UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): November 9, 2012 (November 5, 2012)
SOUTHERN COPPER CORPORATION
(Exact name of registrant as specified in charter)
Delaware | 1-14066 | 13-3849074 | ||
(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification Number) |
1440 E. Missouri Ave., Suite 160, Phoenix, AZ 85014
(Address of principal executive offices, including zip code)
(602) 264-1375
(Registrants telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
INFORMATION TO BE INCLUDED IN THE REPORT
Item 1.01. | Entry into a Material Definitive Agreement. |
On November 8, 2012, Southern Copper Corporation (the Company) completed a registered public offering of $1.5 billion of debt securities (the Offering), consisting of $300 million aggregate principal amount of its 3.500% Notes due 2022 (the 2022 Notes) and $1.2 billion aggregate principal amount of its 5.250% Notes due 2042 (the 2042 Notes and together with the 2022 Notes, the Notes). The Notes were offered by the Company pursuant to its Registration Statement on Form S-3 (File No. 333-165904) and the Prospectus included therein, filed with the Securities and Exchange Commission on April 5, 2010 and supplemented by the Prospectus Supplement dated November 5, 2012. The offering resulted in net proceeds, after deducting estimated offering expenses of approximately $3,100,000 and underwriters discounts, of approximately $1,468,655,000. The Company intends to use these net proceeds for general corporate purposes, including the financing of its capital expenditure program.
On November 5, 2012, the Company entered into an Underwriting Agreement, dated November 5, 2012 (the Underwriting Agreement), with HSBC Securities (USA) Inc., Morgan Stanley & Co. Incorporated, Credit Suisse Securities (USA) LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as representatives of the underwriters named therein (collectively, the Underwriters), in connection with the issuance and sale by the Company of the Notes. Pursuant to the Underwriting Agreement, the Company agreed to sell the Notes to the Underwriters, and the Underwriters agreed to purchase the Notes for resale to the public. The Underwriting Agreement includes customary representations, warranties and covenants by the Company. It also provides for customary indemnification by each of the Company and the Underwriters against certain liabilities and customary contribution provisions in respect of those liabilities.
Pursuant to an Indenture, dated April 16, 2010 (the Indenture), between the Company and Wells Fargo Bank, National Association, as trustee (the Trustee), the Company and the Trustee entered into a Third Supplemental Indenture dated as of November 8, 2012 (the Third Supplemental Indenture) and a Fourth Supplemental Indenture dated as of November 8, 2012 (the Fourth Supplemental Indenture). The Third Supplemental Indenture and the Fourth Supplemental Indenture provide for the issuance, and set forth the terms of, the 2022 Notes and 2042 Notes, respectively. The Indenture, the Third Supplemental Indenture and the Fourth Supplemental Indenture contain covenants that limit the Companys ability to, among other things, incur certain liens securing indebtedness, engage in certain sale and leaseback transactions, and enter into certain consolidations, mergers, conveyances, transfers or leases of all or substantially all the Companys assets. The Company may issue additional debt from time to time pursuant to the Indenture.
The foregoing description of the Underwriting Agreement, the Third Supplemental Indenture and the Fourth Supplemental Indenture is qualified in its entirety by reference to the full text of such documents, which are filed as Exhibits 1, 4.1 and 4.2 hereto, respectively, and incorporated herein by reference.
Item 2.03. | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The information set forth under Item 1.01. Entry into a Material Definitive Agreement of this Current Report on Form 8-K is incorporated herein by reference.
Item 8.01. | Other Events. |
On November 9, 2012, the Company issued a press release announcing the completion of the Offering. A copy of the press release is filed as Exhibit 99 hereto and is incorporated herein by reference.
Exhibit 5, Opinion of Chadbourne & Parke LLP, and Exhibit 23, Consent of Chadbourne and Parke LLP, in the accompany Exhibit Index relate to the Registration Statement on Form S-3 (Registration Statement No. 333-165904) (the Registration Statement), filed by the Company with the Securities and Exchange Commission (the SEC) on April 5, 2010, as supplemented by the Prospectus Supplement dated November 5, 2012, filed with the SEC on November 6, 2012, and are filed herewith for incorporation by reference in the Registration Statement in connection with the Offering.
Item 9.01. | Financial Statements and Exhibits. |
(d) | Exhibits |
1 | Underwriting Agreement, dated November 5, 2012, among Southern Copper Corporation and HSBC Securities (USA) Inc., Morgan Stanley & Co. Incorporated, Credit Suisse Securities (USA) LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as representatives of the underwriters named therein. |
4.1 | Third Supplemental Indenture, dated as of November 8, 2012, between Southern Copper Corporation and Wells Fargo Bank, National Association, as trustee, pursuant to which the 3.500% Notes due 2022 were issued. |
4.2 | Fourth Supplemental Indenture, dated as of November 8, 2012, between Southern Copper Corporation and Wells Fargo Bank, National Association, as trustee, pursuant to which the 5.250% Notes due 2042 were issued. |
4.3 | Form of 3.500% Notes due 2022 (included as Exhibit A to Exhibit 4.1). |
4.4 | Form of 5.250% Notes due 2042 (included as Exhibit A to Exhibit 4.2). |
5 | Opinion of Chadbourne & Parke LLP. |
23 | Consent of Chadbourne & Parke LLP (contained in Exhibit 5). |
99 | Press Release of the Company dated November 9, 2012. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
SOUTHERN COPPER CORPORATION (Registrant) | ||||||
Date: November 9, 2012 | By: | /s/ Raul Jacob | ||||
Name: Raul Jacob | ||||||
Title: Comptroller |
Signature Page to 8-K
EXHIBIT INDEX
Exhibit |
Description | |
1 | Underwriting Agreement, dated November 5, 2012, among Southern Copper Corporation and HSBC Securities (USA) Inc., Morgan Stanley & Co. Incorporated, Credit Suisse Securities (USA) LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as representatives of the underwriters named therein. | |
4.1 | Third Supplemental Indenture, dated as of November 8, 2012, between Southern Copper Corporation and Wells Fargo Bank, National Association, as trustee, pursuant to which the 3.500% Notes due 2022 were issued. | |
4.2 | Fourth Supplemental Indenture, dated as of November 8, 2012, between Southern Copper Corporation and Wells Fargo Bank, National Association, as trustee, pursuant to which the 5.250% Notes due 2042 were issued. | |
4.3 | Form of 3.500% Notes due 2022 (included as Exhibit A to Exhibit 4.1). | |
4.4 | Form of 5.250% Notes due 2042 (included as Exhibit A to Exhibit 4.2). | |
5 | Opinion of Chadbourne & Parke LLP. | |
23 | Consent of Chadbourne & Parke LLP (contained in Exhibit 5). | |
99 | Press Release of the Company dated November 9, 2012. |
EXHIBIT 1
SOUTHERN COPPER CORPORATION
U.S.$300,000,000 3.500% Notes due 2022
U.S.$1,200,000,000 5.250% Notes due 2042
UNDERWRITING AGREEMENT
November 5, 2012
HSBC SECURITIES (USA) INC.
