
exchange on which such SENs may be listed, and upon such
notice as may be required by such exchange, if, after notice
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given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
(b) At least ten (10) Business Days prior to each Payment
Date, any Redemption Date or the Maturity of the SENs, the Company shall furnish
to the Principal Paying Agent and each other Paying Agent to whom the Company
has provided funds directly pursuant to this Indenture a certificate of a
Responsible Officer specifying the amount required to be deducted or withheld on
payments of principal or interest on the SENs due on such date of payment for or
on account of any Taxes, if any, and certifying that such amount will be
withheld and paid by the Company to the extent required by Section 1217 hereof
provided that if there is no change in the percentage to be withheld for or on
account of any Taxes from the previous period, the previously delivered
certificate shall be deemed to continue to apply and the Company shall not be
required to provide a new certificate. The Company covenants to indemnify the
Principal Paying Agent and the other Paying Agents for, and to hold each
harmless against, any loss, liability or reasonable expense incurred without
negligence, bad faith or willful misconduct on their part, arising out of or in
connection with actions taken or not taken by any of them in reliance on any
certificate furnished to them pursuant to this paragraph or the failure to
furnish any such certificate. The obligations of the Company under the preceding
sentence shall survive payment of all the SENs, the satisfaction and discharge
of this Indenture and the resignation or removal of the Trustee, Registrar or
any Paying Agent.
Any certificate required by this Section to be provided to the
Principal Paying Agent and any other Paying Agent shall be deemed to be duly
provided if telecopied to the Principal Paying Agent and such other Paying
Agent. Upon request, the Company shall provide the Principal Paying Agent with
documentation reasonably satisfactory to the Principal Paying Agent evidencing
the payment of Taxes in respect of which the Company has paid any Additional
Amounts. Copies of such documentation shall be made available to the Holders or
other Paying Agents, as applicable, upon request therefor.
SECTION 308. PERSONS DEEMED OWNERS. Prior to due presentment
of a SEN for registration of transfer, the Company, the Guarantor, the Trustee
and any agent of the Company, the Guarantor or the Trustee may treat the Person
in whose name such SEN is registered in the Security Register for such Series as
the absolute owner of such SEN for the purpose of receiving payment of principal
of (and premium, if any, on) and (subject to Sections 305 and 307) interest on
such SEN and for all other purposes whatsoever, whether or not such SEN be
overdue, and none of the Company, the Guarantor, the Trustee or any agent of the
Company, the Guarantor or the Trustee shall be affected by notice to the
contrary. None of the Company, the Trustee, any Paying Agent or the Registrar
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of any SEN in
global form or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Global
Security, nothing herein shall prevent the Company, the Guarantor, the Trustee,
or any agent of the Company, the Guarantor or the Trustee from giving effect to
any written certification, proxy or other
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authorization furnished by any depositary, as a Holder, with respect to such
Global Security or impair as between such depositary and owners of beneficial
interests in such Global Security the operation of customary practices governing
the exercise of the rights of such depositary (or its nominee) as Holder of such
Global Security.
SECTION 309. CANCELLATION. All SENs surrendered for payment,
redemption, repayment at the option of the Holder, registration of transfer or
exchange or for credit against any current or future sinking fund payment shall,
if surrendered to any Person other than the Trustee, be delivered to the
Trustee. All SENs so delivered to the Trustee shall be promptly cancelled by it.
The Company may at any time deliver to the Trustee for cancellation any SENs
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any SENs previously
authenticated hereunder which the Company has not issued and sold, and all SENs
so delivered shall be promptly cancelled by the Trustee. If the Company or the
Guarantor shall so acquire any of the SENs, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such
SENs unless and until the same are surrendered to the Trustee for cancellation.
No SENs shall be authenticated in lieu of or in exchange for any SENs cancelled
as provided in this Section, except as expressly permitted by this Indenture.
All cancelled SENs held by the Trustee shall be disposed of by the Trustee in
accordance with its customary procedures.
SECTION 310. COMPUTATION OF INTEREST. Except as otherwise
specified as contemplated by Section 301 with respect to any SENs, interest on
the SENs of each Series shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 311. CURRENCY IN RESPECT OF SENS. All SENs will be
denominated in, and all payments of the principal of (and premium, if any on)
and interest on any SEN of any Series will be made in, Dollars.
SECTION 312. RECOURSE TO TRUST ESTATE. The trust estate
granted to the Trustee as security for a particular Series of SENs will serve as
security only for that Series. Notwithstanding any provision of this Indenture
or any Supplemental Indenture to the contrary, Holders of SENs of one Series
shall have no recourse against the trust estate granted to the Trustee as
security for any other Series of SENs, and no judgment against the Company or
the Guarantor for any amount due with respect to one Series of SENs may be
enforced against the trust estate securing any other Series of SENs, nor may any
prejudgment lien or other attachment be sought against any such other trust
estate.
ARTICLE FOUR
ACCOUNTS; PAYMENTS; APPLICATION OF FUNDS
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SECTION 401. COLLECTION ACCOUNT. Prior to the execution and
delivery of this Indenture, the Collateral Trustee has established pursuant to
the Collateral Trust Agreement the Collection Account.
SECTION 402. SENS COLLATERAL ACCOUNTS; PAYMENTS; APPLICATION
OF FUNDS.
(1) Concurrently with the execution and delivery of each
Supplemental Indenture relating to a Series of SENs, the Trustee shall establish
a segregated trust account denominated in Dollars, created and maintained by the
Trustee in its trust capacity in its corporate trust department and entitled
Citibank, N.A./Southern Peru Limited Series _____ SENs Collateral Trust Account"
and clearly indicating that such account is being held for the benefit of the
Holders of such Series of the SENs (each, a "SENs Collateral Account") into
which monies will be deposited and from which monies will be withdrawn as
provided in this Indenture and the Supplemental Indenture for the applicable
Series and the Collateral Trust Agreement. Each SENs Collateral Account shall be
maintained at all times until payment and performance of all SENs Secured
Obligations of the applicable Series in accordance with the provisions hereof.
All monies and instruments credited to each SENs Collateral Account from time to
time shall constitute part of the SENs Collateral for the applicable Series and
shall be collateral security for the payment and performance by the Company of
all the SENs Secured Obligations of the applicable Series and, subject to the
terms of this Indenture and the Collateral Trust Agreement, shall at all times
be subject to the sole dominion and control of the Trustee. Until payment and
performance of all SENs Secured Obligations of the applicable Series in
accordance with the provisions hereof, the Company shall have no right to the
funds credited to a SENs Collateral Account, except as provided in Section 402
hereof.
(2) Except as may be otherwise provided for any Series in a
Supplemental Indenture for such Series, on each Business Day, the Trustee shall
apply the funds deposited in the SENs Collateral Account for each Outstanding
Series as follows in the following order of priority:
(A) first, to the extent due and not paid, an amount equal to
such Series' pro rata share of the fees and expenses of the Trustee
payable under this Indenture shall be paid to the Trustee;
(B) second, if the amount on deposit on such Business Day in
the SENs Reserve Account for such Series (after giving effect to all
transfers to be made on such day) is less than the Required Balance for
such Series, an amount equal to the amount necessary to cause the
amount on deposit in the SENs Reserve Account for such Series to equal
the Required Balance; and
(C) third, (i) so long as no Retention Trigger Event or Debt
Service Retention Event has occurred and is continuing with respect to
such Series, the remainder of such funds shall be transferred to the
Company; or (ii) if a Retention Trigger Event or Debt Service Retention
Event has occurred and is
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continuing with respect to such Series, an amount equal to the amount
of such funds as is necessary to cause the amount on deposit in such
SENs Collateral Account to equal the past due interest and principal on
the SENs of such Series and interest and principal due on the SENs of
such Series on the immediately succeeding Payment Date shall remain on
deposit in such SENs Collateral Account until applied in accordance
with paragraph (4) of this Section 402 and the remainder of such funds,
if any (the "Excess Collections"), subject to any further retention of
Excess Collections required pursuant to the provisions of Sections
601(b) and 604, shall be transferred to the Company.
(3) Unless a Retention Trigger Event or a Debt Service
Retention Event has occurred and is continuing, with respect to SENs of any
Series, the Company will, no later than each Payment Date with respect to such
Series, deposit with Paying Agents a sum (in Dollars) sufficient to pay the
principal (and premium, if any) or interest so becoming due on such Payment Date
(collectively, the "Due Amount"), such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act. If a Retention Trigger Event or a Debt Service
Retention Event has occurred and is continuing with respect to the SENs of any
Series, no later than 10:00 a.m. on the third Business Day prior to each Payment
Date with respect to such Series, the Trustee will give the Company written
notice of the amount on deposit in the SENs Collateral Account for such Series
and the Company will, no later than the Business Day prior to each Payment Date
with respect to such Series, deposit in the SENs Collateral Account the excess,
if any, of the Due Amount for such Payment Date over the amount on deposit on
such SENs Collateral Account on the Business Day prior to each Payment Date with
respect to such Series, and the Company will promptly notify the Trustee of its
action or failure so to act.
If at 11:00 a.m. (New York City time) on a Payment Date for
the SENs of any Series the SENs Collateral Account for such Series does not have
on deposit or the Paying Agent has not received from the Company immediately
available funds in Dollars sufficient to make the payments required to be made
on such SENs on such Payment Date, the Trustee shall transfer from the SENs
Reserve Account (or make a draw under a Qualified Letter of Credit delivered
pursuant to Section 403(5)) for such Series to such SENs Collateral Account or
the Paying Agent on such Payment Date immediately available funds in Dollars in
an amount which when added to the amounts of immediately available funds in
Dollars held in such SENs Collateral Account or held by such Paying Agent will
be sufficient to enable the Trustee or the Paying Agent to make such required
payments on such Payment Date. If any amounts are transferred from the SENs
Reserve Account for any Series pursuant to the immediately preceding sentence,
the Company shall, no later than the next Business Day after receipt of notice
from the Trustee that such amounts were transferred, deposit immediately
available funds in Dollars in such SENs Reserve Account in an amount sufficient
to cause the amount on deposit in the SENs Reserve Account at such time to be
equal to the Required Balance at such time.
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(4) Except as may be otherwise provided for any Series in a
Supplemental Indenture for such Series, during the occurrence and continuance of
a Retention Trigger Event, an Accelerated Amortization Event or a Debt Service
Retention Event, on each Payment Date the Trustee will apply the amounts
credited to the SENs Collateral Account for such Series in the following order
of priority:
(i) first, to the payment of interest on the SENs of
such Series which is past due;
(ii) second, to the payment of scheduled payments of
interest on such SENs then due and payable;
(iii) third, to the payment of any principal of such
SENs which is then past due;
(iv) fourth, to the payment of scheduled payments of
principal of such SENs then due and payable; and
(v) fifth to the payment of the amount of principal
of such SENs, if any, required to be prepaid pursuant to
Section 602 together with any Make-Whole Premium due on the
amount of such prepayment.
Absent a specific request from the Trustee, a Company Order
shall not be required in connection with the making of payments by the Trustee
hereunder. If so requested, the Trustee may rely conclusively and shall be fully
protected in its reliance on a Company Order that complies with this Section 402
with respect to payments to be made under clauses (2)(B) and (C), or clause (4)
of this Section 402, and the Trustee shall not be required to investigate any
fact or matter stated in such Company Order (but the Trustee shall verify the
accuracy of the calculation of the payments to be made under such clauses),
provided that if such Company Order is not received in a timely manner by the
Trustee, the Trustee shall nevertheless make payments with respect to such
clauses as set forth therein.
(5) Upon the SENs of a Series becoming or being declared due
and payable, all amounts on deposit in the SENs Collateral Account for such
Series will be applied in accordance with Section 608.
SECTION 403. SENS RESERVE ACCOUNT. (1) For each Series of
SENs, (except as otherwise provided in the Supplemental Indenture for such
Series) concurrently with the execution and delivery of the Supplemental
Indenture for such Series, the Trustee will establish a segregated note reserve
trust account (a "SENs Reserve Account"), denominated in Dollars, created and
maintained by the Trustee in its trust capacity in its corporate trust
department, into which monies will be deposited and from which monies will be
withdrawn as provided in this Indenture and the Supplemental Indenture for such
Series. On the Issue Date for such Series, the Company shall cause funds in an
amount equal to the Initial Deposit for such Series to be deposited in the SENs
Reserve Account for such Series.
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The Trustee shall credit such amount to the SENs Reserve Account upon receipt
thereof. The Trustee shall also credit the SENs Reserve Account with (i) amounts
to be transferred from the Collection Account pursuant to Section 402(2)(B) and
(ii) amounts transferred to the Trustee from the Company specifically for
deposit into the SENs Reserve Account. The Trustee shall transfer funds from the
SENs Reserve Account to the SENs Collateral Account as provided in Section
402(3) hereof. In the event that the amount on deposit in the SENs Reserve
Account is less than the Required Balance at any time, the Trustee shall
promptly give immediate notice thereof to the Company, Attention: Treasurer, by
telecopy (telecopy no. (▇▇▇) ▇▇▇-▇▇▇▇) of such deficiency.
(2) All monies and instruments credited to the SENs Reserve
Account for such Series from time to time shall constitute part of the SENs
Collateral for such Series and shall at all times be subject to the sole
dominion and control of the Trustee.
(3) Upon the SENs of a Series becoming or being declared due
and payable, all amounts on deposit in the SENs Reserve Account for such Series
shall be applied in accordance with Section 608.
(4) Except to the extent set forth hereunder, the Company
shall have no right to the funds credited to the SENs Reserve Account for such
Series. If at any time the Required Balance is reduced or there are funds in the
SENs Reserve Account for such Series in excess of the Required Balance, the
Trustee shall cause all such excess funds, if any, in the SENs Reserve Account
for such Series to be credited to the SENs Collateral Account for such Series
and disbursed on such date in accordance with Section 402 hereof. In addition on
the date on which the SENs of any Series are paid in full the Trustee shall
cause the amounts on deposit in the SENs Reserve Account for such Series to be
paid to the Company.
(5) The Company may deliver, or cause to be delivered, to the
Trustee a Qualified Letter of Credit in satisfaction of its obligations to fund
any SENs Reserve Account and the amount available to be drawn under such letter
of credit shall be deemed to constitute funds on deposit in such SENs Reserve
Account. Each such letter of credit shall provide (i) that it may be drawn upon
by the Trustee at any time a withdrawal is permitted or required to be made from
such SENs Reserve Account under this Indenture and (ii) if such letter of credit
is not renewed at least five Business Days prior to its expiry date, the Trustee
may draw the full amount of such letter of credit and deposit such amount in the
applicable SENs Reserve Account.
SECTION 404. STATEMENTS; INVESTMENT OF FUNDS. On or before the
fifteenth (15th) day of each calendar month the Trustee shall provide the
Company and the Rating Agencies with a written statement of (i) the balances in
the SENs Collateral Account and the SENs Reserve Account at the end of the
immediately preceding calendar month for each Series of SENs, (ii) the amounts
deposited into the SENs Collateral Account and the SENs Reserve Account,
respectively, for the immediately preceding calendar month for each Series of
SENs and (iii) the application of amounts withdrawn from the SENs Collateral
Account and the SENs Reserve Account, respectively, for the immediately
preceding calendar month for each Series of SENs. To the extent not applied as
provided in Section
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402 or 403 hereof, funds remaining on deposit in the SENs Collateral Account or
the SENs Reserve Account for such Series shall be invested by the Trustee, as
specified in written investment instructions given by a Responsible Officer or a
Person designated by such Responsible Officer in Eligible Investments, but if no
such investment instructions are provided, the Trustee shall, pursuant to
written standing instructions from the Company, invest such funds overnight in
Eligible Investments until such instructions are received from the Company and
the Trustee shall incur no liability with respect to such investments in
Eligible Investments; provided that after the occurrence and during the
continuance of a Trigger Event or an Event of Default, such investments shall be
invested by the Trustee in Eligible Investments selected by the Trustee. All
investments of amounts on deposit in the SENs Collateral Account for any Series
shall mature on the next Payment Date for such Series and all amounts invested
in the SENs Reserve Account for any Series shall have maturities such that an
amount at least equal to the Scheduled Debt Service due on the next Payment Date
for such Series shall mature on such Payment Date. The Company shall deliver to
the Trustee on the Issue Date of each Series of SENs written investment
instructions given by a Responsible Officer or a Person designated by such
Responsible Officer, specifying its initial investment instructions. On the
maturity date of each investment, the Company will provide written reinvestment
instructions to the Trustee. If such instructions are not provided, the Trustee
shall, pursuant to written standing instructions from the Company, invest such
funds overnight in Eligible Investments until further written instructions are
received from the Company and the Trustee shall incur no liability with respect
to such investments in Eligible Investments. All such Eligible Investments shall
be maintained in the name of the Trustee and pledged to the Trustee to be held
by it or on its behalf as part of the SENs Collateral hereunder, and the Trustee
shall be authorized to endorse any of such Eligible Investments in a manner
satisfactory to it, on behalf of the Company. The Trustee may rely conclusively
and shall be fully protected, as provided in Article Seven in its reliance on
written investment instructions given by a Responsible Officer or a Person
designated by such Responsible Officer. All earnings on Eligible Investments
shall be credited to the SENs Collateral Account or the SENs Reserve Account, as
the case may be, upon receipt thereof by the Trustee. Whenever the Trustee is
required to make any payment or transfer under this Indenture, the Trustee shall
have the right, and is hereby irrevocably authorized, to sell or otherwise
liquidate any Eligible Investments to the extent necessary to make such payment
or transfer and shall have no liability for and shall be fully protected from
and against any losses incurred in connection with such sale or liquidation.
