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EXHIBIT 10.10
CONFORMED COPY
FIRST AMENDMENT, dated as of July 14, 1997 (this "AMENDMENT"), to the
Credit and Guarantee Agreement, dated as of March 31, 1997 (the "CREDIT
AGREEMENT"), among SOUTHERN PERU COPPER CORPORATION, a Delaware Corporation (the
"PARENT"), SOUTHERN PERU LIMITED, a Delaware corporation (the "BORROWER"), the
several banks and other financial institutions from time to time parties to the
Credit Agreement (collectively, the "LENDERS"); individually, a "LENDER"),
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent for the
Lenders (in such capacity, the "ADMINISTRATIVE AGENT"), THE CHASE MANHATTAN
BANK, as Documentation Agent for the Lenders, CITICORP SECURITIES, INC., as
Syndication Agent, and DEUTSCHE BANK AG, NEW YORK BRANCH, as Security and
Collateral Agent for the Lenders.
W I T N E S S E T H:
WHEREAS, pursuant to subsection 8.6(b) of the Credit Agreement (as
waived pursuant to the Waiver, dated as of May 30, 1997), the Borrower has
agreed to amend the Credit Agreement on or prior to July 15, 1997 to include any
representations and warranties, covenants or events of default applicable to the
Series A Secured Export Notes which are more favorable to the holders of such
Series A Secured Export Notes than those contained in the Credit Agreement;
WHEREAS, the Borrower and the Lenders have agreed upon the amendments
to be made in order for the Borrower to comply with subsection 8.6(b) of the
Credit Agreement; and
WHEREAS, the Borrower has requested an amendment to subsection 8.5 of
the Credit Agreement and certain amendments to the Collateral Trust Agreement,
and the Lenders wish to take certain action in respect of the Collateral Trust
Agreement, all as provided herein;
NOW THEREFORE, in consideration of the premises contained herein,
the parties hereto agree as follows;
1. Defined Terms. Unless otherwise defined herein, terms which are
defined in the Credit Agreement and used herein are so used as so defined.
2. Amendments to Subsection 1.1. Subsection 1.1 of the Credit Agreement
is hereby amended as follows:
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(a) by deleting the definition of "Blocked Collections", "Ilo
Smelter" and "Ilo Refinery" in their entireties and substituting in
lieu thereof the following new definitions:
"BLOCKED COLLECTIONS": at any time, (a) if the Outstanding Principal
Amount is less than $300,000,000 at such time, 100% of the Collections
transferred to the Credit Facility Collateral Account pursuant to the Collateral
Trust Agreement, (b) if the Outstanding Principal Amount is less than or equal
to $500,000,000 but greater than or equal to $300,000,000 at such time, 75% of
the Collections transferred to the Credit Facility Collateral Account pursuant
to the Collateral Trust Agreement and (c) if the Outstanding Principal Amount is
greater than $500,000,000 at such time, 50% of the Collections transferred to
the Credit Facility Collateral Account pursuant to the Collateral Trust
Agreement. Such percentages shall be calculated following funding of the Credit
Facility Reserve Account to the extent necessary to cause the amount on deposit
in the Credit Facility Reserve Account to be equal to the Required Balance at
such time.
"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
process and other concessions relating thereto.
(b) by adding the words "after March 31, 1997" after the word
"change" the first time such word appears in clause (iii) of the
definition of "Consolidated Net Worth";
(c) by (i) deleting the word "and" after clause (b) of the
first sentence of the definition of "Indebtedness" and (ii) adding a
new clause after such clause (c) to read in its entirety as follows:
"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";
(d) by adding the words "or replaced" after the word "amended"
in the definition of "PAMA";
(e) by deleting the words "by more than 30 days" appearing in
clause (c) of the definition of "Permitted Principal Property Liens";
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(f) by adding the following definitions in the proper
alphabetical order:
"ANNUAL SALES CERTIFICATE": as defined in subsection 8.10.