452 Fifth Avenue
New York, NY 10018
MORGAN STANLEY & CO. LLC
1585 Broadway
New York, NY 10036
CREDIT SUISSE SECURITIES (USA) LLC
Eleven Madison Avenue
New York, NY 10010-3629
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
One Bryant Park
New York, New York 10036
As Representatives of the Several Underwriters,
Dear Sirs:
1. Introductory. Southern Copper Corporation, a Delaware corporation (Company), agrees with the several Underwriters named in Schedule A hereto (Underwriters) to issue and sell to the several Underwriters (i) U.S.$300,000,000 aggregate principal amount of its 3.500% notes due 2022 (2022 Notes) and (ii) U.S.$1,200,000,000 aggregate principal amount of its 5.250% notes due 2042 (2042 Notes). The 2022 Notes and the 2042 Notes will each constitute a series of notes to be issued under a supplemental indenture to the indenture to be dated the Closing Date (Base Indenture) between the Company and Wells Fargo Bank, National Association, as Trustee. Each such supplemental indenture, together with the Base Indenture, is referred to herein as an Indenture, and collectively as the Indentures. The 2022 Notes and the 2042 Notes are herein collectively called the Offered Securities.
2. Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, the several Underwriters that:
(a) Filing and Effectiveness of Registration Statement; Certain Defined Terms. The Company has filed with the Commission a registration statement on Form S-3 (No. 333-165904), including a related prospectus or prospectuses, covering the registration of the Offered Securities under the Act, which has
become effective. Registration Statement at any particular time means such registration statement in the form then filed with the Commission, including any amendment thereto, any document incorporated by reference therein and all 430B Information with respect to such registration statement, that in any case has not been superseded or modified.
Registration Statement without reference to a time means the Registration Statement as of the Effective Time. For purposes of this definition, 430B Information shall be considered to be included in the Registration Statement as of the time specified in Rule 430B.
For purposes of this Agreement:
430B Information means information included in a prospectus then deemed to be a part of the Registration Statement pursuant to Rule 430B(e) or retroactively deemed to be a part of the Registration Statement pursuant to Rule 430B(f).
Act means the Securities Act of 1933, as amended.
Applicable Time means 5:30 pm (Eastern time) on the date of this Agreement.
Closing Date has the meaning defined in Section 3 hereof.
Commission means the Securities and Exchange Commission.
Effective Time of the Registration Statement relating to the Offered Securities means the time of the first contract of sale for the Offered Securities.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Final Prospectus means the Statutory Prospectus that discloses the public offering price, other 430B Information and other final terms of the Offered Securities and otherwise satisfies Section 10(a) of the Act.
General Use Issuer Free Writing Prospectus means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors, as evidenced by its being so specified in Schedule B to this Agreement.
Issuer Free Writing Prospectus means any issuer free writing prospectus, as defined in Rule 433, relating to the Offered Securities in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Companys records pursuant to Rule 433(g).
Limited Use Issuer Free Writing Prospectus means any Issuer Free Writing Prospectus that is not a General Use Issuer Free Writing Prospectus.
Rules and Regulations means the rules and regulations of the Commission.
Securities Laws means, collectively, the Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley), the Act, the Exchange Act, the Trust Indenture Act, the Rules and Regulations, the auditing principles, rules, standards and practices applicable to auditors of issuers (as defined in Sarbanes-Oxley) promulgated or approved by the Public Company Accounting Oversight Board and, as applicable, the rules of the New York Stock Exchange and the NASDAQ Stock Market (Exchange Rules).
Statutory Prospectus with reference to any particular time means the prospectus relating to the Offered Securities that is included in the Registration Statement immediately prior to that time, including any amendment thereto, any document incorporated by reference therein and all 430B Information with respect to the Registration Statement. For purposes of the foregoing definition, 430B Information shall be considered to be included in the Statutory Prospectus only as of the actual time that form of prospectus (including a prospectus supplement) is filed with the Commission pursuant to Rule 424(b) and not retroactively.
Trust Indenture Act means the Trust Indenture Act of 1939, as amended.
Unless otherwise specified, a reference to a rule is to the indicated rule under the Act.
(b) Compliance with Securities Act Requirements. (i) (A) At the time the Registration Statement initially became effective, (B) at the time of each amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether by post-effective amendment, incorporated report or form of
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prospectus), (C) at the Effective Time relating to the Offered Securities and (D) on the Closing Date, the Registration Statement conformed and will conform in all respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations and did not and will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) (A) on its date, (B) at the time of filing the Final Prospectus pursuant to Rule 424(b) and (C) on the Closing Date, the Final Prospectus will conform in all material respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations, and will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading. The preceding sentence does not apply to statements in or omissions from any such document based upon written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 8(b) hereof.
(c) Automatic Shelf Registration Statement. (i) Well-Known Seasoned Issuer Status. (A) At the time of initial filing of the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Offered Securities in reliance on the exemption of Rule 163, the Company was a well known seasoned issuer as defined in Rule 405, including not having been an ineligible issuer as defined in Rule 405.
(ii) Effectiveness of Automatic Shelf Registration Statement. The Registration Statement is an automatic shelf registration statement, as defined in Rule 405, that initially became effective within three years of the date of this Agreement. If immediately prior to the Renewal Deadline (as hereinafter defined), any of the Offered Securities remain unsold by the Underwriters, the Company will prior to the Renewal Deadline file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Offered Securities, in a form reasonably satisfactory to the Lead Underwriter (as defined in Section 3). If the Company is no longer eligible to file an automatic shelf registration statement, the Company will prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Offered Securities, in a form reasonably satisfactory to the Lead Underwriter, and will use its best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will take all other action reasonably necessary or appropriate to permit the public offering and sale of the Offered Securities to continue as contemplated in the expired registration statement relating to the Offered Securities. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be. Renewal Deadline means the third anniversary of the initial effective time of the Registration Statement.
(iii) Eligibility to Use Automatic Shelf Registration Form. The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) objecting to use of the automatic shelf registration statement form. If at any time when Offered Securities remain unsold by the Underwriters the Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Lead Underwriter, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Offered Securities, in a form reasonably satisfactory to the Lead Underwriter, (iii) use its best efforts to cause such registration statement or post-effective amendment to be declared effective as soon as practicable, and (iv) promptly notify the Lead Underwriter of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Offered Securities to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References herein to the Registration Statement shall include such new registration statement or post-effective amendment, as the case may be.