SECTION 405. EXCLUDED EXPORT RECEIVABLES. The Company agrees
that it shall not exclude Receivables pursuant to clause 2(x) of Section 2.02(b)
of the Collateral Trust Agreement, if after giving effect to such exclusion, on
a pro forma basis, a Trigger Event would have occurred as of the most recent
month end under Section 601(a)(i) or (ii) if such Receivables (and the
Collections therefrom) had been excluded as of the first day of the three-month
and six-month period referred to in Sections 601(a)(i) and (ii), respectively.
In connection with an exclusion pursuant to such clause 2(x), the Company shall
provide the Trustee with a certificate of a Responsible Officer at least five
Business Days prior to the date such exclusion is to become effective,
certifying to the calculations set forth in the immediately preceding sentence.
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ARTICLE FIVE
SATISFACTION AND DISCHARGE
SECTION 501. SATISFACTION AND DISCHARGE OF INDENTURE. This
Indenture shall upon a Company Request cease to be of further effect with
respect to any Series of SENs (except as to any surviving rights of registration
of transfer or exchange of SENs of such Series herein expressly provided for and
except as otherwise specifically provided in this Indenture) and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such Series when
(1) either
(A) all SENs of such Series theretofore authenticated
and delivered (other than (i) SENs of such Series which have
been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306, (ii) SENs of such Series for
whose payment money has theretofore been deposited in trust
with the Trustee or any Paying Agent) have been delivered to
the Trustee for cancellation; or
(B) all SENs of such Series not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company or the Guarantor, in the case of (i), (ii) or
(iii) above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the
purpose an amount in Dollars sufficient to pay and discharge
the entire indebtedness on such SENs not theretofore delivered
to the Trustee for cancellation, for principal, premium, if
any, and Additional Amounts, if any, and interest to the date
of such deposit (in the case of SENs which have become due and
payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company or the Guarantor has paid or caused to be paid
all other sums payable hereunder by the Company with respect to such
Series; and
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(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such Series have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 706, the
obligations of the Company and the Guarantor to the Principal Paying Agent and
any other Paying Agent under Section 307(b), the obligations of the Trustee to
any Authenticating Agent under Section 713 and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of clause (1) of this
Section, the obligations of the Trustee under Section 502 and the last paragraph
of Section 1203 shall survive.
SECTION 502. APPLICATION OF TRUST MONEY. Subject to the
provisions of the last paragraph of Section 1203, all money deposited with the
Trustee pursuant to Section 501 shall be held in trust and applied by it, in
accordance with the provisions of the SENs and this Indenture, to the payment,
either directly or through any Paying Agent as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium, if any) and interest
for whose payment such money has been deposited with the Trustee; but such money
need not be segregated by the Trustee from other funds except to the extent
required by law.
ARTICLE SIX
TRIGGER EVENTS; ACCELERATED AMORTIZATION EVENTS;
EVENTS OF DEFAULT; REMEDIES
SECTION 601. TRIGGER EVENTS.
(a) "Trigger Event", with respect to SENs of a particular Series
whenever used herein, means any one of the following events (whatever the reason
for such Trigger Event and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body) and such other events as may be established with respect to the SENs of
such Series as contemplated in Section 301, continued for the period of time, if
any, and after the giving of notice, if any, designated in this Indenture or as
may be established with respect to such SENs as contemplated in Section 301, as
the case may be, unless such event is either inapplicable or is specifically
deleted or modified in, or pursuant to, the supplemental indenture under which
such Series of SENs is issued, as the case may be as contemplated in Section
301:
(i) as of the last day of any month falling at least three
months after the Issue Date for such Series, the ratio (the "Three
Month Ratio") of (x) aggregate Collections transferred to the SENs
Collateral Account with respect to such Series during the three
calendar months ending on such day to (y) the sum of all scheduled
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payments of principal of, and interest (including Additional Amounts)
on, such Series during the three calendar months ending on such day
shall be less than the Three Month Debt Service Coverage Ratio;
(ii) as of the last day of any month falling at least six
months after the Issue Date for such Series, the ratio (the "Six Month
Ratio") of (x) aggregate Collections transferred to the SENs Collateral
Account with respect to such Series during the six calendar months
ending on such day to (y) the sum of all scheduled payments of
principal of, and interest (including Additional Amounts) on, such
Series during the six calendar months ending on such day shall be less
than the applicable Six Month Debt Service Coverage Ratio;
(iii) An Event of Default described in clauses (i) or (xi) of
Section 603 shall have occurred and be continuing;
(iv) the Guarantor shall fail to comply with Section 1204 or
1205;
(v) the Guarantor or the Company shall fail to comply with
Section 901 or Section 1210;
(vi) the Guarantor or the Company shall fail to comply with
Section 1211 and such failure shall continue unremedied (A) for a
period of 10 days, if the Company or the Guarantor shall create, incur
or assume any Lien in violation of such Section, or (B) for a period of
45 days, if the Company or the Guarantor shall permit to exist any
Liens in violation of such Section, in each case after the earlier of
(x) the date a Company Notice shall have been given or (y) the date a
Responsible Officer of the Company shall have acquired actual knowledge
of such failure;
(vii) Any Event of Default described under subsection (viii)
of Section 603 shall have occurred and be continuing;
(viii) The Collateral Trustee ceases for any reason to have a
perfected first priority security interest in the Collateral, other
than Liens of the type set forth in clauses (iii), (viii) and (ix) of
the definition of "Permitted Liens", or the Trustee ceases for any
reason to have a perfected first priority security interest in the SENs
Collateral relating to such Series, other than Liens in favor of the
Collateral Trustee pursuant to the Collateral Trust Agreement and Liens
of the type set forth in clauses (iii), (viii) and (ix) of the
definition of "Permitted Liens", and any such cessation is not cured,
or Adequate Substitute Collateral is not provided, within 5 days after
the earlier of (x) the date a Company Notice shall have been given or
(y) the date a Responsible Officer of the Company shall have acquired
actual knowledge of such default; the requirement to provide "Adequate
Substitute Collateral" shall be deemed satisfied if (i) the Company
designates, in accordance with Section 2.04 of the Collateral Trust
Agreement, an Additional Percentage interest in the Export Receivables
for the benefit of such Series of SENs (thereby increasing the SENs
Total Collateral Percentage) equal to such percentage as may be
necessary to ensure that
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such Series of SENs will maintain the same interest (on a contracted
tonnage basis) in the Export Receivables (calculated without including
the Export Receivables as to which priority or perfection has ceased)
as such Series of SENs would have had but for the cessation of
perfection or priority or (ii) the Company shall provide such other
additional collateral to the Holders as may be in an amount and form
satisfactory to Holders of 51% or more of the aggregate principal
amount of the Outstanding SENs of such Series;
(ix) An Event of Default described in clause (x) of Section
603 shall have occurred and be continuing;
(x) On any date the Collateral Trustee shall fail to have
received fully executed Acknowledgements from the Company's customers
party to Export Contracts representing customers obligated to purchase
at least 80% of the aggregate amount of the Copper measured on a
tonnage basis, subject to all such Export Contracts on such date and
such failure shall continue for a period of 180 days (as measured on
the same basis during such 180 day period except the foregoing
calculation on each day during such period shall be made based on the
contracts in effect on such day); and
(xi) Any Governmental Authority of the Republic of Peru shall
have enacted any rule, regulation or law or taken any other action
which imposes restrictions on the free access to foreign exchange
affecting the Company, the Guarantor or the Peruvian Branch or which
prohibits the payment of Export Receivables into the Collection Account
and such rule, regulation, law or action shall have a Material Adverse
Effect.
(b) (i) Upon the occurrence and during the continuance of any
of the Trigger Events specified in clauses (a)(i), (a)(ii) or (a)(iii), the
Trustee on each Business Day shall retain in the SENs Collateral Account for
such Series the applicable Blocked Percentage of the Excess Collections on such
Business Day (the "Blocked Collections") as additional collateral for the SENs
of such Series.
(ii) Upon the occurrence and during the continuance of any of
the Trigger Events specified in clauses (a)(iv), (a)(v), (a)(vi),
(a)(vii), (a)(ix), (a)(x) or (a)(xi), the Trustee, if so directed by
Holders of 51% or more of the aggregate principal amount of the
Outstanding SENs of such Series, shall retain the Blocked Collections
in the SENs Collateral Account for such Series as additional collateral
for the SENs of such Series. Upon the occurrence and during the
continuance of any Trigger Event specified in clause (a)(viii), the
Trustee may and, if directed by holders of 51% or more of the aggregate
principal amount of the Outstanding SENs of such Series, shall, retain
the Blocked Collections in the SENs Collateral Account as additional
collateral for the SENs of such Series.
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(iii) A Trigger Event in respect of any Series may be
rescinded or waived by the affirmative vote of Holders of 51% or more
of the aggregate principal amount of the Outstanding SENs of such
Series.
(c) Except as provided in this paragraph (c), a Trigger Event
shall be deemed cured and not continuing if the event giving rise to such
Trigger Event is no longer continuing and the Company or the Guarantor has
provided the Trustee with a certificate of a Responsible Officer to such effect.
A Trigger Event under clause (a)(i) or (a)(ii) above shall be deemed cured and
not continuing if on the last day of any month (x) the Three Month Ratio for
such Series of SENs with respect to the immediately preceding period of three
months is at least equal to the applicable Three Month Debt Service Coverage
Ratio and (y) the Six Month Ratio for such Series of SENs with respect to the
immediately preceding period of six months is at least equal to the applicable
Six Month Debt Service Coverage Ratio and the Company or the Guarantor has
provided the Trustee with a certificate of a Responsible Officer to such effect.
A Trigger Event specified in clause (a)(iv) shall be deemed cured and not
continuing on the later of (x) the last day of a period of six months during
which Blocked Collections are retained in such SENs Collateral Account if on
such day such SENs Collateral Account contains an amount at least equal to the
principal and interest due for the next six Payment Dates under the SENs of such
Series (the "Six Month Debt Reserve Amount") and (y) the day on which the SENs
Collateral Account contains at least the Six-Month Debt Reserve Amount and the
Company or the Guarantor has provided the Trustee with a certificate of a
Responsible Officer to such effect; provided that in the case of a Trigger Event
specified in clause (a)(iv), if the Holders have elected the action set forth in
clause (ii) or (iii) of paragraph (d) below, a Trigger Event shall be deemed to
be continuing and not cured until the Guarantor is in compliance with Sections
1204 or 1205, as the case may be.
(d) Within 20 days of the day on which a Trigger Event under
clause (a)(iv) is deemed cured, the Trustee shall call a meeting of Holders of
the SENs of such Series at which the Holders shall be requested to vote to
direct the Trustee by a vote of the Holders of 51% or more of the aggregate
principal amount of the Outstanding SENs of such Series, (i) to apply the
Six-Month Debt Reserve Amount to the ratable prepayment of the SENs at the
redemption price set forth in Article Thirteen or a Supplemental Indenture
hereto or in such SEN or (ii) to declare that such Trigger Event constitutes an
Accelerated Amortization Event or (iii) to declare that such Trigger Event
constitutes an Event of Default or (iv) to release all Blocked Collections in
the SENs Collateral Account for such Series to the Company. Following the
application or release of funds under clause (i) or (iv) above, no further
breaches of Sections 1204 or 1205 shall form the basis of another Trigger Event
until such time as (x) in the case of a breach of Section 1204, Consolidated
Tangible Net Worth of the Guarantor is at least equal to US$875,000,000
following the breach of the covenant that gave rise to the Trigger Event, and
(y) in the case of a breach of Section 1205, the Capitalization Ratio of the
Guarantor is no greater than 50% following the breach of the covenant that gave
rise to the Trigger Event.
(e) On the date on which a Trigger Event is cured as specified
in paragraph (c) above (other than a Trigger Event set forth in clause (a)(iv)
above in which
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case the provisions of paragraph (d) of this Section 601 shall apply) the
amounts of Blocked Collections in the SENs Collateral Account shall be paid to
the Company.
SECTION 602. ACCELERATED AMORTIZATION EVENT; APPLICATION OF
FUNDS.
With respect to SENs of any Series, except as may be otherwise
specified in the Supplemental Indenture for the SENs of such Series, if (1) a
Trigger Event as set forth in subsection (a)(i) or (a)(ii) of Section 601 with
respect to such Series shall occur and not be cured within twelve months of the
occurrence thereof, an accelerated amortization event shall automatically occur
or (2) a Trigger Event as set forth in subsection (a)(vii) of Section 601 with
respect to such Series shall occur and be continuing and Holders of 51% or more
of the aggregate principal amount of the Outstanding SENs of such Series have
affirmatively voted (in a vote conducted separately from the vote taken to
direct the Trustee to retain Blocked Collections pursuant to Section 601(b)(ii))
to declare that such event constitutes an accelerated amortization event (in
each case, together with any Accelerated Amortization Event declared pursuant to
Section 601(d)(ii), an "Accelerated Amortization Event"), on each Payment Date
following the occurrence and continuance of an Accelerated Amortization Event,
the Company or the Guarantor shall be obligated to redeem the SENs of such
Series, together with a Make-Whole Premium on the amount redeemed, in an amount
equal to the amount on deposit in the SENs Collateral Account for such Series on
the day immediately preceding such Payment Date, after giving effect to the
payments set forth in clauses (2)(A) and (B), and clause (4)(i) through (iv) of
Section 402, minus the amount of the Make-Whole Premium with respect to such
redemption. An Accelerated Amortization Event with respect to any Series of SENs
may be rescinded or waived by affirmative vote of the Holders of 51% or more of
the aggregate principal amount of the Outstanding SENs of such Series. Following
the cure of the Trigger Event which gave rise to such Accelerated Amortization
Event, the resulting Accelerated Amortization Event shall be deemed cured and
there will be no further redemption of SENs of such Series resulting from such
Trigger Event.