"CERTIFIED EXPORT SALES": as defined in subsection 8.10.
"COPPER SUBSIDIARY": as defined in subsection 8.11.
"DOMESTIC PERCENTAGE": as defined in subsection 8.10.
"DOMESTIC SALES": as defined in subsection 8.10.
"EXCESS DOMESTIC PERCENTAGE": as defined in subsection 8.10.
"RESTRICTED PAYMENTS": as defined in subsection 8.5.
"TOTAL SALES": as defined in subsection 8.10.
3. Amendments to Section 7. Section 7 of the Credit Agreement is hereby
amended by adding a new subsection at the end of such Section to read in its
entirety as follows:
"7.10 Preservation of Security Interest. The Borrower 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
(as defined in the Collateral Trust Agreement) and the Administrative
Agent's interest in the Credit Facility Collateral (as defined in the
Collateral Account Agreement), and will defend, at its own cost and
expense, the right, title and interest of the Collateral Trustee in and
to the Collateral (as defined in the Collateral Trust Agreement) and
the right, title and interest of the Administrative Agent in and to the
Credit Facility Collateral (as defined in the Collateral Account
Agreement)."
4. Amendments to Section 8. Section 8 of the Credit Agreement is hereby
amended as follows:
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(a) by deleting the words "all or substantially all of the
assets constituting" appearing in subsection 8.4;
(b) by deleting the proviso in subsection 8.5 and substituting
in lieu thereof the following:
"other than in connection with employee benefit or stock award
plans (whether now existing or hereafter created) in the
ordinary course of business (such declarations, payments,
setting apart, purchases, redemptions, defeasances,
retirements, acquisitions and distributions being herein
called "Restricted Payments"), provided that long as no Event
of Default shall have then occurred and be continuing or would
result therefrom, the Parent may make Restricted Payments in
an amount equal to 50% of Consolidated Net Income for any
fiscal quarter so long as such Restricted Payments are paid on
or before June 30 of the fiscal year next succeeding the
fiscal year in which such Consolidated Net Income was earned";
(c) by adding the words "or Blocking Event" after the words
"Event of Default" appearing in paragraph (a) of subsection 8.9; and
(d) by adding two new subsections at the end of such Section
to read in their entireties as follows:
"8.10 Export Sales. On or prior to January 15 of each calendar
year, the Borrower shall deliver to the Collateral Trustee and the
Administrative Agent a certificate of Responsible Officer (the "Annual
Sales Certificate") certifying for such calender 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
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hereinafter be referred to as the "Excess 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 Borrower 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 Borrower shall deliver to the Collateral Trustee and the
Administrative Agent 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 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.
8.11 Subsidiaries. In the event that any direct or indirect
Subsidiary (other than the Borrower) of the Parent 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 Parent shall cause,
immediately after any such sale, each Copper Subsidiary to enter into a
supplement or 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 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 thereof, 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."