(iv) Filing Fees. The Company has paid or shall pay the required Commission filing fees relating to the Offered Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
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(d) Ineligible Issuer Status. (i) At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Offered Securities and (ii) at the date of this Agreement, the Company was not and is not an ineligible issuer, as defined in Rule 405, including (x) the Company or any other subsidiary in the preceding three years not having been convicted of a felony or misdemeanor or having been made the subject of a judicial or administrative decree or order as described in Rule 405 and (y) the Company in the preceding three years not having been the subject of a bankruptcy petition or insolvency or similar proceeding, not having had a registration statement be the subject of a proceeding under Section 8 of the Act and not being the subject of a proceeding under Section 8A of the Act in connection with the offering of the Securities, all as described in Rule 405.
(e) General Disclosure Package. As of the Applicable Time, neither (i) the General Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable Time, the preliminary prospectus supplement, dated October 29, 2012, including the base prospectus, dated April 5, 2010, (which is the most recent Statutory Prospectus distributed to investors generally), and the other information, if any, stated in Schedule B to this Agreement to be included in the General Disclosure Package, all considered together (collectively, the General Disclosure Package), nor (ii) any individual Limited Use Issuer Free Writing Prospectus specified in Schedule B, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Statutory Prospectus or any Issuer Free Writing Prospectus in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 8(b) hereof.
(f) Incorporated Documents. The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Final Prospectus or the General Disclosure Package at the time they were or hereafter are filed with the Commission, complied or will comply in all material respects as to form with the requirements of the Exchange Act.
(g) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Offered Securities or until any earlier date that the Company notified or notifies the Representatives as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information then contained in the Registration Statement. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information then contained in the Registration Statement or as a result of which such Issuer Free Writing Prospectus, if republished immediately following such event or development, would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (i) the Company has promptly notified or will promptly notify the Representatives and (ii) the Company has promptly amended or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(h) Good Standing of the Company. The Company has been duly incorporated and is existing and in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the General Disclosure Package; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification.
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(i) Subsidiaries. Each material subsidiary of the Company listed on Schedule C hereto (each a Material Subsidiary, and together the Material Subsidiaries) has been duly incorporated and is existing and in good standing under the laws of the jurisdiction of its incorporation, with power and authority (corporate and other) to own or lease, as the case may be, and to operate its properties and conduct its business as described in the General Disclosure Package; and each Material Subsidiary of the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification; except where the failure to be so qualified would not, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business (a Material Adverse Effect); all of the issued and outstanding capital stock of each Material Subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of each Material Subsidiary owned by the Company, directly or through wholly-owned Material Subsidiaries, is owned free from liens, encumbrances and defects. Schedule C lists each Material Subsidiary of the Company and the jurisdiction in which it is chartered or organized. The subsidiaries of the Company that are not Material Subsidiaries do not individually, or taken together, constitute a Significant Subsidiary of the Company (as defined in Regulation S-X).
(j) Execution and Delivery of the Indentures. Each Indenture has been duly authorized and has been duly qualified under the Trust Indenture Act; each series of the Offered Securities has been duly authorized and, when the Offered Securities are delivered and paid for pursuant to this Agreement on the Closing Date, each Indenture will have been duly executed and delivered, each series of Offered Securities will have been duly executed, authenticated, issued and delivered, will conform to the information in the General Disclosure Package and to the description of such Offered Securities contained in the Final Prospectus and the applicable Indenture and such series of Offered Securities will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors rights and to general equity principles and judicial action giving effect to foreign governmental actions or laws.
(k) Absence of Further Requirements. No consent, approval, authorization, or order of, or filing or registration with, any person (including any governmental agency or body or any court) is required for the consummation of the transactions contemplated by this Agreement or the Indentures in connection with the offering, issuance and sale of the Offered Securities by the Company, except such as have been obtained, or made and such as may be required under state securities laws.
(l) Title to Property. Each of the Company and each of its subsidiaries owns or leases all such properties as are necessary to the conduct of its operations as presently conducted.
(m) Absence of Defaults and Conflicts Resulting from Transaction. The execution, delivery and performance of each Indenture and this Agreement, and the issuance and sale of the Offered Securities and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default or a Debt Repayment Triggering Event (as defined below) under, or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to (i) the charter or by-laws of the Company or any of its subsidiaries, (ii) any material provision of any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their properties, or (iii) any agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the properties of the Company or any of its subsidiaries is subject; except, in the case of (iii) above, for such conflicts breaches, violations, liens, charges or encumbrances that would not, individually or in the aggregate, have a Material Adverse Effect; a Debt Repayment Triggering Event means any event or condition that gives, or with the giving of notice or lapse of time would give, the holder of any note, debenture, or other evidence of indebtedness (or any person acting on such holders behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
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(n) Absence of Existing Defaults and Conflicts. Neither the Company nor any of its subsidiaries is in violation of its respective charter or by-laws or in default (or with the giving of notice or lapse of time would be in default) under any existing obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument to which any of them is a party or by which any of them is bound or to which any of the properties of any of them is subject, except such defaults that would not, individually or in the aggregate, result in a Material Adverse Effect.
(o) Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(p) Possession of Licenses and Permits. The Company and its subsidiaries possess all licenses, concessions, certificates, permits and other authorizations, in each case that are material to its business or operations, issued by the appropriate federal, national, state or foreign regulatory authorities necessary to conduct their respective businesses as currently conducted (Permits); the Company and its subsidiaries have fulfilled and performed in all material respects all of their respective obligations with respect to any such Permits which are material to its business or operations and neither the Company nor any such subsidiary has received any notice of proceedings relating to the revocation or modification of any such Permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(q) Absence of Labor Dispute. No labor problem or dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is threatened and the Company is not aware of any existing or, to the knowledge of the Company, threatened labor disturbance by the employees of any of its or its subsidiaries principal suppliers, contractors or customers, that would have a Material Adverse Effect, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(r) Insurance. The Company and each of its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as the Company reasonably believes to be prudent and customary in the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Company or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; and the Company and its subsidiaries are in compliance with the terms of such policies and instruments in all material respects.
(s) Absence of Dividend Restrictions. No Material Subsidiary of the Company is currently prohibited, directly or indirectly, from paying dividends to the Company, from making any other distribution on such subsidiarys capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiarys property or assets to the Company or any other subsidiary of the Company, except as described in or contemplated in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(t) Possession of Intellectual Property. The Company and its subsidiaries own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, intellectual property rights) necessary to conduct the business now operated by them, or presently employed by them, and have not received any notice of infringement of or conflict with asserted rights of others with respect to any intellectual property rights that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect.