SECTION 603. EVENTS OF DEFAULT. "Event of Default", with
respect to SENs of a particular Series whenever used herein, means any one of
the following events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) and such other events as
may be established with respect to the SENs of such Series as contemplated in
Section 301, continued for the period of time, if any, and after the giving of
notice, if any, designated in this Indenture or as may be established with
respect to such SENs as contemplated in Section 301, as the case may be, unless
such event is either inapplicable or is specifically deleted or modified in, or
pursuant to, the supplemental indenture under which such Series of SENs is
issued, as the case may be as contemplated in Section 301:
(i) default in the payment of any principal or premium, if
any, due on the SENs of such Series, whether at maturity, redemption or
otherwise, or default by the Company in the payment of any interest or
any Additional Amounts due on any SEN of such Series within five
business days of its scheduled payment date; or
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(ii) default in the performance or breach by the Guarantor of
any covenant set forth in Sections 1204 or 1205, and such default shall
result in a vote to declare such default an Event of Default pursuant
to Section 601(d)(iii); or
(iii) default by the Company or the Guarantor in the
performance or observance of any term, covenant or obligation contained
in Section 901 or Section 1210; or
(iv) default in the performance or breach by the Company or
the Guarantor, as the case may be, of: (a) any covenant set forth in
Sections 803, 1206, 1207, or 1209 and such failure shall continue
unremedied for a period of 45 days following the date a Company Notice
shall have been given (except that in the case of a failure to comply
with Section 803(4), such failure need only continue for a period of 10
days after the earlier of (x) the date a Company Notice shall have been
given or (y) the date a Responsible Officer of the Company shall have
acquired actual knowledge of such default), (b) the covenant contained
in Section 1211 and such failure shall continue unremedied (A) for a
period of 10 days, if the Company shall create, incur or assume any
Lien in violation of such covenant, or (B) for a period of 45 days, if
the Company shall permit to exist any Lien in violation of such
covenant, in each case after the earlier of (x) the date a Company
Notice shall have been given or (y) the date a Responsible Officer of
the Company shall have acquired actual knowledge of such default; (c)
the covenant contained in Section 1218 and such failure shall continue
unremedied (A) for a period of 15 days, with respect to the failure to
take any action required to be taken within the United States, or (B)
for a period of 45 days, with respect to the failure to take any action
required to be taken outside of the United States, after the earlier of
(x) the date a Company Notice shall have been given or (y) the date a
Responsible Officer of the Company shall have acquired actual knowledge
of such default; or (d) any other term, covenant or obligation of the
Company or the Guarantor with respect to the SENs of such Series in the
Collateral Trust Agreement, this Indenture, the Supplemental Indenture
relating to such Series, the SENs of such Series and the Guarantees
endorsed thereon not otherwise expressly defined as an Event of Default
in (i), (ii), (iii), or (iv)(a)(b) or (c) above for a period of more
than 60 days after the earlier of (x) the date a Company Notice shall
have been given or (y) the date a Responsible Officer of the Company
shall have acquired actual knowledge of such default; or
(v) any of the representations and warranties of the Company
or the Guarantor in any Transaction Document to which it is a party is
untrue or incorrect in any material respect on the date when made or
deemed made and shall not have been remedied within 45 days after a
Company Notice shall have been given; or
(vi) (a) there shall be commenced against the Guarantor, the
Company or any of their respective Material Subsidiaries, or the
Peruvian Branch, any case, proceeding or other action of a nature
referred to in clause (vii)(a) below which (A) results in the entry of
an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days,
or (b)
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there shall be commenced against the Guarantor, the Company or any of
their Material Subsidiaries, or the Peruvian Branch, any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial
part of its assets which results in the entry of an order for any such
relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or (c) the
Guarantor, the Company or any of their respective Material
Subsidiaries, or the Peruvian Branch, shall take any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (a) or (b) above;
or (d) the Guarantor, the Company or any of their respective Material
Subsidiaries, or the Peruvian Branch, shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as
they become due; or
(vii) the Guarantor, the Company or any of their respective
Material Subsidiaries, or the Peruvian Branch, shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for
it or for all or any substantial part of its assets, or the Guarantor,
the Company or any of their respective Material Subsidiaries, or the
Peruvian Branch, shall make a general assignment for the benefit of its
creditors; or
(viii) the Company or the Guarantor shall fail to deliver a
Notice and Acknowledgment to any customers located outside of Peru
under Export Contracts for the purchase of Copper if such failure is
attributable to an intention by the Company or the Guarantor to avoid
the security arrangements described herein and in the Collateral Trust
Agreement and such failure shall continue unremedied for a period of 10
days after the earlier of (x) the date a Company Notice shall have been
given or (y) the date a Responsible Officer of the Company shall have
acquired actual knowledge of such default; or
(ix) the Collateral Trustee ceases for any reason to have a
perfected first priority security interest in the Collateral, other
than Liens of the type set forth in clauses (iii), (viii) and (ix) of
the definition of "Permitted Liens", or the Trustee ceases for any
reason to have a perfected first priority security interest in the SENs
Collateral relating to such Series, other than Liens of the type set
forth in clauses (iii), (viii) and (ix) of the definition of "Permitted
Liens", and any such cessation is not cured, or Adequate Substitute
Collateral (within the meaning of Section 601(a) (viii) hereof) is not
provided, within 30 days after the earlier of (x) the date a Company
Notice shall have been given or (y) the date a Responsible Officer of
the Company shall have acquired actual knowledge of such default; or
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(x) the Company or the Guarantor shall (a) default in the
payment of the principal of or interest on, any note, bond, or other
instrument evidencing Debt aggregating (without duplication) in excess
of $30 million (other than the SENs of such Series) issued, assumed or
guaranteed by it, when and as the same shall become due and payable, if
such default shall continue for more than the period of grace, if any,
originally applicable thereto, or (b) default in the observance of any
other terms and conditions relating to any such Debt, if the effect of
such default is to cause such Debt to become due prior to its stated
maturity other than as a result of a Mandatory Prepayment Event; or
(xi) any Governmental Authority of the Republic of Peru shall
have condemned, nationalized, seized, or otherwise expropriated (for a
period greater than 60 days) all or substantially all of the Property
of the Company or the Guarantor; or
(xii) it becomes unlawful for the Company or the Guarantor to
perform any of its obligations under the Indenture, the SENs of such
Series or the Guarantees endorsed thereon or this Indenture if the
failure to so perform would result in a Material Adverse Effect; the
SENs of such Series, or the Guarantees endorsed thereon, cease to be
valid, binding and enforceable in accordance with their terms or the
binding effect or enforceability thereof shall be contested by the
Company or the Guarantor; or the Company or the Guarantor shall deny in
writing or by public announcement that it has any further liability or
obligation hereunder or in respect hereof.
SECTION 604. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT. If an Event of Default (other than an Event of Default specified in
subparagraph (vi) and (vii) above) occurs and is continuing with respect to the
SENs of any Series, then and in every such case the Holders of not less than 51%
in aggregate principal amount of the Outstanding SENs of such Series may declare
the principal amount of all the SENs of such Series to be due and payable
immediately, by a notice in writing to the Company, the Guarantor and to the
Trustee, and upon any such declaration such principal amount and any accrued
interest shall become immediately due and payable; provided, however, that if
any of the foregoing Events of Default constituted a Trigger Event, the holders
of the SENs shall conduct a vote (separate from the vote taken to direct the
Trustee to retain Blocked Collections, unless no vote was taken in connection
with a Trigger Event described in clause (a)(viii) of Section 601) to so declare
the SENs due and payable. If an Event of Default specified in subparagraph (vi)
or (vii) above occurs, the principal of and any accrued interest on all the SENs
of such Series then Outstanding shall become immediately due and payable, and
without presentment, demand, protest or notice of any kind all of which are
hereby expressly waived by the Company. In addition, immediately upon the SENs
of a Series becoming or being declared due and payable, 100% of all Collections
deposited in the SENs Collateral Account for such Series shall be retained
therein and applied in accordance with the provisions of Section 608.
At any time after a declaration of acceleration with respect
to SENs of any Series has been made and before a judgment or decree for payment
of the money due has
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been obtained by the Trustee as hereinafter in this Article provided, a decision
made by the affirmative vote of the Holders of not less than a majority in
aggregate principal amount of the Outstanding SENs of that Series may rescind
and annul such declaration and its consequences if:
(1) the Company or the Guarantor has paid or deposited with
the Trustee a sum sufficient to pay in Dollars (except as otherwise
specified pursuant to Section 301 for the SENs of such Series),
(A) all overdue interest on all Outstanding SENs of
that Series (or of all Series, as the case may be),
(B) all unpaid principal of, premium, if any, and
Additional Amounts, if any, on any Outstanding SENs of that
Series (or of all Series, as the case may be) which has become
due otherwise than by such declaration of acceleration, and
interest on such unpaid principal at the rate or rates
prescribed therefor in such SENs,
(C) to the extent that payment of such interest is
lawful, interest on overdue interest at the rate or rates
prescribed therefor in such SENs, and
(D) all sums paid or advanced by the Trustee and the
Collateral Trustee hereunder and under the Collateral Trust
Agreement for the benefit of the Holders of SENs of such
Series and the reasonable compensation, expenses,
disbursements and advances of the Trustee and the Collateral
Trustee, their agents and counsel for the benefit of the
Holders of SENs of such Series; and
(2) all Events of Default with respect to SENs of that Series
(or of all Series, as the case may be), other than the non-payment of
amounts of principal of (or premium, if any, on) or interest on SENs of
that Series (or of all Series, as the case may be) which have become
due solely by such declaration of acceleration, have been cured or
waived as provided in Section 615.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
The foregoing provisions shall be without prejudice to the
rights of each individual Holder to initiate an action against the Company or
the Guarantor for the payment of any principal, premium if any, Additional
Amounts and/or interest past due on any SEN, as the case may be.
SECTION 605. COLLECTION OF DEBT AND SUITS FOR ENFORCEMENT BY
TRUSTEE. The Company covenants that if:
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(1) default is made in the payment of any installment of
interest on any SEN as and when such interest becomes due and payable
and such default continues for a period of thirty (30) days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any SEN at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such SENs, the whole amount then due and payable on
such SENs for principal (and premium, if any) and interest, and interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
or rates prescribed therefor in such SENs, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company, the Guarantor or any other obligor upon
such SENs and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or the Guarantor or any other
obligor upon such SENs, wherever situated.
If an Event of Default with respect to SENs of any Series (or
of all Series, as the case may be) occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders of SENs of such Series (or of all Series, as the case may be) by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Notwithstanding anything to the contrary in this Indenture,
any Supplemental Indenture or any Transaction Document, no Realization Event and
no direction of Collections to an account other than the Collection Account may
be effected except in accordance with the Collateral Trust Agreement.
SECTION 606. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or the Guarantor or any other obligor upon
the SENs or the Property of the Company or the Guarantor or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the SENs shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company or the Guarantor for the payment of overdue principal premium, if
any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
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(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the SENs and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding,
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the SENs of any Series in any election
of a trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or of a
person performing similar functions in comparable proceedings, and
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 706.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
SENs or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding, except, as aforesaid,
to vote for the election of a trustee in bankruptcy or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or insolvency
proceedings or of a person performing similar functions in comparable
proceedings.
SECTION 607. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SENS. All rights of action and claims under this Indenture, the SENs or the
Guarantees may be prosecuted and enforced by the Trustee without the possession
of any of the SENs or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the SENs in respect of which such judgment has
been recovered.
SECTION 608. APPLICATION OF MONEY COLLECTED. Any money
collected by the Trustee pursuant to this Article (other than pursuant to
Sections 601 and 602) shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any) or interest, upon presentation of the
SENs, and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
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First: To the payment of all amounts due the Trustee under
Section 706;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any, on) and interest on the SENs in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such SENs for principal
(and premium, if any) and interest, respectively, and the payment of
any other SENs Secured Obligations relating to such SENs; and
Third: The balance, if any, to the Company.
SECTION 609. LIMITATION ON SUITS. Except as provided in the
last paragraph of Section 604, no Holder of any SEN of any Series shall have any
right to institute any proceeding, judicial or otherwise at law or in equity or
in bankruptcy, upon or under or with respect to this Indenture, or for the
appointment of a receiver or trustee in bankruptcy or other similar official, or
for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the SENs of
that Series;
(2) the Holders of not less than 51% in principal amount of
the Outstanding SENs of that Series shall have made written request to
the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for sixty (60) days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding, and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority or more in principal amount of the Outstanding SENs of that
Series;
it being understood and intended and being expressly covenanted by the Holders
of every SEN with every other Holder and the Trustee, that no one or more
Holders of SENs shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holder of SENs of the same Series, or to obtain or to seek
to obtain priority or preference over any other Holder or to enforce any right
under this Indenture, except in the manner herein provided and for the equal and
ratable and common benefit of all Holders of SENs of the same Series. For the
protection and enforcement of the provisions of this Section, each Holder and
the Trustee shall be entitled to such relief as can be given at law or in
equity.
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SECTION 610. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST. Notwithstanding any other provision in this
Indenture, the Holder of any SEN shall have the right, which is absolute and
unconditional, to receive payment, as provided herein (including, if applicable,
Article Fifteen) and in such SEN, of the principal of (and premium, if any, on)
and interest on, such SEN on the Stated Maturity expressed in such SEN (or, in
the case of redemption, on the Redemption Date), including any interest accrued
on any grace period provided in Section 603(i), and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 611. RESTORATION OF RIGHTS AND REMEDIES. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Guarantor, the Trustee and the Holders of SENs
shall be restored severally and respectively to their former positions hereunder
and thereafter all rights, remedies and powers of the Company, the Guarantor,
the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 612. RIGHTS AND REMEDIES CUMULATIVE. Except as any
rights or remedies may be limited by the Collateral Trust Agreement and except
as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen SENs in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders of
SENs is intended to be exclusive of any other right or remedy, and every right
and remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 613. DELAY OR OMISSION NOT WAIVER. No delay or
omission of the Trustee or of any Holder of any SEN to exercise any right or
remedy accruing pursuant to this Article shall impair any such right or remedy
or constitute a waiver of any Trigger Event, Accelerated Amortization Event or
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 614. CONTROL BY HOLDERS. Except as may be limited by
the Collateral Trust Agreement, with respect to the SENs of any Series, the
Holders of not less than 51% in principal amount of the Outstanding SENs of such
Series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, provided that (i) such direction shall not be
in conflict with any rule of law, and (ii) such Holders have provided the
Trustee with reasonable indemnity against the costs, expenses and liabilities to
be incurred in following such direction and that direction shall not be
otherwise than in
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accordance with law and the provisions of this Indenture and provided, further,
that (subject to the requirements of the Trust Indenture Act) the Trustee shall
have the right to decline to follow any such direction if the Trustee, being
advised by counsel, shall determine that the action or proceeding so directed
may not lawfully be taken or if the Trustee in good faith by a Responsible
Officer of the Trustee shall determine that the action or proceedings so
directed would involve the Trustee in personal liability or if the Trustee in
good faith shall so determine that the actions or forbearances specified in or
pursuant to such direction would be unduly prejudicial to the interests of
Holders so affected not joining in the giving of said direction, it being
understood that (subject to Section 701) the Trustee shall have no duty to
ascertain whether or not such actions or forbearances are unduly prejudicial to
such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction or directions by Holders of SENs
or the Transaction Documents.
SECTION 615. WAIVER OF PAST DEFAULTS. The Holders of not less
than a majority in principal amount of the Outstanding SENs of any Series may on
behalf of the Holders of all the SENs of such Series waive any past default,
except a default in respect of a covenant or provision hereof that cannot be
modified or amended without the unanimous affirmative vote of each Holder
affected as provided in Section 1002.
Upon any such waiver, any such default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 616. WAIVER OF STAY OR EXTENSION LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 617. TRUSTEE TO GIVE NOTICE OF TRIGGER EVENT,
ACCELERATED AMORTIZATION EVENT OR DEFAULT, BUT MAY WITHHOLD IN CERTAIN
CIRCUMSTANCES. Immediately after receipt of written notice of, but in no event
more than ninety (90) days after a Responsible Officer assigned to the Corporate
Trust Office of the Trustee obtains actual knowledge of, the occurrence of any
Potential Trigger Event, Trigger Event, Accelerated Amortization Event or
Default hereunder with respect to SENs of any Series (or of all Series, as the
case may be), the Trustee shall transmit by mail to all Holders of such Series
(or of all Series, as the case may be) as their names shall appear on the
Security Register, in the manner and to the extent provided in TIA Section
313(c), notice of such Potential Trigger Event, Trigger Event, Accelerated
Amortization Event or Default
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hereunder, unless such Potential Trigger Event, Trigger Event, Accelerated
Amortization Event or Default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of, or interest or Additional Amounts, if any, or premium, if any, on any SEN,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders. In addition, promptly upon
receipt of notice of, but in no event more than fifteen days after receipt of
notice of, the occurrence of a Trigger Event with respect to SENs of any Series
(other than a Trigger Event which becomes a Blocking Event without any action by
the Holders), the Trustee shall either call a meeting of Holders of SENS of such
Series or otherwise solicit votes of such Holders for purposes of deciding
whether such Holders will take any action under Section 601(b)(ii) with respect
to such Trigger Event; provided that the Company may elect to call such meeting
or solicit votes on its own by giving notice to the Trustee within 5 days of
giving the Trustee notice of such Trigger Event and if the Company so elects it
shall call such meeting or solicit votes in the time period set forth above.
SECTION 618. UNDERTAKING FOR COSTS. In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided that
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company or Trustee.