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5. Amendments to Section 9. Section 9 of the Credit Agreement is hereby
amended as follows:
(a) by deleting clause (ii) of paragraph (c) of subsection 9.1
and substituting in lieu thereof the following:
"(ii) subsection 8.2(a) or 8.2(c) and such default under
subsection 8.2(a) or 8.2(c) shall continue unremedied (x) in
the case of a Lien created, incurred or assumed by the
Borrower or the Parent in violation of such subsections, for
10 days after the earlier of the day on which the Borrower or
the Parent receives written notice thereof or the day on which
a Responsible Officer of the Borrower or the Parent first
obtains knowledge thereof and (y) in the case of a Lien
permitted to exist in violation of such subsections, for 45
days after the earlier of the day on which a Responsible
Officer of the Borrower or the Parent receives written notice
thereof or the day on which the Borrower or the Parent first
obtains knowledge thereof":
(b) by adding the word "or" at the end of paragraph (k) of
subsection 9.1;
(c) by adding a new paragraph after paragraph (k) of
subsection 9.1 to read in its entirety as follows:
"(l) it becomes unlawful for the Borrower or the Parent to
perform any of its obligations under this Agreement or any
other Loan Document if the failure to so perform would result
in a Material Adverse Effect; the Obligations cease to be
valid, binding and enforceable in accordance with their terms
or the binding effect or enforceability thereof shall be
contested by the Borrower or the Parent; or the Borrower or
the Parent shall deny in writing or by public announcement
that it has any further liability or obligation hereunder or
in respect hereof;"; and
(d) by adding a proviso at the end of the first sentence of
subsection 9.2 to read in its entirety as follows:
"; provided that, in the event that any Collections are
retained in any SENS Collateral Account solely as a result of
a Debt Service Retention Event (as defined in the Indenture,
dated as of May 30, 1997 (the "Indenture"), among the
Borrower, the Parent and
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Citibank, N.A., as trustee, relating to the Secured Export
Notes), the Collateral Agent shall retain the Blocked
Collections in the Credit Facility Collateral Account as
additional collateral for the Obligations pursuant to the
Collateral Account Agreement for so long as Collections are
being retained in any SENS Collateral Account as a result of
such Debt Service Retention Event and, upon the release or
application of such Collections from such SENS Collateral
Account, the Collateral Agent shall, so long as no Default or
Event of Default shall have then occurred and be continuing
and so long as no Blocking Event (other than as a result of
such Debt Service Retention Event) shall have then occurred
and be continuing, use the Blocked Collections so retained in
the Credit Facility Collateral Account to make any payment
then due and payable hereunder in respect of the principal of
or interest on the Loans or, if no such amount is then due and
payable, shall release such Blocked Collections to the
Borrower".
6. Amendment to Collateral Trust Agreement; Direction to Collateral
Trustee. (a) The Lenders hereby consent to the amendment of the Collateral Trust
Agreement substantially in the form set forth in Exhibit A hereto.
(b) The Lenders hereby authorize the Administrative Agent, in
its discretion, to direct the Collateral Trustee to make the transfer
of funds required pursuant to the second sentence of Section 3.02 of
the Collateral Trust Agreement as of 3:00 P.M. on every Business Day
with respect to funds then on deposit in the Collection Account rather
than as of the opening of business of such Business Day as currently
specified in such sentence.
7. Effectiveness. This Amendment shall become effective as of the date
hereof upon receipt by the Administrative Agent of counterparts of this
Amendment duly executed and delivered by the Parent, the Borrower and the
Required Lenders.
8. Continuing Effect; No Other Amendments. Except as expressly amended
hereby, all the terms and provisions of the Credit Agreement are and shall
remain in full force and effect. The amendments provided for herein are limited
to the specified subsections of the Credit Agreement specified herein and shall
not constitute an amendment or waiver of, or an indication of any Agent's or
Lender's willingness to amend or waive, any other provisions of the Credit
Agreement or the same subsection for any other date or time period (whether or
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not such other provisions or compliance with such subsection for another date or
time period are affected by the circumstances addressed in this Amendment).
9. Expenses. The Borrower agrees to pay and reimburse the
Administrative Agent for all its reasonable costs and out-of-pocket expenses
incurred in connection with the preparation and delivery of this Amendment,
including, without limitation, the reasonable fees and disbursements of counsel
to the Administrative Agent.
10. Counterparts. This Amendment may be executed by one or more of the
parties to this Amendment on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Amendment
signed by all the parties shall be delivered to the Borrower and the
Administrative Agent.
11. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective duly authorized officers as of the
date first above written.
SOUTHERN PERU COPPER CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Title: Treasurer
SOUTHERN PERU LIMITED
By: /s/ Xxxxxx X. Xxxxxxx
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Title: Treasurer
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent and
as a Lender
By: /s/ Xxxxxxx Xxxxxxx
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Title: Vice President
THE CHASE MANHATTAN BANK, as
Documentation Agent and as a Lender
By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President
CITIBANK N.A., as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Managing Director
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CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxx xxx Xxxxx
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Title: Director
Title: Director
By: /s/ Xxxxxxx Xxxxxx
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Title: Associate
DEUTSCHE BANK AG, NEW YORK BRANCH, as
Collateral Agent and as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Vice President
By: /s/ Xxxxxx X. Xxxxxx
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Title: Assistant Vice President
XXXXXXX XXXXX CREDIT PARTNERS L.P.