(u) Environmental Laws. Except as disclosed in the General Disclosure Package, (a)(i) neither the Company nor any of its subsidiaries is in violation of, or has any liability under, any federal, state, local or non-U.S. statute, law, rule, regulation, ordinance, code, other requirement or rule of law (including common law), or decision or order of any domestic or foreign governmental agency, governmental body or court, relating to pollution, to the use, handling, transportation, treatment, storage, discharge, disposal or release of Hazardous Substances, to the protection or restoration of the environment or natural resources (including
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biota), to human health and safety including as such relates to exposure to Hazardous Substances, and to natural resource damages (collectively, Environmental Laws), (ii) neither the Company nor any of its subsidiaries owns, occupies, operates or uses any real property contaminated with Hazardous Substances, (iii) neither the Company nor any of its subsidiaries is conducting or funding any investigation, remediation, remedial action or monitoring of actual or suspected Hazardous Substances in the environment, (iv) neither the Company nor any of its subsidiaries is liable or, to the knowledge of the Company, allegedly liable for any release or threatened release of Hazardous Substances, including at any off-site treatment, storage or disposal site, (v) neither the Company nor any of its subsidiaries is subject to any claim by any governmental agency or governmental body or person relating to Environmental Laws or Hazardous Substances, and (vi) the Company and its subsidiaries have received and are in compliance with all, and have no liability under any, permits, licenses, authorizations, identification numbers or other approvals required under applicable Environmental Laws to conduct their respective businesses, except in each case covered by clauses (i) (vi) such as would not individually or in the aggregate have a Material Adverse Effect; (b) to the knowledge of the Company there are no facts or circumstances that would reasonably be expected to result in a violation of, liability under, or claim pursuant to any Environmental Law that would have a Material Adverse Effect; and (c) to the knowledge of the Company there are no requirements proposed for adoption or implementation under any Environmental Law that would reasonably be expected to have a Material Adverse Effect. For purposes of this subsection Hazardous Substances means (A) petroleum and petroleum products, by-products or breakdown products, radioactive materials, asbestos-containing materials, polychlorinated biphenyls and mold, and (B) any other chemical, material or substance defined or regulated as toxic or hazardous or as a pollutant, contaminant or waste under Environmental Laws.
(v) Accurate Disclosure. The statements in the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) under the headings Risk Factors, Material Tax Considerations, and Description of the Notes, or in the equivalent portions of other statements incorporated by reference in a Registration Statement, a Statutory Prospectus or the General Disclosure Package, the statements in the Form 10-K of the Company for the year ended December 31, 2011 as filed with the Commission, under the headings Item 1. Business and Item 1A. Risk Factors, the statements in the Form 10-Q of the Company for the quarter ended September 30, 2012 as filed with the Commission, under the heading Item 1A. Risk Factors, the statements in the Schedule 14/A of the Company as filed with the Commission on March 23, 2012, under the heading Related Party Transactions, insofar as such statements summarize legal matters, agreements, documents or proceedings, are accurate and fair summaries of such legal matters, agreements, documents or proceedings.
(w) Absence of Manipulation. The Company has not taken, directly or indirectly, any action that is designed to or that has constituted or that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Offered Securities.
(x) Statistical and Market-Related Data. Any third-party statistical and market-related data included or incorporated by reference in a Registration Statement, a Statutory Prospectus or the General Disclosure Package are based on or derived from sources that the Company believes to be reliable and accurate.
(y) Sarbanes Oxley. There is and has been no failure on the part of the Company and any of the Companys directors or officers, in their capacities as such, to comply in all material respects with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (Sarbanes-Oxley Act), including Section 402 relating to loans and Sections 302 and 906 relating to certifications.
(z) Disclosure Controls. The Company and its subsidiaries maintain disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act).
(aa) Internal Controls. The Company and each of its subsidiaries maintain and will maintain a system of internal accounting controls including, but not limited to, disclosure controls and procedures,
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internal controls over accounting matters and financial reporting, an internal audit function and legal and regulatory compliance controls (collectively, Internal Controls) sufficient to provide reasonable assurance that (i) transactions are executed in accordance with managements general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with U.S. generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with managements general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company and its subsidiaries internal controls over financial reporting are effective and the Company and its subsidiaries are not aware of any material weakness in their internal control over financial reporting.
(bb) eXtensible Business Reporting Langauge. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance with the Commissions rules and guidelines applicable thereto.
(cc) Litigation. Except as disclosed in the General Disclosure Package, there are no pending actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) against or affecting the Company, any of its subsidiaries or any of their respective properties that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Company to perform its obligations under the Indentures or this Agreement, or which are otherwise material in the context of the sale of the Offered Securities; and no such actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) are threatened or, to the Companys knowledge, contemplated.
(dd) Financial Statements. The financial statements included in the Registration Statement and the General Disclosure Package present fairly the financial position of the Company and its consolidated subsidiaries as of the dates shown and their results of operations and cash flows for the periods shown, and such financial statements have been prepared in conformity with the generally accepted accounting principles in the United States applied on a consistent basis; and the schedules included in the Registration Statement present fairly the information required to be stated therein.
(ee) No Material Adverse Change in Business. Except as disclosed in the General Disclosure Package, since the end of the period covered by the latest audited financial statements included in the General Disclosure Package (i) there has been no change, nor any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries, taken as a whole that is material and adverse, (ii) except as disclosed in or contemplated by the General Disclosure Package, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock and (iii) except as disclosed in or contemplated by the General Disclosure Package, there has been no material adverse change in the capital stock, short-term indebtedness, long-term indebtedness, net current assets or net assets of the Company and its subsidiaries.
(ff) Company Reserve Information. On the Closing Date, all information related to the Companys and its subsidiaries ore reserves included in the General Disclosure Package and the Final Prospectus (collectively, the Company Reserve Information) (i) will be accurate in all material respects and (ii) will comply in all material respects with the applicable requirements of the Act and the Exchange Act, as applicable, and the respective rules thereunder. The Company Reserve Information has been calculated in accordance with standard mining engineering procedures used in the copper mining industry and applicable government reporting requirements and applicable law. All assumptions used in the calculation of the Company Reserve Information were and are reasonable.
(gg) Investment Company Act. The Company is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the General Disclosure Package, will not be an investment company as defined in the Investment Company Act of 1940 (the Investment Company Act).
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(hh) Ratings. No nationally recognized statistical rating organization as such term is defined for purposes of Rule 436(g)(2) (i) has imposed (or has informed the Company that it is considering imposing) any condition (financial or otherwise) on the Companys retaining any rating assigned to the Company or any securities of the Company or (ii) has indicated to the Company that it is considering any of the actions described in Section 7(c)(ii) hereof.
(ii) Filing of Tax Returns. The Company and its subsidiaries have filed all federal, state, local and non-U.S. tax returns that are required to be filed or have requested extensions thereof (except in any case in which the failure so to file would not have a Material Adverse Effect); and, except as set forth in the General Disclosure Package, the Company and its subsidiaries have paid all taxes (including any assessments, fines or penalties) required to be paid by them, except for any such taxes, assessments, fines or penalties currently being contested in good faith or as would not, individually or in the aggregate, have a Material Adverse Effect.
(jj) Stamp and Transfer Taxes. No stamp or other transfer taxes or duties and no capital gains, income, stock exchange, value-added, withholding or other taxes are payable in the United States, Peru, Mexico or any other jurisdiction in which either the Company or any of its subsidiaries is organized or engaged in business for tax purposes or, in each case, any political subdivision thereof or any authority having power to tax, in connection with the execution or delivery of this Agreement or the issuance or sale by the Company of the Offered Securities.