ARTICLE SEVEN
THE TRUSTEE
SECTION 701. DUTIES AND RESPONSIBILITIES OF THE TRUSTEE;
DURING DEFAULT; PRIOR TO DEFAULT. (a) With respect to the Holders of SENs of any
Series issued hereunder, the Trustee, prior to the occurrence of a Trigger
Event, Accelerated Amortization Event or Event of Default with respect to the
SENs of such Series of which a Responsible Officer of the Trustee has actual
knowledge and after the curing or waiving of all such Trigger Events,
Amortization Events or Events of Default which may have occurred with respect to
the SENs of such Series, undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture. In case a Trigger Event,
Accelerated Amortization Event or Event of Default with respect to the SENs of
such Series has occurred (which has not been cured or waived) the Trustee shall
exercise such of the rights and powers vested in it by this Indenture in respect
of the SENs of such Series, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
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(b) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own wilful misconduct, except that:
(i) prior to the occurrence of a Trigger Event, Accelerated
Amortization Event or Event of Default with respect to the SENs of any
Series and after the curing or waiving of all such Trigger Events,
Amortization Events or Events of Default with respect to the SENs of
such Series which may have occurred and of which a Responsible Officer
of the Trustee has actual knowledge:
(A) the duties and obligations of the Trustee with
respect to the SENs of such Series shall be determined solely
by the express provision of this Indenture, and the Trustee
shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(B) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders pursuant to Section 614 relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture.
(c) None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
SECTION 702. CERTAIN RIGHTS OF TRUSTEE. Subject to the
provisions of Section 701:
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(1) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting in reliance upon any
resolution, Officers' Certificate or any other certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(2) any request, direction, order or demand of the Company or
the Guarantor mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order (with respect to the Company) or
Guarantor Request or Guarantor Order (with respect to the
Guarantor)(unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
of the Company or the Guarantor may be sufficiently evidenced to the
Trustee by a copy thereof certified by the Secretary or a Director of
the Company (with respect to the Company) or the Guarantor (with
respect to the Guarantor);
(3) the Trustee may consult with counsel of its selection and
any advice of counsel or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(4) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of SENs of any Series pursuant to
this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(5) prior to the occurrence of a Trigger Event, Accelerated
Amortization Event or Event of Default hereunder and after the curing
or waiving of all Trigger Events, Accelerated Amortization Events or
Events of Default of which a Responsible Officer of the Trustee has
actual knowledge, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, appraisal, bond, debenture, security, or
other paper or document unless requested in writing so to do by the
Holders of not less than 25% of aggregate principal amount of all the
SENs of any Series affected then Outstanding; provided, that if the
payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable indemnity against such
expenses or liabilities as a condition to proceeding; and
(6) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys not regularly in its employ and the Trustee
shall not be responsible for any misconduct or
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negligence on the part of any agent or attorney appointed with due care
by it hereunder.
SECTION 703. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE
OF SENS. Other than as specifically provided in the Trustee recitals of this
Indenture, the recitals contained herein and in the SENs, except for the
Trustee's certificates of authentication, shall be taken as the statements of
the Company and the Guarantor, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of any
disclosure document or offerings materials or of the SENs or the Guarantees.
Neither the Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of SENs or the proceeds thereof.
SECTION 704. TRUSTEE MAY HOLD SENS. The Trustee, or any
Authenticating Agent, any Paying Agent, any Registrar or any other agent of the
Company or of the Trustee, in its individual or any other capacity, may become
the owner or pledgee of SENs with the same rights it would have if it were not
the Trustee or any Authenticating Agent, any Paying Agent, any Registrar or any
other agent of the Company or such agent and, subject to the requirements of the
Trust Indenture Act and Sections 708 and 712, if operative, may otherwise deal
with the Company and the Guarantor and receive, collect, hold and retain
collections from the Company and the Guarantor with the same rights it would
have if it were not the Trustee or any Authenticating Agent, any Paying Agent,
any Registrar or any other agent of the Company.
SECTION 705. MONEY HELD IN TRUST. Subject to the provisions of
Section 1203 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by law. Neither the Trustee nor any agent of the Company shall be under
any liability for interest on any moneys received by it hereunder except as
otherwise agreed with the Company.
SECTION 706. COMPENSATION AND INDEMNIFICATION OF TRUSTEE,
PAYING AGENT AND REGISTRAR AND ITS PRIOR CLAIM. (a) The Company covenants and
agrees to pay to the Trustee and to each Paying Agent and Registrar, and the
Trustee and each Paying Agent and Registrar shall be entitled to, such
compensation as set forth in any fee agreement between the Company and the
Trustee entered into in connection with the execution and delivery of this
Indenture by any party hereto or in connection with the issuance of any Series
of SENs (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) and the Company covenants and
agrees to pay or reimburse the Trustee and each Paying Agent and Registrar and
their respective predecessors upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of it in accordance
with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of their counsel and their
agents) except any such expenses, disbursement or advance as may arise from its
negligence or bad faith.
(b) The Company also covenants to indemnify the Trustee and
each Paying Agent and Registrar for, and to hold it harmless against, any and
all loss, liability, damage, claim or expense, including taxes (other than taxes
based on the income of the Trustee) incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or administration
of this Indenture or the trusts hereunder and its duties hereunder, including
any liability which the Trustee or Paying Agent may incur as a result of failure
to withhold, pay or report any tax, assessment or other governmental charge and
the costs and expenses of defending itself against or investigating any claim of
liability in the promises. The obligations of the Company under this Section to
compensate and indemnify the Trustee and each Paying Agent and Registrar and
their respective predecessors and to pay or reimburse the Trustee and each
Paying Agent and Registrar for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. References herein to the "Trustee" shall be
deemed to also refer to the Trustee acting in its capacity as Principal Paying
Agent.
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SECTION 707. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. The
Trustee shall at all times be a Person organized and doing business under the
laws of the United States or any State or the District of Columbia eligible to
act as Trustee under TIA Section 310(a)(1) and shall have a combined capital and
surplus of at least US$50,000,000. If such Person publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 708. QUALIFICATION OF TRUSTEE; CONFLICTING INTERESTS.
If the Trustee has or shall acquire any conflicting interest within the meaning
of the TIA, the Trustee shall either eliminate such conflicting interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the TIA and this Indenture. To the extent permitted by the TIA,
the Trustee shall not be deemed to have a conflicting interest by virtue of
being a trustee under this Indenture with respect to SENs of more than one
Series.
SECTION 709. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
TRUSTEE OR CO-TRUSTEE. (a) The Trustee, or any Trustee or trustees hereafter
appointed, may at any time resign with respect to the SENs of one or more Series
by giving 90 days written notice of resignation to the Company and by mailing
written notice thereof by first-class mail, postage prepaid, to all Holders at
their last addresses as they shall appear on the Security Register. Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor trustee or trustees with respect to such Series by written instrument
in duplicate, executed by authority of the Board of Directors of the Company,
one copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee or trustees. If no successor trustee shall have
been so appointed and have accepted appointment within thirty (30) days after
the mailing of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor trustee,
or any Holder who has been a bona fide Holder of a SEN or SENs for at
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least six months may, subject to the provisions of Section 618 and the Trust
Indenture Act, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In the case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provision of
Section 708 and TIA Section 310(b) after written request therefor by
the Company and the Guarantor, or by any Holder who has been a bona
fide Holder for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 708 and shall fail to resign after written
request therefor by the Company and the Guarantor, or by any Holder; or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee with respect to all
or any Series of SENs and by written instrument, in duplicate, executed by order
of the Board of Directors of the Company, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 709 and the Trust Indenture Act, any Holder
who has been a bona fide Holder for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all SENs and the
appointment of a successor trustee.
The Company may, in its discretion, remove the Trustee with
respect to all or any Series of SENs by written instrument, in duplicate,
executed by order of the Board of Directors of the Company, one copy of which
instrument shall be delivered to the Trustee so removed, and one copy to the
successor trustee, provided that the appointment of a successor trustee with
respect to all or any Series of SENs pursuant to this paragraph will not take
effect unless (i) the Company gives written notice to the Trustee at least 45
days prior to the effective date of such appointment specifying (A) the name of
the successor trustee and (B) that the Holders of 51% or more of the aggregate
principal amount of Outstanding SENs of such Series have the right to vote
against the appointment of such successor trustee and to be effective such vote
must occur within 30 days of receipt of such notice by the Holders, (ii) the
Trustee or the Company provides a copy of such notice to the Holders of such
Series of SENs at least 30 days prior to the effective date of such appointment
and either calls a meeting of the Holders of such Series of SENs or otherwise
solicits votes of such Holders for the purpose of deciding whether such Holders
will take any action with respect to the appointment of the successor trustee
and (iii) the Holders of 51% or more of the aggregate principal amount of the
Outstanding SENs of such Series do not vote against the removal of the Trustee
within 30 days of receiving such notice from the Trustee or the Company.
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(c) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the SENs of one or more Series, the Company, by a
Board Resolution, shall promptly appoint a successor trustee or trustees with
respect to the SENs of that or those Series (it being understood that any such
successor trustee may be appointed with respect to the SENs of one or more or
all of such Series and that at any time there shall be only one Trustee with
respect to the SENs of any particular Series). If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor trustee with respect to the SENs of any Series shall be appointed by
Act of the Holders of a majority in principal amount of the Outstanding SENs of
such Series delivered to the Company and the retiring Trustee, the successor
trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor trustee with respect to the SENs of such Series and to that
extent supersede the successor trustee appointed by the Company. If no successor
trustee with respect to the SENs of any Series shall have been so appointed by
the Company or the Holders and accepted appointed in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Security of such
Series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor trustee with respect to the SENs of such Series.
(d) It is the purpose of this Indenture that there shall be no
violation of any law of any jurisdiction denying or restricting the right of
banking corporations or associations to transact business as an indenture
trustee in such jurisdiction. It is recognized that in case of litigation under
this Indenture, any indenture supplemental hereto or any other agreement,
instrument or document entered into in connection with this Indenture or any
Supplemental Indenture, and in particular in case of the enforcement of any
default, or in case the Trustee deems that by reason of any present or future
law of any jurisdiction it may not exercise any of the powers, rights or
remedies herein granted to the Trustee or hold title to any Property granted,
assigned, conveyed or otherwise transferred to the Trustee pursuant to any Lien
securing SENs of any Series, or take any other action which may be desirable or
necessary, the Trustee may appoint an additional institution as a separate
indenture trustee or co-trustee with respect to this Indenture or with respect
to the SENs of any Series issued pursuant to this Indenture. In the event that
the Trustee appoints an additional institution as a separate trustee or
co-trustee, each and every remedy, power, right, claim, demand, cause of action,
immunity, estate, title, interest and lien expressed or intended by this
Indenture to be exercised by or vested in or conveyed to the Trustee with
respect thereto shall be exercisable by and vest in such separate trustee or
co-trustee but only to the extent necessary to enable such separate indenture
trustee or co-trustee to exercise such powers, rights and remedies, and every
covenant and obligation necessary to the exercise thereof by such separate
trustee or co-trustee shall run to and be enforceable by either of them. Such
co-trustee may be removed by the Trustee at any time, with or without cause.
Should any instrument in writing from the Company be required by the separate
trustee or co-trustee so appointed by the Trustee for more fully and certainly
vesting in and confirming to it such properties, rights, powers, trusts, duties
and obligations, any and all such instruments in writing shall, on request, be
executed, acknowledged and delivered by the Company. In case any separate
trustee or co-trustee, or a successor to either, shall become incapable of
acting, resign or be removed, all the estates, properties, rights, powers,
trusts, duties and obligations of such
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separate trustee or co-trustee, so far as permitted by law, shall vest in and be
exercised by the Trustee until the appointment of a new trustee or successor to
such separate trustee or co-trustee.
(e) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the SENs of any Series and each
appointment of a successor trustee or co-trustee with respect to the SENs of any
Series to the Holders of SENs of such Series in the manner provided for in
Section 106 and to the Rating Agencies. Each notice shall include the name of
the successor trustee or co-trustee with respect to the SENs of such Series and
the address of its Corporate Trust Office.
(f) The Holders of a majority in aggregate principal amount of
Outstanding SENs of any Series may at any time remove the Trustee or any
co-trustee and appoint a successor trustee or co-trustee by delivering to the
Trustee or co-trustee so removed, to the successor trustee or co-trustee so
appointed and to the Company the evidence provided for in Section 104 of the
action in that regard taken by the Holders.
(g) No resignation or removal of the Trustee and no
appointment of a successor trustee pursuant to any of the provisions of this
Section 709 shall become effective until the acceptance of appointment by the
successor trustee as provided in Section 710.
SECTION 710. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In
case of the appointment hereunder of a successor trustee with respect to all
SENs, every such successor trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
trustee with respect to the SENs of one or more (but not all) Series, the
Company, the Guarantor, the retiring Trustee and each successor trustee with
respect to the SENs of one or more Series shall execute and deliver a
Supplemental Indenture wherein each successor trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the SENs of that or those Series to which the appointment of such successor
trustee relates, (2) if the retiring Trustee is not retiring with respect to all
SENs, shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the SENs of that or those Series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the
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administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such Supplemental Indenture shall
constitute such Trustees as co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such Supplemental Indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the SENs of that or those Series to
which the appointment of such successor trustee relates; but, on request of the
Company or the Guarantor, or any successor trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor trustee all property and
money held by such retiring Trustee hereunder with respect to the SENs of that
or those Series to which the appointment of such successor trustee relates.
Whenever there is a successor trustee with respect to one or more (but less than
all) Series of SENs issued pursuant to this Indenture, the terms "Indenture" and
"SENs" shall have the meanings specified in the provisos to the respective
definitions of those terms in Section 101 which contemplate such situation. The
Trustee shall not be liable for the actions of any successor Trustee. The
Trustee shall be paid all amounts owing to it upon its resignation or removal.
(c) Upon request of any such successor trustee, the Company
and the Guarantor as required, shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all
rights, powers and trusts referred to in paragraph (a) or (b) of this Section,
as the case may be.
(d) No successor trustee shall accept its appointment unless
at the time of such acceptance such successor trustee shall be qualified and
eligible under this Article.
SECTION 711. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder;
provided that such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any SENs shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the SENs so authenticated with the same effect
as if such successor trustee had itself authenticated such SENs; and in case at
that time any of the SENs shall not have been authenticated, any successor
trustee may authenticate such SENs either in the name of any predecessor
hereunder or in the name of the successor trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the SENs or in
this Indenture; provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate SENs in the name of
any predecessor trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
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SECTION 712. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY. If and when the Trustee shall be or become a creditor of the Company or
the Guarantor (or any other obligor under the SENs), the Trustee shall be
subject to the provisions of the TIA regarding the collection of claims against
the Company or the Guarantor (or any such other obligor).
SECTION 713. APPOINTMENT OF AUTHENTICATING AGENT. At any time
when any of the SENs remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more Series of SENs which
shall be authorized to act on behalf of the Trustee to authenticate SENs of such
Series and the Trustee shall give written notice of such appointment to all
Holders of SENs of the Series with respect to which such Authenticating Agent
will serve, in the manner provided for in Section 106. SENs so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder. Any
such appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, and a copy of such instrument shall be
promptly furnished to the Company and the Guarantor. Wherever reference is made
in this Indenture to the authentication and delivery of SENs by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and the Guarantor and shall at all times be a
corporation organized and doing business under the laws of the United States,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than US$50,000,000 and subject to supervision or
examination by federal or state authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect specified in this Section.
Any Person into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall be
a party, or any corporation succeeding to the corporate agency or corporate
trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee, the Company and the Guarantor. The
Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent, the Company and the
Guarantor. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee may
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appoint a successor Authenticating Agent which shall be acceptable to the
Company and the Guarantor and shall give written notice of such appointment to
all Holders of SENs of the Series with respect to which such Authenticating
Agent will serve, in the manner provided for in Section 106. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 706.
If an appointment with respect to one or more Series is made
pursuant to this Section, the SENs of such Series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the SENs of the Series designated therein
referred to in the within-mentioned Indenture.
Citibank, N.A., as Trustee
By
--------------------------------
as Authenticating Agent
By
--------------------------------
Authorized Officer
SECTION 714. REGISTRAR AND PAYING AGENTS. Insofar as such
provisions may be applicable, the Registrar, Principal Paying Agent and any
other Paying Agent shall enjoy without duplication the same protections,
immunities and indemnities as are provided for in this Article Seven with
respect to the Trustee.
ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
SECTION 801. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of SENs, by receiving and holding the same, agrees with the
Company, the Guarantor and the Trustee that none of the Company, the Guarantor
or the Trustee or any agent of either of them shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders in accordance with TIA Section 312, regardless of the source from
which such information was derived, and that the Trustee
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shall not be held accountable by reason of mailing any material pursuant to a
request made under TIA Section 312(b).