By: /s/ Xxxxxxx X. Xxxx
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Title: Authorized Signatory
THE BANK OF NOVA SCOTIA
By: /s/ J. Xxxx Xxxxxxx
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Title: Authorized Signatory
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DRESDNER BANK LUXEMBOURG S.A.
By: /s/ H. Rabelt
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Title: Authorized Signature
By: /s/ X. Xxxxxxxxx
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Title: Assistant Manager Loans
BANCO BILBAO VIZCAYA, NEW YORK BRANCH
By: /s/ Xxxx Xxxxxx Caneras
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Title: Vice President
By: /s/ Xxxxxxxxx Xxxxx
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Title: Vice President
BANCO CONTINENTAL
By: /s/ Xxxxxxx Xxxxxx Xxxxx
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Title: Central Manager
By: /s/ Xxxxxxx Hermosa Xxxxx
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Title: Central Manager
BANQUE NATIONALE DE PARIS
By: /s/ Xxx Xxxxxx Xxxxx
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Title: Vice President
By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President
CREDIT LYONNAIS
By: /s/ Xxxxxxx Xxxxxx
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Title: Senior Vice President
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SOCIETE GENERALE, NEW YORK BRANCH
By: /s/ Xxxxxxxx Xxxxxx
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Title: Vice President
By: /s/ Xxxxx X. Xxxxx
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Title: Vice President
BANCO DE CREDITO DEL PERU
By: /s/ Xxxxx Xxxxxx Xxxx
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Title: Managing Director
WESTDEUTCHE LANDESBANK GIROZENTRALE
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Managing Director
By: /s/ Xxxxxxx Xxxxxx
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Title: Associate
CIBC INC.
By: /s/ Xxxxxxx X. Xxxxx
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Title: Managing Director
CIBC Wood Gundy
Securities Corp., as agent
BANKERS TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxx
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Title: Managing Director
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XXXXXX XXXXXXXXX XX XXXXXXXX XXXXXXXXX
By: /s/ Xxxx Xxxxx
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Title: First Vice President
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Assistant Vice President
BANCO LATINOAMERICANO DE EXPORTACIONES, S.A.
By: /s/ Xxxxx Xxxxxxx de Carrizo
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Title: Assistant Vice President
By: /s/ Xxxxxx Xxxxx
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Title: Senior Vice President
BANQUE INDOSUEZ
By: /s/ X. xx Xxxxxxxx
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Title: First Vice President
By: /s/ M. Xxxxx xx Xxxxxxx
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Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Xxxxxx Xxxxxxx
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Title: Director
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BANQUE SUDAMERIS MIAMI AGENCY
By: /s/ Xxxxxxx Xxxxxxxxx
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Title: First Vice President &
Deputy Manager
By: /s/ Xxxxxx Xxxxx
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Title: Assistant Vice President
GENERALE BANK
By: /s/ Xxxx Cardoen
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Title: Senior Vice President
By: /s/ X. Xxxxxxxx
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Title: Senior Vice President
ROYAL BANK OF CANADA
By: /s/ Xxxxx X. Xxxxxxx
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Title: Senior Manager
BANQUE WORMS CAPITAL CORPORATION
By: /s/ X. Xxxxxxx
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Title: Vice President and General
Counsel
By: /s/ Xxxxxxxxx Xxxxx
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Title: Senior Vice President
RAIFFEISEN ZENTRALBANK DEUTERREICH AG
By: /s/ Xxxxxx X. Montarr
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Title: Vice President
By: /s/ Xxxx X. Xxxxxxx
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Title: Vice President
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