(kk) Anti-Bribery, Anti-Money Laundering and Sanctions. Each of the Company, its subsidiaries, its affiliates and any of their respective officers, directors, supervisors, managers, agents, or employees, that it has not violated, its participation in the offering will not violate, and it has instituted and maintains policies and procedures designed to ensure continued compliance each of the following laws: (a) anti-bribery laws, including but not limited to, any applicable law, rule, or regulation of any locality, including but not limited to any law, rule, or regulation promulgated to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, signed December 17, 1997, including the U.S. Foreign Corrupt Practices Act of 1977 or any other law, rule or regulation of similar purpose and scope, (b) anti-money laundering laws, including but not limited to, applicable federal, state, international, foreign or other laws, regulations or government guidance regarding anti-money laundering, including, without limitation, Title 18 U.S. Code section 1956 and 1957, the Patriot Act, the Bank Secrecy Act, and international anti-money laundering principals or procedures by an intergovernmental group or organization, such as the Financial Action Task Force on Money Laundering, of which the United States is a member and with which designation the United States representative to the group or organization continues to concur, all as amended, and any Executive order, directive, or regulation pursuant to the authority of any of the foregoing, or any orders or licenses issued thereunder or (c) laws and regulations imposing U.S. economic sanctions measures, including, but not limited to, the International Emergency Economic Powers Act, the Trading with the Enemy Act, the United Nations Participation Act, and the Syria Accountability and Lebanese Sovereignty Act, all as amended, and any Executive Order, directive, or regulation pursuant to the authority of any of the foregoing, including the regulations of the United States Treasury Department set forth under 31 CFR, Subtitle B, Chapter V, as amended, or any orders or licenses issued thereunder.
(ll) Jurisdiction. Neither the Company nor any of its subsidiaries nor any of its or their properties or assets has any immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of Mexico or Peru.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein, the Company agrees to sell to the several Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, as set forth opposite the names of the Underwriters in Schedule A hereto, the principal amounts of Offered Securities, at a
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purchase price of (i) 99.357% of the principal amount, in the case of the 2022 Notes, and (ii) 97.807% of the principal amount, in the case of the 2042 Notes, in each case plus accrued interest from November 8, 2012 to the Closing Date (as hereinafter defined).
The Company will deliver each series of the Offered Securities to or as instructed by the Representatives for the accounts of the several Underwriters in a form reasonably acceptable to the Representatives against payment of the purchase price by the Underwriters in Federal (same day) funds by wire transfer to an account at a bank acceptable to the Underwriters at the office of Cleary Gottlieb Steen & Hamilton LLP, at 10:00 a.m., New York time, on November 8, 2012, or at such other time not later than three full business days thereafter as the Representatives and the Company determine, such time being herein referred to as the Closing Date. For purposes of Rule 15c6-1 under the Securities Exchange Act of 1934, the Closing Date (if later than the otherwise applicable settlement date) shall be the settlement date for payment of funds and delivery of securities for all the Offered Securities sold pursuant to the offering. The Offered Securities so to be delivered or evidence of their issuance will be made available for checking at the above office at least 24 hours prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters propose to offer the Offered Securities for sale to the public as set forth in the Final Prospectus.
5. Certain Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Filing of Prospectuses. The Company has filed or will file each Statutory Prospectus (including the Final Prospectus) pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and consented to by the Representatives, subparagraph (5)) not later than the second business day following the earlier of the date it is first used or the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433.
(b) Filing of Amendments; Response to Commission Requests. The Company will promptly advise the Representatives of any proposal to amend or supplement the Registration Statement or any Statutory Prospectus at any time and will offer the Representatives a reasonable opportunity to comment on any such amendment or supplement; and the Company will also advise the Representatives promptly of (i) the filing of any such amendment or supplement, (ii) any request by the Commission or its staff for any amendment to the Registration Statement, for any supplement to any Statutory Prospectus or for any additional information, (iii) the institution by the Commission of any stop order proceedings in respect of the Registration Statement or the threatening of any proceeding for that purpose, and (iv) the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities in any jurisdiction or the institution or threatening of any proceedings for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(c) Continued Compliance with Securities Laws. If, at any time when a prospectus relating to the Offered Securities is (or but for the exemption in Rule 172 would be) required to be delivered under the Act by any Underwriter or dealer, any event occurs as a result of which the Final Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Registration Statement or supplement the Final Prospectus to comply with the Act, the Company will promptly notify the Representatives of such event and will promptly prepare and file with the Commission and furnish, at its own expense, to the Underwriters and the dealers and any other dealers upon the request of the Representatives, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives consent to, nor the Underwriters delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 7 hereof.
(d) Rule 158. As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Act and Rule 158.
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(e) Furnishing of Prospectuses. The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any Statutory Prospectus, the Final Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) Blue Sky Qualifications. The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives designate and will continue such qualifications in effect so long as required for the distribution.
(g) Reporting Requirements. For so long as the Offered Securities remain outstanding, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report and any definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request. However, so long as the Company is subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act and is timely filing reports with the Commission on its Electronic Data Gathering, Analysis and Retrieval system (EDGAR), it is not required to furnish such reports or statements to the Underwriters.
(h) Payment of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including but not limited to (i) any filing fees and other expenses incurred in connection with the qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives designate and the preparation and printing of memoranda relating thereto; (ii) all expenses in connection with the execution, issue, authorization, authentication, packaging, transfer and initial delivery of the Offered Securities, the preparation and printing of this Agreement, the Offered Securities, the Indentures, the Registration Statement, the General Disclosure Package, the Final Prospectus, all amendments and supplements thereto, any Issuer Free Writing Prospectus and any other document related to the issuance, offer, sale and delivery of the Offered Securities; (iii) any fees charged by investment rating agencies for the rating of the Offered Securities; (iv) fees and expenses of the Trustee and its professional advisers; (v) costs and expenses relating to any advertising, investor presentations or any road show in connection with the offering and sale of the Offered Securities including, without limitation, any travel expenses of the Underwriters and the Companys officers and employees and any other related expenses of the Underwriters and the Company including the chartering of airplanes; (vi) fees and expenses incident to listing the Offered Securities on the Irish Stock Exchange; (vii) fees and expenses in connection with the registration of the Offered Securities under the Securities Act and the Exchange Act; (viii) expenses incurred in distributing preliminary prospectuses and the Final Prospectus (including any amendments and supplements thereto) and for expenses incurred for preparing, printing and distributing any Issuer Free Writing Prospectuses to investors or prospective investors, and (ix) the fees and expenses of the Companys counsel and the accountants incurred in distributing the General Disclosure Package, the Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectus to the Underwriters.