SECTION 802. REPORTS BY TRUSTEE. (a) Within sixty (60) days
after May 15 of each year commencing with the first May 15 after the first
issuance of SENs pursuant to this Indenture, the Trustee shall transmit to the
Holders of SENs, in the manner and to the extent provided in TIA Section 313(c),
a brief report dated as of such May 15 if required by TIA Section 313(a). A copy
of each such report shall, at the time of such transmission to Holders, be filed
by the Trustee with each stock exchange upon which the SENs are listed, with the
Commission and with the Company and the Guarantor. The Company and the Guarantor
shall promptly notify the Trustee when any SENs are listed on any stock
exchange.
(b) The Trustee shall deliver to each Rating Agency a copy of
any written statement received from the Collateral Trustee listing
Acknowledgements received by the Collateral Trustee during the immediately
preceding calendar month.
(c) Upon receipt thereof, the Trustee shall provide copies to
each Rating Agency of all reports, notices and other documents that are provided
to the Trustee by the Company or the Guarantor pursuant to the provisions of
Section 803 hereof.
SECTION 803. REPORTS. The Company and the Guarantor shall:
(1) file with the Trustee, within thirty (30) days after the
Company and/or the Guarantor are required to file the same with the
Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company and the Guarantor may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Exchange Act; or, if the Company and the Guarantor are not
required to file information, documents or reports pursuant to either
of such Sections, then they shall file with the Trustee and the
Commission in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a
security listed and registered on a national securities exchange as may
be prescribed from time to time in such rules and regulations (whether
or not the SENs of any Series are so listed);
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company and the Guarantor with the
conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations, but only to the extent the same
are not satisfied by delivery of the certificate required by clause (5)
below;
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(3) transmit or cause the Trustee to transmit to all Holders,
in the manner and to the extent provided in TIA Section 313(c), such
summaries of any information, documents and reports, if any, required
to be filed by the Company and the Guarantor pursuant to paragraphs (1)
and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission;
(4) furnish to the Trustee written notice of the occurrence of
any Trigger Event, Accelerated Amortization Event or Event of Default
or any event which after notice or lapse of time or both would become a
Trigger Event, Accelerated Amortization Event or Event of Default and a
description of the nature and period of existence thereof and the
action, if any, the Company is taking or proposes to take with respect
thereto within five Business Days of a Responsible Officer becoming
aware of any such event;
(5) furnish to the Trustee concurrently with the delivery of
quarterly and annual financial statements referred to in Section 803(1)
above, a certificate of a Responsible Officer of the Guarantor (i)
stating that, to the best of such Responsible Officers' knowledge,
during such period (A) neither the Guarantor nor the Company has
changed its name, its principal place of business or its chief
executive office without complying with the requirements of this
Indenture and the Transaction Documents with respect thereto and (B) no
Default, Potential Trigger Event, Trigger Event or Event of Default has
occurred which is then continuing except as specified in such
certificate and (ii) setting forth in reasonable detail the
calculations required to determine compliance with Sections 1204 and
1205 hereof and any other financial covenant set forth in the
Supplemental Indenture for such Series and not contained herein;
(6) furnish to the Trustee promptly following any request
therefor, such other information regarding the operations, business
affairs and financial condition of the Guarantor or the Company, or
compliance with the terms of this Indenture, as the Trustee may
reasonably request; and
(7) promptly notify the Rating Agencies of (x) any change in
the Collateral Trustee or the Trustee with respect to any Series of
SENs and (y) any transaction under Section 901 of the Indenture.
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 901. COMPANY AND GUARANTOR MAY CONSOLIDATE, ETC., ONLY
ON CERTAIN TERMS. Neither the Company nor the Guarantor shall enter into any
merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer or otherwise dispose of, all or substantially all of its property,
business or assets (including, in the case of the Guarantor, the Capital Stock
of the Company), except that (a) so long as no Default, Potential Trigger
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Event, Trigger Event or Event of Default would result therefrom, the Guarantor
and the Company may merge, consolidate or amalgate with or into each other,
provided that, if the Guarantor is the surviving entity in such merger,
consolidation or amalgamation the Guarantor shall have complied with the
applicable requirements of clause (b)(ii) below, and (b) the Guarantor or the
Company may merge, consolidate or amalgamate with another Person if (i) no
Default, Potential Trigger Event, Trigger Event or Event of Default shall have
then occurred and be continuing or would result therefrom, (ii) the Guarantor or
the Company, as the case may be, is the surviving entity in such consolidation
or merger or, if such other Person is the surviving entity in such consolidation
or merger, such other Person (the "Successor Corporation") shall (A) be
organized under the laws of the United States of America or any State thereof
and shall expressly assume by a supplemental indenture satisfactory in form to
the Trustee executed and delivered to the Trustee by the Successor Corporation
the due and punctual payment of the principal of, premium, if any, and interest
and Additional Amounts, if any, on all of the SENs according to their terms,
and, in the case of a Successor Corporation to the Company, the due and punctual
performance of all of the covenants and obligations of the Company under the
SENs and the Indenture, and in the case of a Successor Corporation to the
Guarantor, the due and punctual performance of all of the covenants and
obligations of the Guarantor under the Guarantees and the Indenture and (B) the
Successor Corporation, if any, succeeds to and becomes substituted for the
Company or the Guarantor, as the case may be, with the same effect as if it had
been named in the SENs as the Company or in the Guarantees as the Guarantor and
(iii) the Trustee shall have received a certificate of a Responsible Officer of
the Guarantor or the Company, as the case may be, to the effect that each of the
conditions set forth in clauses (i) and (ii) above have been satisfied.
In the case of any such consolidation, merger or amalgamation,
such changes in phraseology and form (but not in substance) may be made in the
SENs thereafter to be issued as may be appropriate.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 1001. SUPPLEMENTAL INDENTURES WITHOUT VOTE OF HOLDERS.
Without the vote or approval of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, the Guarantor, when authorized by or pursuant to
a Board Resolution and the Trustee, at any time and from time to time, may enter
into one or more Supplemental Indentures, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the
Company or the Guarantor and the assumption by any such successor of
the covenants of the Company or the Guarantor contained herein, in the
SENs, or in the Guarantees or
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(2) to add to the covenants of the Company or the Guarantor
for the benefit of the Holders of all or any Series of SENs (and if
such covenants are to be for the benefit of less than all Series of
SENs, stating that such covenants are being included solely for the
benefit of such Series) or to surrender any right or power herein
conferred upon the Company or the Guarantor; or
(3) to add any additional Trigger Events, Accelerated
Amortization Events or Events of Default (and applicable grace periods
with respect to such additional events and to specify the remedies
available to the Trustee upon the occurrence of any such additional
event) (and if such Trigger Events, Accelerated Amortization Events or
Events of Default are to be for the benefit of less than all Series of
SENs, stating that such Trigger Events, Accelerated Amortization Events
or Events of Default are being included solely for the benefit of such
Series); or
(4) to add to or change or eliminate any of the provisions of
this Indenture; provided that any such addition, change or elimination
shall neither apply to any SEN of any Series created prior to the
execution of such supplemental indenture and entitled to the benefits
of such provision nor modify the rights of the Holder of any such SEN
with respect to such provision and shall become effective with respect
to any particular Series of SENs only when there is no SEN Outstanding
of such Series created prior to the execution of such Supplemental
Indenture which is entitled to the benefit of such provision; or
(5) to secure the SENs or the Guarantees; or
(6) to establish the form or terms of SENs and the applicable
accounts of any Series as permitted by Sections 201 and 301, and
Article Four or of the related Guarantees as permitted by Section 203;
or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the SENs of one or
more Series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 709(d); or
(8) to close this Indenture with respect to the authentication
and delivery of additional Series of SENs; or
(9) 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 under this Indenture; provided such action
shall not adversely affect the interests of the Holders of SENs of any
Series in any material respect; or
(10) to comply with requirements of the Commission in order to
effect or maintain the qualification under the TIA; or
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(11) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any Series of SENs pursuant to Sections
501, 1502 and 1503; provided that any such action shall not adversely
affect the interests of the Holders of SENs of such Series or any other
Series of SENs in any material respect.
SECTION 1002. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the Consent of the Holders of not less than 51% of the aggregate principal
amount of all Outstanding SENs of any Series, the Company, when authorized by or
pursuant to a Board Resolution, the Guarantor, when authorized by or pursuant to
a Board Resolution, and the Trustee may enter into a Supplemental Indenture or
Indentures for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture which affect such Series
of SENs or of modifying in any manner the rights of the Holders of SENs of such
Series under this Indenture; provided, however, that no such Supplemental
Indenture shall, without the consent of the Holder of each Outstanding SEN of
such Series affected thereby,
(i) change the Stated Maturity of any installment of principal
of, or any installment of interest on, any SEN;
(ii) reduce the principal amount or rate of interest on or any
premium payable upon the redemption or prepayment of any SEN including
discharge of repayment of principal of or interest on any SEN;
(iii) reduce the percentage in principal amount of Outstanding
SENs of any Series the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is
required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences provided
for in this Indenture;
(iv) change the percentage rules established for the Holders
which are entitled to request the calling of a Holder's meeting,
adopting resolutions at meetings of Holders or regarding the quorum
necessary to constitute a meeting;
(v) modify any of the provisions of this Section and Section
614, except to increase any such percentage;
(vi) change the place for payment of principal of, or premium
or interest on, any SEN to a place outside of the United States of
America;
(vii) impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof or any
Redemption Date or Repayment Date therefor; or
(viii) change the requirement to pay Additional Amounts.
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A Supplemental Indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular Series of SENs, or which
modifies the rights of the Holders of SENs of such Series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of SENs of any other Series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed Supplemental Indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 1003. EXECUTION OF SUPPLEMENTAL INDENTURES. In
executing, or accepting the additional trusts created by, any Supplemental
Indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
Supplemental Indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 1004. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the
execution of any Supplemental Indenture under this Article, this Indenture shall
be modified in accordance therewith, and such Supplemental Indenture shall form
a part of this Indenture for all purposes; and every Holder of SENs theretofore
or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 1005. CONFORMITY WITH TIA. Every Supplemental
Indenture executed pursuant to this Article shall conform to the requirements of
the TIA as then in effect.
SECTION 1006. REFERENCE IN SENS TO SUPPLEMENTAL INDENTURES.
SENs of any Series authenticated and delivered after the execution of any
Supplemental Indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such Supplemental Indenture. If the Company and the Guarantor
shall so determine, new SENs of any Series so modified as to conform, in the
opinion of the Trustee, the Company, and the Guarantor, to any such Supplemental
Indenture, may be prepared and executed by the Company (with the Guarantees
endorsed thereon by the Guarantor) and authenticated and delivered by the
Trustee in exchange for Outstanding SENs of such Series.
SECTION 1007. NOTICE OF SUPPLEMENTAL INDENTURES. Promptly
after the execution by the Company and the Trustee of any Supplemental Indenture
pursuant to the provisions of Section 1002, the Company shall give notice
thereof to the Holders of each Outstanding SEN affected, in the manner provided
for in Section 106, setting forth in general terms the substance of such
Supplemental Indenture. Any failure of the Company to give such notice, or any
defect therein, shall not, however, in any way, impair or affect the
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validity of any such Supplemental Indenture. The Trustee shall provide each
Rating Agency with a copy of each Supplemental Indenture.
ARTICLE ELEVEN
REPRESENTATIONS AND WARRANTIES
Each of the Company and the Guarantor represents and warrants
(as to itself) to the Trustee on the date hereof and for the benefit of the
holders of SENs of a Series on the Issue Date for such Series, as follows:
SECTION 1101. CORPORATE ORGANIZATION AND EXISTENCE. Each of
the Company and the Guarantor (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the corporate power and authority, and the legal right (including under the
Concessions), to own and operate its property, to lease the property it operates
as lessee and to conduct the business in which it is currently engaged, and (c)
is duly qualified as a foreign corporation and in good standing under the laws
of each jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification, except where the failure to
be so qualified and/or in good standing could not, in the aggregate reasonably
be expected to result in a Material Adverse Effect, and (d) is in compliance
with all Requirements of Law (other than Environmental Laws) except to the
extent that the failure to comply therewith would not, in the aggregate, result
in a Material Adverse Effect. All obligations of the Company under this
Indenture and the other Transaction Documents are also (without any further
action by the Company or the Peruvian Branch) obligations of the Peruvian
Branch, and such obligations, and the security interests created under the
Transaction Documents, are enforceable against the Peruvian Branch (and its
assets), subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditor's rights generally.
SECTION 1102. CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO
CONTRAVENTION. (a) The execution, delivery and performance by each of the
Company and the Guarantor of each of the Transaction Documents to which it is a
party are within each of the Company's and the Guarantor's corporate powers,
have been duly authorized by all necessary corporate action, and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the certificate of incorporation of each of the Company and the
Guarantor or of any material agreement or other material instrument binding upon
each of the Company or the Guarantor or result in the creation or imposition of
any Lien on any asset of each of the Company or the Guarantor, except for Liens
created by the Transaction Documents.
SECTION 1103. NO CONSENTS. No consent or authorization of,
approval by, notice to, filing with or other act by or in respect of, any
governmental authority or any other Person is required in connection with the
execution, delivery, performance, validity or enforceability of the Transaction
Documents, other than such as have been obtained and are
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in full force and effect and except to the extent that the failure to obtain any
such consent or authorization, to make any such filing, give any such notice or
take any such action would not, in the aggregate, result in a Material Adverse
Effect.
SECTION 1104. BINDING EFFECT. Each of the Transaction
Documents (other than the SENs and the Guarantees thereon) to which the Company
is a party has been duly executed and delivered by the Company; and the SENs of
each Series and the Guarantees will be duly executed by the Company and the
Guarantor; and each constitutes a legal, valid and binding agreement (or in the
case of the SENs or the Guarantees, will constitute when executed and delivered,
a legal, valid and binding obligation) of the Company, enforceable in accordance
with its terms except as may be limited by bankruptcy, insolvency,
reorganization and other similar laws affecting the enforcement of creditors'
rights generally and general equitable principles (whether enforcement is sought
by proceedings in equity or at law).
SECTION 1105. [INTENTIONALLY OMITTED]
SECTION 1106. FINANCIAL STATEMENTS. The consolidated balance
sheet of the Guarantor and its consolidated subsidiaries as at December 31, 1996
and the related consolidated statements of earnings, cash flows and changes in
common stockholders' equity for the fiscal year ended on such date, reported on
by Coopers & ▇▇▇▇▇▇▇ LLP, fairly present in all material respects the
consolidated financial position of the Guarantor and its consolidated
subsidiaries as at such date, and the consolidated results of their operations
and consolidated cash flows for the fiscal year then ended. All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with U.S. GAAP applied consistently throughout the
periods involved (except as disclosed therein).
SECTION 1107. PAYMENT OF TAXES. Each of the Company and the
Guarantor has filed or caused to be filed all tax returns which, to their
knowledge, are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority, other than any the amount or validity of
which are currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with U.S. GAAP have been provided
on the books of the Company and the Guarantor, as the case may be, and except to
the extent any such failure would not, individually or in the aggregate, result
in a Material Adverse Effect.
SECTION 1108. ENVIRONMENTAL MATTERS. Each of the Company and
the Guarantor is in compliance with the terms of the Environmental Laws to the
extent applicable to it from time to time, except to the extent that any failure
to so comply would not result in a Material Adverse Effect or such compliance is
being contested in good faith by appropriate proceedings.
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SECTION 1109. OWNERSHIP AND LEASES OF PRINCIPAL PROPERTIES.
The Company owns, or has valid and enforceable rights to use or operate, each of
the Principal Properties.
ARTICLE TWELVE
COVENANTS
SECTION 1201. PAYMENT OF PRINCIPAL AND INTEREST. The Company
covenants and agrees for the benefit of each Series of SENs that it will duly
and punctually pay the principal of and interest and Additional Amounts, if any,
and premium, if any, on the SENs of that Series in accordance with the terms of
SENs of such Series, this Indenture and any Supplemental Indenture.
SECTION 1202. MAINTENANCE OF OFFICE OR AGENCY. The Company
shall maintain in the Borough of Manhattan, The City of New York, and in each
Place of Payment specified for each Series of SENs, an office or agency where
SENs of that Series may be presented or surrendered for payment, where SENs of
that Series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the SENs of that
Series and this Indenture may be served.
The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the SENs of one or more Series may be presented
or surrendered for any or all such purposes and may from time to time rescind
any such designation; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for SENs of any
Series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
SECTION 1203. MONEY FOR SENS PAYMENTS TO BE HELD IN TRUST. The
Company will cause each Paying Agent (other than the Trustee) for any Series of
SENs to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any, on) and interest on SENs of such Series in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided;
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(2) give the Trustee notice of any default by the Company (or
any other obligor upon the SENs of such Series) in the making of any
payment of principal of (or premium, if any, on) or interest on the
SENs of such Series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which sums were held by such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such sums.
Except as provided in the SENs of any Series, any money
deposited with the Trustee or any Paying Agent in trust for the payment of the
principal of (and premium, if any, on) or interest on any SEN of any Series, and
remaining unclaimed for two years after such principal (and premium, if any) or
interest has become due and payable shall be paid to the Company on Company
Request, or shall be discharged from such trust; and the Holder of such SEN
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 1204. CONSOLIDATED TANGIBLE NET WORTH. The Guarantor
shall not permit or cause its Consolidated Tangible Net Worth at any time to be
less than US$750,000,000.
SECTION 1205. CAPITALIZATION RATIO. The Guarantor shall not
permit or cause its Capitalization Ratio at any time to be greater than 0.50 to
1.00.
SECTION 1206. COMPLIANCE WITH LAWS AND PAMA.
(a) Each of the Company and the Guarantor shall comply with
all Requirements of Law (other than Environmental Laws) except where
(i) the failure to comply therewith would not result in a Material
Adverse Effect or (ii) the need to comply is being contested in good
faith by appropriate proceedings.
(b) Each of the Company and the Guarantor shall comply with
all applicable Environmental Laws and obtain and comply with and
maintain any and all licenses, authorizations, approvals,
notifications, registrations or permits required by applicable
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Environmental Laws, except where (i) the failure to do so would not
result in a Material Adverse Effect or (ii) the need to comply
therewith is being contested in good faith by appropriate proceedings.
SECTION 1207. CONDUCT OF BUSINESS AND MAINTENANCE OF
EXISTENCE. Each of the Company and the Guarantor shall continue to engage in
business of the same general type as now conducted by it and preserve, renew and
keep in full force and effect its corporate existence and maintain all material
rights, privileges, Concessions and franchises necessary or desirable in the
normal conduct of its business except as otherwise permitted pursuant to Article
Nine and except to the extent that the failure to maintain any such rights,
privileges, Concessions and franchises would not, individually or in the
aggregate, result in a Material Adverse Effect.
SECTION 1208. AGGREGATE PROGRAM OUTSTANDINGS AND ADDITIONAL
SECURED OBLIGATIONS; TOTAL COLLATERAL PERCENTAGES. Neither the Company nor the
Guarantor shall permit, at any time (including, without limitation, as a result
of the application of the provisions of Section 2.02(c) of the Collateral Trust
Agreement or Section 1214 hereof), (a) the sum of (i) the Outstanding Principal
Amount at such time and (ii) the Attributable Principal Amount of Additional
Secured Obligations then outstanding to exceed the Program Amount then in effect
or (b) the sum of (i) the SENS Total Collateral Percentage, (ii) the Credit
Facility Total Collateral Percentage and (iii) the aggregate Designated Total
Collateral Percentages for all Additional Secured Obligations to exceed 100% at
any time.
SECTION 1209. MAINTENANCE OF PROPERTY; INSURANCE. Each of the
Company and the Guarantor shall keep all material property necessary for the
conduct of its business in good working order and condition (ordinary wear and
tear excepted); maintain such insurance with financially sound and reputable
insurance companies (including captive or affiliated insurance companies) or, to
the extent consistent with prudent business practice, through programs of self
insurance, as the Company and the Guarantor shall determine to be adequate
(taking into account both the commercial availability and cost of such
insurance); and furnish to the Trustee, upon written request, full information
as to the insurance carried.
SECTION 1210. LIMITATION ON CERTAIN SALES OF ASSETS. Except to
the extent permitted under Section 901 or 1211, neither the Company nor the
Guarantor shall convey, sell, lease, assign, transfer or otherwise dispose of
(a) any Principal Property (an "Asset Disposition") to any party (other than to
the Guarantor or the Company, as the case may be, provided that no Principal
Property may be conveyed, sold, assigned, transferred or otherwise disposed of
to the Guarantor, unless the Guarantor shall have executed and delivered such
amendments and supplements to the Transaction Documents and such other
agreements and documents as the Trustee may reasonably require in connection
with the assumption by the Guarantor of all or a portion of the obligations of
the Company (including in respect of Liens on any Export Receivables generated
by the operation of such Principal Property) under this Indenture and the other
Transaction Documents with respect to such Principal Property (all such
amendments, supplements and other agreements and documents to be in form and
substance satisfactory to the Trustee)), if such Asset Disposition would
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have a Material Adverse Effect or (b) except as otherwise permitted in the
Collateral Trust Agreement, any Export Receivables.
SECTION 1211. LIENS. (a) Neither the Company nor the Guarantor
shall create, incur, assume, or permit to exist any Liens on any Principal
Property, except for Permitted Liens.
(b) Neither the Company nor the Guarantor shall create, incur,
assume or permit to exist any Liens on the Export Receivables, other than Liens
in favor of the Collateral Trustee pursuant to the Collateral Trust Agreement
and Liens of the type set forth in clauses (iii), (viii) and (ix) of the
definition of "Permitted Liens."
(c) Neither the Company nor the Guarantor shall create, incur,
assume or permit to exist any Liens on its Copper inventory other than (i) liens
securing working capital financings or similar obligations (provided that the
aggregate principal amount of Debt secured by such Liens shall not exceed $100
million at any time outstanding) and (ii) Liens of the type set forth in clauses
(iii), (viii) and (ix) of the definition of "Permitted Liens."
SECTION 1212. MAINTENANCE OF BOOKS AND RECORDS. The Guarantor
shall maintain books, accounts and records in accordance with U.S. GAAP and the
applicable rules and regulations of the Commission.
SECTION 1213. INSPECTION OF PROPERTY; BOOKS AND RECORDS;
DISCUSSIONS. Each of the Company and the Guarantor shall, upon reasonable
advance notice, permit representatives of the Trustee, to visit and inspect any
of its properties and examine and make abstracts from any of its books and
records at a reasonable time and as may reasonably be desired and to discuss the
business, operations, properties and financial and other condition of the
Company and the Guarantor with officers and employees of the Company and the
Guarantor and with its independent certified public accountants, provided that
prior to the occurrence and continuance of a Trigger Event or an Event of
Default, such visits shall not occur more than once a year.
SECTION 1214. EXPORT SALES. On or prior to January 15 of each
calendar year, the Company shall deliver to the Collateral Trustee and the
Trustee a certificate of a Responsible Officer (the "Annual Sales Certificate")
certifying for such calendar year (i) the budgeted amount of short tons of
Copper to be sold to customers located within Peru (other than sales effected
through any Peruvian Governmental Authority to customers located outside Peru)
("Domestic Sales"), (ii) the budgeted amount of short tons of Copper to be sold
to customers located outside Peru (including sales effected through any Peruvian
Governmental Authority to customers located outside Peru, but excluding Copper
to be sold under Excluded Export Contracts for such year) (the "Certified Export
Sales") and (iii) the aggregate budgeted amount of short tons of Copper to be
sold pursuant to Excluded Export Contracts (the sum of clauses (i), (ii) and
(iii) (the "Total Sales")). If, in any calendar year when the Certified Export
Sales are less than 320,000 short tons, the ratio of Domestic Sales to Total
Sales, expressed as a percentage (the "Domestic Percentage") exceeds 20% (such
percentage, to the extent exceeding 20%, shall hereinafter be referred to as the
"Excess
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Domestic Percentage"), then the Program Amount in effect for such year shall be
reduced for such year by an amount equal to the product of the Excess Domestic
Percentage and the Program Amount which would otherwise have been in effect on
the first day of such year (after giving effect to the application of Section
2.02 of the Collateral Trust Agreement). If during any calendar year the Company
becomes aware that the Domestic Percentage will be increased as a result of an
increase in Domestic Sales in excess of the budgeted amount set forth on the
Annual Sales Certificate previously delivered for such calendar year (calculated
on a pro rata basis for the portion of the calendar year remaining) and the
Domestic Percentage will, as a result thereof, exceed 20% (or increase further
above 20%), then, within 5 Business Days of becoming so aware, the Company shall
deliver to the Collateral Trustee and the Trustee a certificate of a Responsible
Officer in replacement for the Annual Sales Certificate previously delivered and
the Program Amount shall be recalculated on a pro rata basis as set forth in the
preceding sentence for the remainder of the calendar year; provided, however,
that for purposes of this sentence the increase in Domestic Sales shall be
deemed to equal the amount by which the increase in the Domestic Sales exceeds
the increase, if any, in the amount of the Total Sales, each as set forth in the
Annual Sales Certificate previously delivered for such calendar year.
SECTION 1215. DESIGNATION AND TERMINATION OF DESIGNATION OF
ADDITIONAL PERCENTAGES UNDER THE COLLATERAL TRUST AGREEMENT. (a) At any time
after the occurrence and during the continuation of a Trigger Event, Default or
Event of Default with respect to a Series of SENs, the Company shall not
designate any Additional Percentage for the benefit of any Secured Parties
(other than for such Series of SENs) pursuant to Section 2.04(a) of the
Collateral Trust Agreement unless the Company shall designate a ratable
(calculated on the basis of the Basic Collateral Percentages of the Secured
Parties) Additional Percentage for the benefit of such Series of SENs pursuant
to such Section.
(b) If the Company shall designate any Additional Percentage
for the benefit of any Series of SENS pursuant to Section 2.04(a) of the
Collateral Trust Agreement, the Company shall not notify the Collateral Trustee
pursuant to Section 2.04(b) of the Collateral Trust Agreement that such
Additional Percentage shall no longer be designated for the benefit of such
Series of SENs unless (a) at least five Business Days prior to the delivery of
such notice, the Company shall have delivered a certificate of a Responsible
Officer to the Trustee and the Collateral Trustee demonstrating that, as of the
last day of the immediately preceding month, the ratio of (x) aggregate
Collections transferred to the SENs Collateral Account for such Series during
the three month period ending on such day to (y) the sum of all scheduled
payments of principal of, and interest (including Additional Amounts) on, such
SENs for such three month period (calculated after giving effect to the removal
of such additional percentage) would have been at least 3.00 to 1.00, and such
certificate of a Responsible Officer shall include a certification of such
calculations and (b) no Event of Default with respect to such Series shall have
then occurred and be continuing.
SECTION 1216. LIMITATION ON ADDITIONAL DEBT SECURED BY EXPORT
RECEIVABLES. Neither the Company nor the Guarantor shall issue any Debt secured
by Export Receivables which would cause the aggregate outstanding principal
amount of Debt issued on or after the date hereof secured by the Export
Receivables to exceed $750 million
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(not including the aggregate principal amount of Debt secured by Export
Receivables arising under Export Contracts covering an aggregate annual amount
up to 10,000 short tons of copper) unless prior to the issuance of such Debt
each of the Rating Agencies then rating any Series of SENs confirms that such
issuance shall not cause a downgrading in their respective then current rating
of such Series of SENs.
SECTION 1217. ADDITIONAL AMOUNTS. The Company will pay to the
Holder of any SEN of a Series additional amounts as provided in this Section
1217 and will also pay any other additional amounts provided for in the SENs of
a Series and in accordance with Section 301 (such additional amounts provided in
this Section 1217 and any such other additional amounts provided for in the SENs
of a Series and in accordance with Section 301 being herein referred to as
"Additional Amounts").
All payments in respect of the SENs, including, without
limitation, payments of principal, interest, and premium, if any, shall be made
by the Company without withholding or deduction for or on account of any present
or future taxes, duties, levies, or other governmental charges of whatever
nature (collectively "Taxes") now or hereafter imposed or established by or on
behalf of Peru or any political subdivision thereof or taxing authority therein
(any such tax, a "Peruvian Tax"), unless the Company is required to withhold or
deduct a Peruvian Tax by law (or, if the Company by law may elect to withhold or
deduct a Peruvian Tax or to pay such Peruvian Tax directly, the Company has
elected to withhold such Peruvian Tax). In the event any Peruvian Taxes are so
imposed or established, the Company shall pay such Additional Amounts as may be
necessary in order that the net amounts receivable by the holders after any
withholding or deduction in respect of such Peruvian Tax shall equal the
respective amounts of principal, interest and premium, if any, which would have
been receivable in respect of the SENs in the absence of such withholding or
deduction; provided, however, that no such Additional Amounts shall be payable
(i) to, or on behalf of, a holder who is not (a) a corporation, partnership or
trust organized under the laws of the United States or a State thereof or (b) a
corporation or other entity organized or established under the laws of any other
jurisdiction outside Peru, (ii) to, or on behalf of, a holder for or on account
of any such Peruvian Taxes that have been imposed by reason of such holder (or a
fiduciary or settlor of, or possessor of a power over, such holder if such
holder is an estate or a trust), having some present or former connection with
Peru, any political subdivision of Peru or any territory or possession of Peru
or area subject to its jurisdiction, other than the mere holding or owning of
such SEN or the receipt of principal or interest or premium, if any, in respect
thereof, including, without limitation, such holder (or such fiduciary, settlor
or possessor of power over) being or having been a citizen or resident thereof,
or being or having been present therein, or being or having been engaged in
trade or business therein, or having had a permanent establishment therein,
(iii) to, or on behalf of, a holder for or on account of any such Peruvian Taxes
that would not have been imposed but for the presentation by the holder of a SEN
for payment (where presentation is required) on a date more than 30 days after
the date on which such payment became due and payable or the date on which
payment thereof is duly provided for, whichever occurs later, except to the
extent that the holder would have been entitled to such Additional Amounts on
presenting such SEN for payment on the last date of such period of 30 days, (iv)
with respect to any estate, inheritance, gift, sales, transfer, asset or
personal
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property tax or any similar tax, assessment or governmental charge, (v) to, or
on behalf of, a holder for or on account of any such Peruvian Taxes which are
actually paid otherwise than by withholding or deduction from payments on or in
respect of any SEN, (vi) to, or on behalf of, a holder of any SEN to the extent
that such holder is liable for such Peruvian Taxes that would not have been
imposed but for the failure of such holder to comply with any certification,
identification, information, documentation or other reporting requirements if
(a) such compliance is required by Peruvian law, regulation or administrative
practice or any applicable treaty as a precondition to relief or exemption from,
or reduction in the rate of, deduction or withholding of, such Peruvian Taxes,
(b) at least 30 days prior to the first Payment Date with respect to which such
requirements shall apply, the Company notifies or causes the Paying Agent to
notify all holders of the SENs of such Series or their nominees that such
holders will be required to comply with such requirements and (c) such
requirements are not materially more onerous to such holders (in form, in
procedure or in the substance of information disclosed) than comparable
information or other reporting requirements imposed under United States tax law,
regulation and administrative practice (such as IRS Forms 1001, W-8 and W-9),
(vii) to, or on behalf of, a holder for or on account of any such Peruvian Taxes
imposed because the holder is a significant stockholder of the Company or the
Guarantor, or (viii) with respect to any combination of items (i), (ii), (iii),
(iv), (v), (vi) and (vii) above. Furthermore, no Additional Amounts shall be
paid with respect to any payment on a SEN to a holder that is a fiduciary or
partnership or other than the sole beneficial owner of such payment to the
extent that a beneficiary or settlor with respect to such fiduciary or a member
of such partnership or beneficial owner would not have been entitled to receive
the Additional Amounts had such beneficiary, settlor, member or beneficial owner
been the holder.
Whenever in this Indenture there is a reference, in any
context, to the payment of the principal of or interest on, or in respect of,
any SEN, such payment shall be deemed to include the payment of Additional
Amounts provided for in this Section to the extent that, in such context,
Additional Amounts are, were or would be payable in respect of such payment
pursuant to the provisions of this Section and express mention of the payment of
Additional Amounts (if applicable) in any provision hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.
At least 10 days prior to the first Payment Date with respect
to that Series of SENs, and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change in the
percentage of withholding set forth in the below-mentioned certificate of a
Responsible Officer, the Company will furnish the Trustee and the Company's
principal Paying Agent or Paying Agents, if other than the Trustee, with a
certificate of a Responsible Officer instructing the Trustee and such Paying
Agent or Paying Agents whether such payment of principal of and any premium or
interest on the SENs of that Series shall be made to holders of SENs of that
Series (or, if applicable, in the case of Taxes imposed or established by the
United States or any political subdivision thereof or taxing authority therein,
holders of SENs of that Series who are United States Aliens) without withholding
for or on account of any Taxes described in this Section 1217 or in the SENs of
that Series. If any such withholding shall be required, then such certificate of
a
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Responsible Officer shall specify by country the amount, if any, required to be
withheld on such payments to such holders of SENs and the Company or the
Guarantor will pay to the Trustee or such Paying Agent the Additional Amounts
required by or pursuant to this Section 1217. The Company covenants to indemnify
the Trustee and any Paying Agent for, and to hold them harmless against, any
loss, liability or expense reasonably incurred without negligence or bad faith
on their part arising out of or in connection with actions taken or omitted by
any of them in reliance on any certificate of a Responsible Officer furnished
pursuant to this Section.