(i) Use of Proceeds. The Company will use the net proceeds received in connection with this offering in the manner described in the Use of Proceeds section of the General Disclosure Package. The Company will not use any of the proceeds from the sale of the Offered Securities in such a way that would require the participation of a qualified independent underwriter within the meaning of FINRA Rule 2720.
(j) Absence of Manipulation. The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company to facilitate the sale or resale of the Offered Securities.
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(k) Restriction on Sale of Securities. The Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to U.S. dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of the Representatives for a period beginning on the date hereof and ending 15 days after the last Closing Date.
(l) Listing. The Company will use commercially reasonable efforts to file for application to list the Offered Securities on the Global Exchange Market of the Irish Stock Exchange Limited.
6. Free Writing Prospectuses. (a) Issuer Free Writing Prospectuses. The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a free writing prospectus, as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a Permitted Free Writing Prospectus. The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an issuer free writing prospectus, as defined in Rule 433, and has complied and will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping.
(b) Term Sheets. The Company will prepare a final term sheet relating to the Offered Securities, containing only information that describes the final terms of the Offered Securities and otherwise in a form consented to by the Representatives, and will file such final term sheet within the period required by Rule 433(d)(5)(ii) following the date such final terms have been established for all classes of the offering of the Offered Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Offered Securities or their offering or (y) information that describes the final terms of the Offered Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence of this subsection or (ii) other information that is not issuer information, as defined in Rule 433, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement.
7. Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Offered Securities on the Closing Date will be subject to the accuracy of the representations and warranties of the Company herein (as though made on the Closing Date), to the accuracy of the statements of Company officers made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions precedent:
(a) Accountants Comfort Letter. The Representatives shall have received letters, dated, respectively, the date hereof and the Closing Date, of Galaz, Yamazaki, Ruiz Urquiza S.C., member firm of Deloitte Touche Tohmatsu Limited confirming that they are a registered public accounting firm and independent public accountants within the meaning of the Securities Laws and substantially in the form of Schedule D hereto, (except that, in any letter dated the Closing Date, the specified date referred to in Schedule D hereto shall be a date no more than three days prior to the Closing Date).
(b) Filing of Prospectus. The Final Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 5(a) hereof. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or any Underwriter, shall be contemplated by the Commission.
(c) No Material Adverse Change. Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a
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prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to market the Offered Securities; (ii) any downgrading in the rating of any debt securities of the Company by any nationally recognized statistical rating organization (as defined for purposes of Rule 436(g)), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any change in U.S., Mexican or Peruvian or international financial, political or economic conditions or currency exchange rates or exchange controls the effect of which is such as to make it, in the reasonable judgment of the Representatives, impractical to market or to enforce contracts for the sale of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any suspension or material limitation of trading in securities generally on the New York Stock Exchange or the Lima Stock Exchange, or any setting of minimum or maximum prices for trading on such exchange; (v) or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by any U.S. federal or New York authorities; (vii) any major disruption of settlements of securities, payment, or clearance services in the United States or any other country where such securities are listed or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, Mexico or Peru, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as to make it impractical or inadvisable to market the Offered Securities or to enforce contracts for the sale of the Offered Securities.
(d) Opinion of U.S. Counsel for the Company. The Company shall have requested and caused Chadbourne & Parke LLP, U.S. counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in the form set forth on Exhibit A-1, Exhibit A-2 and Exhibit A-3 hereto.
(e) Opinion of Mexican Counsel for the Company. The Company shall have requested and caused González Calvillo, S.C., Mexican counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in the form set forth on Exhibit B-1 and Exhibit B-2 hereto.
(f) Opinion of Peruvian Counsel for the Company. The Company shall have requested and caused Rodrigo Elías & Medrano Abogados, Peruvian counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date and addressed to the Representatives, in the form set forth on Exhibit C-1 and Exhibit C-2 hereto.
(g) Opinion of U.S. Counsel for the Underwriters. The Representatives shall have received from Cleary Gottlieb Steen & Hamilton LLP, U.S. counsel for the Underwriters, their opinion, dated the Closing Date and addressed to the Representatives, and the Company and its subsidiaries shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(h) Opinion of Mexican Counsel for the Underwriters. The Representatives shall have received from Ritch Mueller, S.C., Mexican counsel for the Underwriters, their opinion, dated the Closing Date and addressed to the Representatives, and the Company and its subsidiaries shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) Opinion of Peruvian Counsel for the Underwriters. The Representatives shall have received from Estudio Luis Echecopar García, Peruvian counsel for the Underwriters, their opinion, dated the Closing Date and addressed to the Representatives and the Company and its subsidiaries shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
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(j) Officers Certificate. The Representatives shall have received a certificate, dated the Closing Date, of an executive officer of the Company and a principal financial or accounting officer of the Company in which such officers shall state that: the representations and warranties of the Company in this Agreement are true and correct; the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date; no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of their knowledge and after reasonable investigation, are contemplated by the Commission; and, subsequent to the date of the most recent financial statements in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries taken as a whole except as set forth in the General Disclosure Package or as described in such certificate.
The Company will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder.
8. Indemnification and Contribution. (a) Indemnification of Underwriters. The Company will indemnify and hold harmless each Underwriter, its partners, members, directors, officers, employees, agents, affiliates and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an Indemnified Party), against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any part of the Registration Statement at any time, any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to any of the above as such expenses are incurred; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in subsection (b) below.
(b) Indemnification of Company. Each Underwriter will severally and not jointly indemnify and hold harmless the Company, each of its directors and each of its officers who signs a Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an Underwriter Indemnified Party), against any losses, claims, damages or liabilities to which such Underwriter Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any part of the Registration Statement at any time, any Statutory Prospectus as of any time, the Final Prospectus, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or the alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives specifically for use therein, and will reimburse any legal or other expenses reasonably incurred by such Underwriter Indemnified Party in connection with investigating or defending against any such loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Underwriter Indemnified Party is a party thereto), whether threatened or commenced, based upon any such untrue statement or omission, or any such alleged untrue statement or omission as such expenses are incurred, it being understood and agreed that the only such information furnished by any Underwriter consists of (a)
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the third paragraph of text under the caption Underwriting in the Final Prospectus, concerning the terms of the offering by the Underwriters; (b) the second sentence of the fourth paragraph of text under the caption Underwriting in the Final Prospectus, concerning market making by the Underwriters; and (c) the fifth, sixth and seventh paragraphs of text under the caption Underwriting in the Final Prospectus, concerning short sales, stabilizing transactions and purchases to cover positions created by short sales by the Underwriters.
(c) Actions against Parties; Notification. Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b) above, notify the indemnifying party of the commencement thereof; but the failure to notify the indemnifying party shall not relieve it from any liability that it may have under subsection (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under subsection (a) or (b) above. In case any such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement (i) includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an indemnified party.
(d) Contribution. If the indemnification provided for in this Section is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Offered Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriters and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 8(d).