In addition, the Company shall pay any stamp, issue,
registration, documentary or other similar taxes and duties, including interest
and penalties, payable in Peru or the United States or any political subdivision
thereof or taxing authority of or in the foregoing in respect of the creation,
issue and offering of the SENs. The Company shall also pay and indemnify the
holders from and against all court taxes or other taxes and duties, including
interest and penalties, paid by any of them in any jurisdiction in connection
with any action permitted to be taken by the holders to enforce the obligations
of the Company under the SENs or this Indenture.
References to "holders" of SENs in this Section 1217 or in
Section 1308 shall include the beneficial owners of such SENs.
SECTION 1218. PRESERVATION OF SECURITY INTEREST. The Company
shall, at its own cost and expense, make all filings and recordings in the
United States, Peru, if any, and any other applicable jurisdictions (including,
without limitation, financing statements and continuation statements) and take
all other steps in the United States, Peru, if any, and any other applicable
jurisdictions necessary to preserve, perfect and protect the Collateral
Trustee's interest in the Collateral and the Trustee's interest in the SENs
Collateral for each Series, and will defend, at its own cost and expense, the
right, title and interest of the Collateral Trustee in and to the Collateral and
the right, title and interest of the Trustee in and to the SENs Collateral for
each Series.
SECTION 1219. FURTHER ASSURANCES. (a) Each of the Company and
the Guarantor will, at its own cost and expense, promptly perform or cause to be
performed any and all acts and execute or cause to be executed any and all
documents, instruments and agreements as may be reasonably required, in the
opinion of the Trustee, to enable the Trustee to exercise and enforce its rights
under this Indenture and the other Transaction Documents and to carry out the
intent of the Transaction Documents.
(b) In the event that any direct or indirect Subsidiary (other
than the Company) of the Guarantor sells Copper (which is produced at any of the
Principal Properties or the SX/EW Facility (as defined in the Collateral Trust
Agreement) from copper mined or leached at any of the Principal Properties or
from purchased copper (each such Subsidiary, a "Copper Subsidiary")), the
Guarantor shall cause, immediately after any such sale, each Copper Subsidiary
to enter into an amendment to the Collateral Trust Agreement to grant a security
interest to the Collateral Trustee (for the benefit of the Secured Parties) in
such Copper Subsidiary's Export Contracts, Export Receivables and Proceeds
thereof and
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any other interests described in Section 2.01(a) of the Collateral Trust
Agreement and to take the other actions with respect to such Copper Subsidiary's
Export Receivables, Export Contracts and proceeds thereof required to be taken
by the Issuer under the Collateral Trust Agreement with respect to Export
Receivables, Export Contracts and the Proceeds therof, including, without
limitation, the notification obligations and obligations with respect to
Acknowledgments set forth in Section 3.02 of the Collateral Trust Agreement, and
the obligations to perfect the security interest granted under the Collateral
Trust Agreement.
ARTICLE THIRTEEN
REDEMPTION OF SENS
SECTION 1301. APPLICABILITY OF ARTICLE. SENs of any Series
which are redeemable before their Stated Maturity shall be redeemable in
accordance with the terms of such SENs and (except as otherwise specified as
contemplated by Section 301 for SENs of any Series) in accordance with this
Article. The Company may redeem the SENs of any Series at any time, in whole or
in part, at a Redemption Price equal to (i) the outstanding principal amount of
the SENs so redeemed plus (ii) accrued and unpaid interest to the date of
redemption plus (iii) the Make-Whole Premium.
SECTION 1302. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The
election of the Company to redeem any SENs shall be evidenced by or pursuant to
a Board Resolution. In case of any redemption at the election of the Company,
the Company shall, at least sixty (60) days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of SENs
of such Series to be redeemed and shall deliver to the Trustee such
documentation and records as shall enable the Trustee to select the SENs to be
redeemed pursuant to Section 1303. In the case of any redemption of SENs prior
to the expiration of any restriction on such redemption provided in the terms of
such SENs or elsewhere in this Indenture, the Company shall furnish the Trustee
with an Officers' Certificate evidencing compliance with such restriction.
SECTION 1303. SELECTION BY TRUSTEE OF SENS TO BE REDEEMED. If
less than all the SENs of any Series are to be redeemed, the particular SENs to
be redeemed shall be selected not more than sixty (60) days prior to the
Redemption Date by the Trustee, from the Outstanding SENs of such Series not
previously called for redemption, by such method as the Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions of the principal of SENs of such Series; provided, however, that no
such partial redemption shall reduce the portion of the principal amount of a
SEN not redeemed to less than the minimum authorized denomination for SENs of
such Series established pursuant to Section 301.
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The Trustee shall promptly notify the Company and the
Guarantor in writing of the SENs selected for redemption and, in the case of any
SENs selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of SENs shall
relate, in the case of any SEN redeemed or to be redeemed only in part, to the
portion of the principal amount of such SEN which has been or is to be redeemed.
SECTION 1304. NOTICE OF REDEMPTION. Except as otherwise
specified as contemplated by Section 301, notice of redemption shall be given in
the manner provided for in Section 106 not less than thirty (30) nor more than
sixty (60) days prior to the Redemption Date, to each Holder of SENs to be
redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding SENs of any Series are to
be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular SENs to be
redeemed,
(4) that on the Redemption Date the Redemption Price (together
with accrued interest, if any, to the Redemption Date payable as
provided in Section 1306) will become due and payable upon each SEN, or
the portion thereof, to be redeemed and, if applicable, that interest
thereon will cease to accrue on and after said date,
(5) the place or places where such SENs maturing after the
Redemption Date, are to be surrendered for payment of the Redemption
Price,
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of SENs to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request made not
less than 15 days prior to the latest date such notice of redemption may be
given, by the Trustee in the name and at the expense of the Company.
SECTION 1305. DEPOSIT OF REDEMPTION PRICE. Not later than one
Business Day before any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent an amount of money in Dollars (except as
otherwise specified pursuant to Section 301 for the SENs of such series and
except, if applicable, as provided in Sections 307(a), 307(b) and 307(c))
sufficient to pay the Redemption Price of, and accrued interest on, all the SENs
which are to be redeemed on that date.
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SECTION 1306. SENS PAYABLE ON REDEMPTION DATE. Notice of
redemption having been given as aforesaid, the SENs so to be redeemed shall, on
the Redemption Date, become due and payable at the Redemption Price therein
specified in Dollars (except as otherwise specified pursuant to Section 301 for
the SENs of such series and except, if applicable, as provided in Sections
307(a), 307(b) and 307(c)) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such SENs shall
cease to bear interest. Upon surrender of any such SEN for redemption in
accordance with said notice maturing after the Redemption Date, such SEN shall
be paid by the Company at the Redemption Price, together with accrued interest,
if any, to the Redemption Date; provided, however, that installments of interest
on SENs whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such SENs, or one or more Predecessor SENs, registered
as such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any SEN called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate of interest set
forth in the SEN.
SECTION 1307. SENS REDEEMED IN PART. Any SEN which is to be
redeemed only in part (pursuant to the provisions of this Article) shall be
surrendered at a Place of Payment therefor (with, if the Company, the Guarantor
or the Trustee so requires, due endorsement with signature medallion guarantee
by, or a written instrument of transfer in form satisfactory to the Company, the
Guarantor and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing with signature medallion guarantee), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such SEN without service charge, a new SEN or SENs of the same Series
(with Guarantee or Guarantees duly endorsed thereon), of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the SEN so
surrendered.
SECTION 1308. REDEMPTION FOR TAX REASONS. (a) In addition to
any redemption provisions that may be specified as contemplated by Section 301
with respect to SENs of any Series (except as otherwise provided in a
Supplemental Indenture for such Series), if, at any time the Company or the
Guarantor is or will become obligated for any reason (i) to pay any Additional
Amounts in excess of those attributed to the Peruvian tax of 1% imposed on
interest payments to holders of SENs of such Series that are not domiciled in
Peru for Peruvian tax purposes ("Excess Additional Amounts") or (ii) to pay a
tax in excess of 1% on payments of interest to holders of SENs of such Series
that are not domiciled in Peru for Peruvian tax purposes directly to the
applicable Peruvian taxing authority (an "Interest Tax"; and any such excess
Interest Tax, "Excess Interest Tax"), and such obligation cannot be avoided by
the Company or the Guarantor taking reasonable measures available to it, then,
subject to subsection (e) of this Section 1308, the SENs of such Series will be
redeemable as a whole (or as a part, as provided in subsection (d) of this
Section 1308) at the option of the Company or the Guarantor at any time upon not
less than thirty (30) nor more than sixty (60) days' notice given to the Holders
in an amount equal to the sum of (i) the
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principal amount outstanding at the time, plus (ii) accrued interest to the date
of prepayment, plus (iii) any Additional Amounts. The Company or the Guarantor,
as the case may be, will be considered to be obligated to pay such Excess
Additional Amounts despite the fact that the Company or the Guarantor, as the
case may be, could have, in lieu of withholding from payments of interest and
paying Additional Amounts, paid the tax directly to the applicable Peruvian
taxing authority.
(b) In order to effect a redemption of the SENs of any Series
under this Section, the Company shall deliver to the Trustee an Opinion of
Peruvian counsel (which shall be outside counsel) reasonably acceptable to the
Trustee confirming the tax obligation at least 45 days prior to redemption. No
notice of redemption pursuant to this Section 1308 may be given earlier than
ninety (90) days prior to the earliest date on which the Company or the
Guarantor would be obligated to pay such Excess Additional Amounts or Excess
Interest Tax in respect of SENs of such Series.
(c) If the holders of two-thirds or more of the aggregate
principal amount of the Outstanding SENs of such Series waive their rights if
any to Excess Additional Amounts payable by the Company or the Guarantor, then
(i) the Company or the Guarantor shall not be obligated to pay Excess Additional
Amounts to any holders of SENs of such Series and (ii) the Company or the
Guarantor may not redeem the SENs of such Series pursuant to this Section 1308.
In the case of Excess Interest Tax, if the holders of two-thirds or more of the
aggregate principal amount of the Outstanding SENs of such Series agree to
receive payments net of Excess Interest Tax, then (i) payments of interest to
all holders will be reduced by the Excess Interest Tax and (ii) the Company or
the Guarantor may not redeem the SENs pursuant to this Section 1308.
(d) Subject to subsection (e) of this Section 1308, the SENs
of a Series may be redeemed in part at the option of the Company or the
Guarantor if, with respect to the SENs of such Series, the Company or the
Guarantor would be obligated to pay Excess Additional Amounts or Excess Interest
Tax aggregating at least $1,000,000 per annum. Except as provided in subsection
(e) of this Section 1308, any partial redemption of SENs of any Series pursuant
to this Section 1308 shall be limited to no more than the aggregate principal
amount of SENs of such Series necessary to be redeemed in order to reduce the
Company's or the Guarantor's payment of Additional Amounts or Interest Tax in
respect of SENs to an amount equal to the Additional Amounts, or Interest Tax,
as the case may be, payable with respect to the 1% Peruvian tax imposed on
interest payments on such Series of SENs (calculated without giving effect to
such partial redemption).
(e) If with respect to the SENs of any Series, the Company or
the Guarantor is or will become obligated to pay Excess Additional Amounts or
Excess Interest Tax only with respect to SENs held by a certain type (or types)
of holders (the "Affected Holders"), the Company and the Guarantor may not
redeem pursuant to this Section 1308 the SENs of such Series held by holders who
are not Affected Holders, but at the option of the Company or the Guarantor the
SENs of such Series held by Affected Holders may be redeemed in accordance with
the procedures set forth in this Section 1308. If the Company or the Guarantor,
as the case may be, seeks to redeem the SENs of a Series held by any Affected
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Holders as provided in this subsection (e), such Affected Holders will cooperate
with the Company or the Guarantor, as the case may be, to effect such a
redemption. Furthermore, if the SENs of such Series are held in a Global
Security, the Company or the Guarantor, as the case may be, may, to the extent
necessary, exchange the SENs of such Series for certificated SENs in order to
effect a redemption pursuant to this subsection (e), provided that the Company
or the Guarantor, as the case may be, will as promptly as practicable
subsequently exchange such certificated SENs for SENs held in a Global Security,
except for the SENs held by the Affected Holders.
ARTICLE FOURTEEN
[INTENTIONALLY OMITTED]
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1501. COMPANY'S OPTION TO EFFECT DEFEASANCE OR
COVENANT DEFEASANCE. Except as otherwise specified as contemplated by Section
301 for SENs of any Series, the provisions of this Article Fifteen shall apply
to each Series of SENs, and the Company may, at its option by Board Resolution,
effect defeasance of the SENs of or within a Series under Section 1502, or
covenant defeasance of or within a Series under Section 1503 in accordance with
the terms of such SENs and in accordance with this Article.
SECTION 1502. DEFEASANCE AND DISCHARGE. Upon the Company's
exercise of the above option applicable to this Section with respect to any SENs
of or within a Series, the Company and the Guarantor shall be deemed to have
been discharged from their respective obligations with respect to such
Outstanding SENs on the date the conditions set forth in Section 1504 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
(i) that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding SENs, which shall thereafter be
deemed to be "Outstanding" only for the purposes of Section 1505 and the other
Sections of this Indenture referred to in (A) and (B) below, and to have
satisfied all its other obligations under such SENs and this Indenture insofar
as such SENs are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), and (ii) the Guarantor
shall be released from the Guarantees, except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Outstanding SENs to receive, solely from the trust fund
described in Section 1504 and as more fully set forth in such Section, payments
in respect of the principal of and interest and Additional Amounts, if any, on
such SENs when such payments are due, (B) the Company's obligations with respect
to such SENs under Sections 304, 305, 306, 1202 and 1203 and with respect to the
payment of Additional Amounts, if any, on such SENs as contemplated by Section
1217, (C) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, and (D) this Article Fifteen. Subject to compliance with this Article
Fifteen, the Company
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may exercise its option under this Section 1502 notwithstanding the prior
exercise of its option under Section 1503 with respect to such SENs.
SECTION 1503. COVENANT DEFEASANCE. Upon the Company's exercise
of the above option applicable to this Section with respect to any SENs of or
within a Series, (i) the Company and the Guarantor shall be released from their
respective obligations under Sections 601, 602, 604, 1204, 1205, 1206, 1207,
1208, 1209, 1210, 1211, 1213, 1214, 1215, 1216 and 1218 with respect to such
Outstanding SENs and (ii) the occurrence of any event specified in any such
Sections shall not be deemed to be a Trigger Event, an Accelerated Amortization
Event or an Event of Default on or after the date the conditions set forth in
Section 1504 are satisfied (hereinafter, "covenant defeasance"). For this
purpose, such covenant defeasance means that, with respect to such Outstanding
SENs, the Company and the Guarantor may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section or clause, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or clause or by reason of reference in any
such Section or clause to any other provision herein or in any other document,
the remainder of this Indenture and such SENs shall be unaffected thereby.
SECTION 1504. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section 1502 or
Section 1503 to any Outstanding SENs of or within a Series:
(1) The Company or the Guarantor shall irrevocably have
deposited or caused to be deposited with the Trustee (or another
trustee satisfying the requirements of Section 708 who shall agree to
comply with the provisions of this Article Fifteen applicable to it) as
trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such SENs, (A) an amount (in Dollars), or (B)
Government Obligations applicable to such SENs (determined in Dollars)
which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment of principal (including
any premium) and interest, if any, under such SENs, money in an amount,
or (C) a combination thereof, sufficient, in the opinion of an
internationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee,
to pay and discharge, and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge, (i) the principal of
and installment of interest on such Outstanding SENs on the Stated
Maturity (or Redemption Date, if applicable) of such principal (and
premium, if any) or installment of interest and (ii) any mandatory
sinking fund payments or analogous payments applicable to such
Outstanding SENs on the day on which such payments are due and payable
in accordance with the terms of this Indenture and of such SENs.
(2) In the case of an election under Section 1502, the Company
and the Guarantor shall have delivered to the Trustee an Opinion of
Counsel (which shall be outside counsel) stating that (x) the Company
and the Guarantor have received from, or there has been published by,
the Internal Revenue Service a ruling, or (y) since the
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date of execution of this Indenture, there has been a change in the
applicable United States federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that, the
Holders of such Outstanding SENs will not recognize income, gain or
loss for federal income tax purposes as a result of such defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
defeasance had not occurred.
(3) In the case of an election under Section 1503, the Company
and the Guarantor shall have delivered to the Trustee an Opinion of
Counsel (which shall be outside counsel) to the effect that the Holders
of such Outstanding SENs will not recognize income, gain or loss for
United States federal income tax purposes as a result of such covenant
defeasance and will be subject to United States federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not occurred.
(4) The Company and the Guarantor shall have delivered to the
Trustee an Officers' Certificate to the effect that such SENs, if then
listed on any securities exchange, will not be delisted as a result of
such deposit.
(5) No Default or Event of Default with respect to such SENs
shall have occurred and be continuing on the date of such deposit or,
insofar as paragraphs (vi) and (vii) of Section 603 are concerned, at
any time during the period ending on the 121st day after the date of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(6) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section 708 and
for purposes of the Trust Indenture Act with respect to any securities
of the Company.
(7) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture
or any other material agreement or instrument to which the Company or
the Guarantor is a party or by which it is bound.
(8) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with
any additional or substitute terms, conditions or limitations in
connection therewith pursuant to Section 301.
(9) The Company and the Guarantor shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for relating to either
the defeasance under Section 1502 or the covenant defeasance under
Section 1503 (as the case may be) have been complied with.
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(10) Such defeasance or covenant defeasance shall not result
in the trust arising from such deposit constituting an investment
company as defined in the U.S. Investment Company Act of 1940, as
amended, or such trust shall be qualified under such act or exempt from
regulation thereunder.
SECTION 1505. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to the provisions of
Section 1203, all money and Government Obligations (or other property as may be
provided pursuant to Section 301) (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (collectively for purposes of this
Section 1505, the "Trustee") pursuant to Section 1504 in respect of such
Outstanding SENs shall be held in trust and applied by the Trustee, in
accordance with the provisions of such SENs and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company or the
Guarantor acting as its own Paying Agent) as the Trustee may determine, to the
Holders of such SENs of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company and the Guarantor shall pay and indemnify the
Trustee against any tax fee or other charge imposed on or assessed against the
Government Obligations deposited pursuant to Section 1504 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of such Outstanding SENs.
Anything in this Article Fifteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or Government Obligations (or other property
and any proceeds therefrom) held by it as provided in Section 1504 which, in the
opinion of an internationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance, as applicable, in
accordance with this Article.
SECTION 1506. REINSTATEMENT. If the Trustee or any Paying
Agent is unable to apply any money in accordance with Section 1505 by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the obligations of
the Company and the Guarantor under this Indenture and such SENs and the
Guarantees shall be revived and reinstated as though no deposit had occurred
pursuant to Section 1502 or 1503, as the case may be, until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 1505; provided, however, that if the Company or the Guarantor, as the
case may be, makes any payment of principal of (or premium, if any, on) or
interest on any such SEN following the reinstatement of its obligations, the
Company or the Guarantor shall be subrogated to the rights of the Holders of
such SENs to receive such payment from the money held by the Trustee or Paying
Agent.
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ARTICLE SIXTEEN
GUARANTEES
SECTION 1601. GUARANTEES.
The Guarantor hereby unconditionally guarantees to each Holder
of a SEN authenticated and delivered by the Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest, on such SEN
(including all Additional Amounts payable by the Company or the Guarantor in
respect thereof pursuant to Section 1217), when and as the same shall become due
and payable, whether at the Stated Maturity, by declaration of acceleration,
call for redemption or otherwise, in accordance with the terms of such SEN and
of this Indenture. In case of the failure of the Company punctually to make any
such payment, the Guarantor hereby agrees to cause such payment to be made
punctually when and as the same shall become due and payable, whether at the
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise, and as if such payment were made by the Company, and to pay any and
all Additional Amounts payable by the Guarantor in respect thereof pursuant to
Section 1217.
The Guarantor hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of such SEN or this Indenture, the absence of any action to
enforce the same, any waiver or consent by the Holder of such SEN or by the
Trustee with respect to any provisions thereof or of this Indenture, the
obtaining of any judgment against the Company or any action to enforce the same
or any other circumstances which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. The Guarantor hereby waives the benefits of
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to such SEN
or the indebtedness evidenced thereby or with respect to any sinking fund
payment required pursuant to the terms of such SEN and all demands whatsoever,
and covenants that this Guarantee will not be discharged in respect of such SEN
except by payment in full of the principal of (and premium, if any) and interest
on such SEN (including all Additional Amounts payable in respect thereof
pursuant to Section 1217). The Guarantor hereby agrees that, in the event of a
default in payment of principal (or premium, if any) or interest on such SEN,
legal proceedings may be instituted by the Trustee on behalf of, or by, the
Holder of such SEN thereto, on the terms and conditions set forth in this
Indenture, directly against the Guarantor to enforce this guarantee without
first proceeding against the Company.
The Guarantor shall be subrogated to all rights of the Holders
of the SENs of a particular Series against the Company in respect of any amounts
paid by it on account of such SEN pursuant to the provisions of this Guarantee
or this Indenture; provided, however, that the Guarantor shall not be entitled
to enforce or to receive any payments arising out of, or based upon, such right
of subrogation until the principal of (and premium, if any) and interest, on all
SENs of such Series issued hereunder (including all Additional Amounts
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payable by the Company or the Guarantor in respect thereof pursuant to Section
1217) shall have been paid in full or duly provided for.
The Guarantees set forth in this Section shall not be valid or
become obligatory for any purpose with respect to a SEN of any Series until the
certificate of authentication on such SEN shall have been signed by the Trustee
by manual signature of one of its authorized officers.
SECTION 1602. EXECUTION AND DELIVERY OF THE GUARANTEES. The
Guarantees to be endorsed on the SENs of each series (the "Guarantees") shall
include the terms of the Guarantee set forth in Section 1601 and any other terms
that may be set forth in the form established pursuant to Section 203 with
respect to such Series. The Guarantor hereby agrees to execute the Guarantees,
in a form established pursuant to Section 203, to be endorsed on each SEN
authenticated and delivered by the Trustee.
The Guarantees shall be executed on behalf of the Guarantor by
its Chairman of the Board, a Vice Chairman of the Board, its President, a Vice
President, its Treasurer or its Comptroller. The signature of any of these
officers on the Guarantees may be manual or facsimile.
Guarantees bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Guarantor shall bind
the Guarantor, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such Guarantees
or did not hold such offices at the date of such Guarantees.
The delivery of any SEN by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Guarantee
endorsed thereon on behalf of the Guarantor. The Guarantor hereby agrees that
its Guarantee set forth in Section 1601 shall remain in full force and effect
notwithstanding any failure to endorse a Guarantee on any SEN.
ARTICLE SEVENTEEN
MEETINGS OF HOLDERS OF SENS
SECTION 1701. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A
meeting of Holders of SENs of any Series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of SENs of such Series.
SECTION 1702. CALL NOTICE AND PLACE OF MEETINGS. The Trustee
shall, upon the written request of the Holders of at least ten percent in
aggregate principal amount of the SENs of any Series at the time Outstanding, or
the Company, the Guarantor, or the Trustee may, at its discretion, call a
meeting of the Holders at any time and from time to
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time, to make, give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by the SENs of such Series to
be made, given or taken by the Holders. In any case, meetings shall be held at
such time and at such place as the Trustee shall determine. If a meeting is
being held pursuant to a written request of Holders, the agenda for the meeting
shall be as determined in the request and such meeting shall be convened within
forty (40) days from the date such request is received by the Trustee, the
Company or the Guarantor, as the case may be. Notice of any meeting of Holders
(which shall include the date, place and time of the meeting, the agenda
therefor and the requirements to attend) shall be given not less than ten (10)
days nor more than thirty (30) days prior to the date fixed for the meeting in
the manner provided in Section 106 and any publication thereof shall be for five
consecutive business days in each place of publication.
SECTION 1703. PERSONS ENTITLED TO VOTE AT MEETINGS. To be
entitled to vote at any meeting of Holders of SENs of any Series, a Person shall
be (1) a Holder of one or more Outstanding SENs of such Series, or (2) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one or
more Outstanding SENs of such Series by such Holder or Holders. Directors,
officers, managers and employees of the Company cannot be appointed as proxies.
The only Persons who shall be entitled to be present or to speak at any meeting
of Holders of SENs of any Series shall be the Person entitled to vote at such
meeting and their counsel, any representatives of the Trustee and its counsel
and any representatives of the Company, the Guarantor and their counsel.
SECTION 1704. QUORUM; ACTION. The quorum of any meeting called
to adopt a resolution will be Persons holding or representing not less than 51%
in aggregate principal amount of the SENs of a Series at the time Outstanding;
provided, however, that any such reconvened meeting adjourned for lack of the
requisite quorum, the quorum will be Persons holding or representing not less
than 30% in aggregate principal amount of such SENs at the time Outstanding. In
the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of SENs of
such Series, be dissolved. In any other case the meeting may be adjourned for a
period of not less than ten (10) days as determined by the chairman of the
meeting prior to the adjournment of such meeting. In the absence of a quorum at
any such adjourned meeting, such adjourned meeting may be further adjourned for
a period of not less than ten (10) days as determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section 1702,
except that such notice need be given only once not less than five (5) days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of any adjourned meeting shall state expressly the percentage,
as provided above, of the principal amount of the Outstanding SENs of such
Series which shall constitute a quorum.
Except as limited by the proviso to Section 1002, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of a majority in principal amount of the Outstanding SENs of that Series
present and represented at such meeting; provided, however, that, except as
limited by the proviso to Section 1002, any resolution with respect
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to any request, demand, authorization, direction, notice, consent, waiver or
other action which this Indenture expressly provides may be made, given or taken
by the Holders of not less than 51% in principal amount of the Outstanding SENs
of a Series may be adopted at a meeting or an adjourned meeting duly reconvened
and at which a quorum is present as aforesaid only by the affirmative vote of
the Holders of at least 51% in principal amount of the Outstanding SENs of that
Series; and provided, further, that, except as limited by the proviso to Section
1002, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding SENs of a Series may be adopted at a meeting or any adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding SENs of that Series.
Any resolution passed or decision taken at any meeting of
Holders of SENs of any Series duly held in accordance with this Section shall be
binding on all the Holders of SENs of such Series coupons, whether or not
present or represented at the meeting.
SECTION 1705. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS. (a) Notwithstanding any provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of SENs of a Series in regard to proof of the holding of
SENs of such Series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as its shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of SENs shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104.
Such regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(b) The Trustee, the Company or the Guarantor, as the case may
be, shall by an instrument in writing appoint a temporary chairman of the
meeting. A permanent chairman and a permanent secretary of the meeting shall be
elected by vote of the Persons entitled to vote a majority in principal amount
of the Outstanding SENs of such Series represented at the meeting.
(c) At any meeting each Holder of a SEN of such Series or
proxy shall be entitled to one vote for each $1,000 principal amount of
Outstanding SENs of such Series held or represented by him (determined as
specified in the definition of "Outstanding" in Section 101); provided, however,
that no vote shall be cast or counted at any meeting in respect of any SEN
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a SEN of such Series or proxy.
▇▇▇
▇▇▇
(▇) Any meeting of Holders of SENs of any Series duly called
pursuant to Section 1702 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding SENs of such Series represented at the meeting; and the meeting may
be held as so adjourned without further notice.
SECTION 1706. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of SENs of any
Series shall be by written ballots on which shall be subscribed the signatures
of the Holders of SENs of such Series or of their representatives by proxy and
the principal amounts and serial numbers of the Outstanding SENs of such Series
held or represented by them. The permanent chairman of the meeting shall appoint
two inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes cast at the
meeting. A record, at least in duplicate, of the proceedings of each meeting of
Holders of SENs of any Series shall be prepared by the Secretary of the meeting
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section 1702
and, if applicable, Section 1704. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
114
101
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
SOUTHERN PERU LIMITED
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title:Treasurer
SOUTHERN PERU COPPER CORPORATION
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title:Treasurer
CITIBANK, N.A.
Trustee, Principal Paying Agent and
Registrar
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Trust Officer
115
Exhibit A
Guarantee
For value received, SOUTHERN PERU COPPER CORPORATION, a
company organized under the laws of Delaware, (the "Guarantor", which term
includes any successor corporation under the Indenture referred to in the SEN
upon which this Guarantee is endorsed), hereby unconditionally guarantees to the
Holder of the SEN upon which this Guarantee is endorsed, the due and punctual
payment of the principal of (and premium, if any) and interest, if any, on such
SEN (including all Additional Amounts payable by the Company in respect thereof
pursuant to such SEN), any other amount due and payable pursuant to the terms of
the Indenture when and as the same shall become due and payable, whether at the
Stated Maturity, by declaration of acceleration, call for redemption or
otherwise, according to the terms thereof and of the Indenture referred to
therein. In case of the failure of the Company punctually to make any such
payment, the Guarantor hereby agrees to cause such payment to be made punctually
when and as the same shall become due and payable, whether at the Stated
Maturity or by declaration of acceleration or otherwise, and as if such payment
were made by the Company, and to pay any and all Additional Amounts payable in
respect thereof pursuant to such SEN and Section 1217 of such Indenture.
The Guarantor hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of such SEN or the Indenture, the absence of any action to
enforce the same, any waiver or consent by the Holder of such SEN or the Trustee
or either of them with respect to any provisions thereof or of the Indenture,
the obtaining of any judgment against the Company or any action to enforce the
same or any other circumstances which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. The Guarantor hereby waives the
benefits of diligence, presentment, demand of payment, filing of claims with a
court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest or notice with respect
to such SEN or the indebtedness evidenced thereby and all demands whatsoever,
and covenants that this Guarantee will not be discharged except by payment in
full of the principal of (and premium, if any) and interest on such SEN. The
Guarantor hereby agrees that, in the event of a default in payment of principal
(or premium, if any) or interest on such SEN, legal proceedings may be
instituted by the Trustee on behalf of, or by, the Holder of such SEN, on the
terms and conditions set forth in the Indenture, directly against the Guarantor
to enforce this Guarantee without first proceeding against the Company.
The Guarantor shall be subrogated to all rights of the Holder
of the SEN upon which this Guarantee is endorsed against the Company in respect
of any amounts paid by the Guarantor on account of such SEN pursuant to the
provisions of this Guarantee or the Indenture; provided, however, that the
Guarantor shall not be entitled to enforce or to receive any payments arising
out of, or based upon, such right of subrogation until the principal of (and
premium, if any) and interest on such SEN and all other SENs of the same Series
issued under the Indenture (including all Additional Amounts payable in respect
thereof) shall have been paid in full.
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116
All terms used in this Guarantee which are defined in the
Indenture referred to in the SEN upon which this Guarantee is endorsed shall
have the meanings assigned to them in such Indenture.
All references in this Guarantee to principal, premium or
interest in respect of any SEN shall be deemed to mean and include all
Additional Amounts, if any, payable in respect of such principal, premium or
interest, unless the context otherwise requires, and express mention of the
payment of Additional Amounts in any provision hereof shall not be construed as
excluding reference to Additional Amounts in those provisions hereof where such
express mention is not made.
This Guarantee shall be governed by and construed in
accordance with the laws of the State of New York.
No recourse for the payment of the principal of, premium, if
any, or interest under this Guarantee, or for any claim based hereon or
otherwise in respect hereof, and no recourse under or upon any obligation,
covenant or agreement of the Guarantor in the Indenture or in any supplemental
indenture, or in this Guarantee, or because of the creation of any indebtedness
represented hereby, shall be had against any incorporator or stockholder or any
officer or director, as such, past, present or future, of the Guarantor or of
any successor corporation thereof, either directly or through the Guarantor or
any successor of the Guarantor in the Indenture or in any supplemental
indenture, whether by virtue of any constitution, statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of the Indenture and the
issue of the SEN on which this Guarantee is endorsed.
This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the SEN upon which this
Guarantee is endorsed shall have been executed by the Trustee under the
Indenture by manual signature of one of its authorized officers.
IN WITNESS WHEREOF, the undersigned has caused this Guarantee
to be duly executed.
SOUTHERN PERU COPPER CORPORATION
By:
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Attest:
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Each Guarantee shall be dated the date of the SEN upon which
it is endorsed. Reference is made to Article Sixteen for further provisions with
respect to the Guarantees.
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