15
9. Default of Underwriters. If any Underwriter or Underwriters default in their obligations to purchase Offered Securities hereunder on the Closing Date and the aggregate principal amount of Offered Securities that such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of the total principal amount of Offered Securities that the Underwriters are obligated to purchase on the Closing Date, the Representatives may make arrangements satisfactory to the Company for the purchase of such Offered Securities by other persons, including any of the Underwriters, but if no such arrangements are made by the Closing Date, the non-defaulting Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the Offered Securities that such defaulting Underwriters agreed but failed to purchase on the Closing Date. If any Underwriter or Underwriters so default and the aggregate principal amount of Offered Securities with respect to which such default or defaults occur exceeds 10% of the total principal amount of Offered Securities that the Underwriters are obligated to purchase on the Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such Offered Securities by other persons are not made within 36 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company, except as provided in Section 10. As used in this Agreement, the term Underwriter includes any person substituted for an Underwriter under this Section. Nothing herein will relieve a defaulting Underwriter from liability for its default.
10. Survival of Certain Representations and Obligations. The respective indemnities, agreements, representations, warranties and other statements of the Company or its officers and of the several Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of any Underwriter, the Company or any of their respective representatives, officers or directors or any controlling person, and will survive delivery of and payment for the Offered Securities. If the purchase of the Offered Securities by the Underwriters is not consummated for any reason other than solely because of the termination of this Agreement pursuant to Section 9 hereof, the Company will reimburse the Underwriters for all out-of-pocket expenses (including fees and disbursements of counsel) reasonably incurred by them in connection with the offering of the Offered Securities, and the respective obligations of the Company and the Underwriters pursuant to Section 8 hereof shall remain in effect. In addition, if any Offered Securities have been purchased hereunder, the representations and warranties in Section 2 and all obligations under Section 5 shall also remain in effect.
11. Notices. All communications hereunder will be in writing and will be mailed, delivered or telegraphed and confirmed, to the addresses below:
If to the Representatives:
HSBC Securities (USA) Inc.
452 Fifth Avenue
New York, NY 10018
Facsimile: +1 212 525 0238
Attention: Transaction Management Group
Morgan Stanley & Co. LLC
1585 Broadway
New York, NY 10036
Facsimile: +1 212 507 8999
Attention: Investment Banking Division
Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, NY 10010-3629
Facsimile: +1 646 935 3690
Attention: LCD-IBD
16
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
50 Rockefeller Plaza
NY1-050-12-01
New York, NY 10020
Facsimile: +1 212 901 7881
Attention: High Grade Debt Capital Markets Transaction Management/Legal
provided, however, that any notice to an Underwriter pursuant to Section 8 will be mailed, delivered or telegraphed and confirmed to such Underwriter.
If to the Company:
Southern Copper Corporation
Edificio Parque Reforma
Campos Elíseos 400
Col. Lomas de Chapultepec
C.P. 11000 México, D.F., México
Facsimile: +52 55 1103 5583
Attention: General Counsel
12. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section 8, and no other person will have any right or obligation hereunder.
13. Representation of Underwriters. The Representatives will act for the several Underwriters in connection with this financing, and any action under this Agreement taken by the Representatives jointly will be binding upon all the Underwriters.
14. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement.
15. Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) No Other Relationship. The Representatives have been retained solely to act as underwriters in connection with the sale of Offered Securities and that no fiduciary, advisory or agency relationship between the Company and the Representatives has been created in respect of any of the transactions contemplated by this Agreement or the Final Prospectus, irrespective of whether the Representatives have advised or are advising the Company on other matters;
(b) Arms Length Negotiations. The price of the Offered Securities set forth in this Agreement was established by the Company following discussions and arms-length negotiations with the Representatives and the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) Absence of Obligation to Disclose. The Company has been advised that the Representatives and their affiliates are engaged in a broad range of transactions which may involve interests that differ from those of the Company and that the Representatives have no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship; and
(d) Waiver. The Company waives, to the fullest extent permitted by law, any claims it may have against the Representatives for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that the Representatives shall have no liability (whether direct or indirect) to the Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including stockholders, employees or creditors of the Company.
17
16. USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients
17. Applicable Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
The Company hereby submits to the non-exclusive jurisdiction of the Federal and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. The Company irrevocably and unconditionally waives any objection to the laying of venue of any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in Federal and state courts in the Borough of Manhattan in The City of New York and irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such suit or proceeding in any such court has been brought in an inconvenient forum.
[Signature pages follow]
18
If the foregoing is in accordance with the Representatives understanding of our agreement, kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a binding agreement between the Company and the several Underwriters in accordance with its terms.
Very truly yours, | ||||
SOUTHERN COPPER CORPORATION | ||||
By: | /s/ Genaro Guerrero Diaz Mercado | |||
Name: | Genaro Guerrero Diaz Mercado | |||
Title: | Chief Financial Officer |
Signature page to
Underwriting Agreement
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first above written. | ||||
Acting on behalf of themselves and as the Representatives of the several Underwriters | ||||
CREDIT SUISSE SECURITIES (USA) LLC | ||||
By: | /s/ Michael H. Schoen | |||
Name: | Michael H. Schoen | |||
Title: | Managing Director |
Signature page to
Underwriting Agreement
HSBC SECURITIES (USA) INC. | ||
By: | /s/ Elsa Y. Wang | |
Name: | Elsa Y. Wang | |
Title: | Vice President |
Signature page to
Underwriting Agreement
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED | ||
By: | /s/ Maxim Volkov | |
Name: | Maxim Volkov | |
Title: | Managing Director |
Signature page to
Underwriting Agreement
MORGAN STANLEY & CO. LLC | ||
By: | /s/ Andrew G. Schwendiman | |
Name: | Andrew G. Schwendiman | |
Title: | Managing Director |
Signature page to
Underwriting Agreement
SCHEDULE A
Underwriter |
Principal Amount of 2022 Notes |
|||
HSBC Securities (USA) Inc. |
U.S.$ | 99,000,000 | ||
Morgan Stanley & Co. LLC |
U.S.$ | 99,000,000 | ||
Credit Suisse Securities (USA) LLC |
U.S.$ | 51,000,000 | ||
Merrill Lynch, Pierce, Fenner & Smith Incorporated |
U.S.$ | 51,000,000 | ||
|
|
|||
Total of 2022 Notes |
U.S.$ | 300,000,000 | ||
|
|
|||
Underwriter |
Principal Amount of 2042 Notes |
|||
HSBC Securities (USA) Inc. |
U.S.$ | 396,000,000 | ||
Morgan Stanley & Co. LLC |
U.S.$ | 396,000,000 | ||
Credit Suisse Securities (USA) LLC |
U.S.$ | 204,000,000 | ||
Merrill Lynch, Pierce, Fenner & Smith Incorporated |
U.S.$ | 204,000,000 | ||
|
|
|||
Total of 2042 Notes |
U.S.$ | 1,200,000,000 | ||
|
|
Schedule A
SCHEDULE B
1. | General Use Free Writing Prospectuses (included in the General Disclosure Package) |
General Use Issuer Free Writing Prospectus includes each of the following documents:
1. Final term sheet, dated November 5, 2012, filed with the SEC on November 6, 2012.
2. | Other Information Included in the General Disclosure Package |
The following information is also included in the General Disclosure Package:
None
Schedule B
SCHEDULE C
Material Subsidiaries of Southern Copper Corporation
Subsidiary |
Jurisdiction of Organization |
Percent Owned by the Company | ||
Compañía Minera Los Tolmos S.A. |
Peru | 97.31 | ||
Southern Peru Limited |
Delaware | 100.00 | ||
Americas Sales Company, Inc. |
Delaware | 100.00 | ||
Minera México S.A. de C.V. |
Mexico | 99.95 | ||
Buenavista del Cobre, S.A. de C.V. |
Mexico | 99.99 | ||
Cobrentas Arrendadora, S.A. de C.V. |
Mexico | 98.14 | ||
Indumirentas Arrendadora, S.A. de C.V. |
Mexico | 98.12 | ||
Industrial Minera México S.A. de C.V. |
Mexico | 99.99 | ||
Mexcanrentas Arrendadora, S.A. de C.V. |
Mexico | 100.00 | ||
Mexicana de Cobre, S.A. de C.V. |
Mexico | 98.14 | ||
Mexicana del Arco, S.A. de C.V. |
Mexico | 99.99 | ||
México Compañía Inmobiliaria, S.A. de C.V. |
Mexico | 99.99 | ||
Operadora de Minas e Instalaciones Mineras, S.A. de C.V. |
Mexico | 99.99 | ||
Minera México Internacional, Inc. |
Delaware | 100.00 | ||
SDG México Apoyo Administrativo, S.A. de C.V. |
Mexico | 99.90 | ||
Servicios de Apoyo Administrativo, S.A. de C.V. |
Mexico | 99.90 |
Schedule C
EXHIBIT 4.1
Southern Copper Corporation
as Issuer
and
Wells Fargo Bank, National Association,
as Trustee
THIRD SUPPLEMENTAL INDENTURE
Dated as of November 8, 2012
to
INDENTURE
Dated as of April 16, 2010
3.500% Notes due 2022
TABLE OF CONTENTS
Page | ||||||
ARTICLE 1. | ||||||
DEFINITIONS | ||||||
Section 1.1. |
Definition of Terms |
2 | ||||
ARTICLE 2. | ||||||
GENERAL TERMS AND CONDITIONS OF THE NOTES | ||||||
Section 2.1. |
Designation and Principal Amount |
7 | ||||
Section 2.2. |
Maturity |
7 | ||||
Section 2.3. |
Further Issues |
7 | ||||
Section 2.4. |
Form of Payment |
7 | ||||
Section 2.5. |
Global Securities |
7 | ||||
Section 2.6. |
Interest |
7 | ||||
Section 2.7. |
Authorized Denominations |
7 | ||||
Section 2.8. |
Redemption |
8 | ||||
Section 2.9. |
Limitation on Liens |
8 | ||||
Section 2.10. |
Limitation on Sale and Leaseback Transactions |
9 | ||||
Section 2.11. |
Repurchase at Option of Holders Upon Change of Control Triggering Event |
10 | ||||
Section 2.12. |
Merger, Consolidation and Sale of Assets |
11 | ||||
Section 2.13. |
Events of Default |
12 | ||||
Section 2.14. |
Appointment of Agents |
13 | ||||
Section 2.15. |
Defeasance upon Deposit of Moneys or U.S. Government Obligations |
13 | ||||
Section 2.16. |
Amendments |
14 | ||||
ARTICLE 3. | ||||||
FORM OF NOTES | ||||||
Section 3.1. |
Form of Notes |
14 | ||||
ARTICLE 4. | ||||||
ORIGINAL ISSUE OF NOTES | ||||||
Section 4.1. |
Original Issue of Notes |
14 |
i
ARTICLE 5. | ||||||
MISCELLANEOUS | ||||||
Section 5.1. |
Ratification of Indenture |
14 | ||||
Section 5.2. |
Trustee Not Responsible for Recitals |
15 | ||||
Section 5.3. |
Governing Law |
15 | ||||
Section 5.4. |
Severability |
15 | ||||
Section 5.5. |
Counterparts |
15 | ||||
EXHIBIT A Form of Notes |
A-1 |
ii
THIRD SUPPLEMENTAL INDENTURE, dated as of November 8, 2012 (this Third Supplemental Indenture), between Southern Copper Corporation, a corporation duly organized and existing under the laws of the State of Delaware (the Company), and Wells Fargo Bank, National Association, a national banking association, as trustee (the Trustee).
WHEREAS, the Company and the Trustee executed and delivered the indenture, dated as of April 16, 2010 (the Base Indenture, as supplemented by a First Supplemental Indenture and a Second Supplemental Indenture, in each case dated as of April 16, 2010, and a Fourth Supplemental Indenture, dated as of November 8, 2012, and, together with this Third Supplemental Indenture, the Indenture), to provide for the issuance of the Companys debt securities (the Securities), to be issued in one or more series;
WHEREAS, pursuant to the terms of the Base Indenture, the Company desires to provide for the establishment of a new series of its notes under the Base Indenture to be known as its 3.500% Notes due 2022 (the Notes), the form and substance and the terms, provisions and conditions thereof to be set forth as provided in the Base Indenture and this Third Supplemental Indenture;
WHEREAS, the Board of Directors of the Company pursuant to resolutions duly adopted on October 18, 2012, have duly authorized the issuance of the Notes, and has authorized the proper officers of the Company to execute any and all appropriate documents necessary or appropriate to effect each such issuance;
WHEREAS, this Third Supplemental Indenture is being entered into pursuant to the provisions of Section 14.01 of the Base Indenture;
WHEREAS, the Company has requested that the Trustee execute and deliver this Third Supplemental Indenture; and
WHEREAS, all things necessary to make this Third Supplemental Indenture a valid and legally binding agreement of the Company, in accordance with its terms, and to make the Notes, when executed by the Company and authenticated and delivered by the Trustee, the valid and legally binding obligations of the Company, have been performed, and the execution and delivery of this Third Supplemental Indenture has been duly authorized in all respects;
NOW THEREFORE, in consideration of the premises and the purchase and acceptance of the Notes by the Holders thereof, and for the purpose of setting forth, as provided in the Base Indenture, the forms and terms of the Notes, the Company covenants and agrees, with the Trustee, as follows:
1
ARTICLE 1.
DEFINITIONS
Section 1.1. Definition of Terms. Unless the context otherwise requires:
(a) each term defined in the Base Indenture has the same meaning when used in this Third Supplemental Indenture except as otherwise defined in this Third Supplemental Indenture;
(b) the singular includes the plural and vice versa; and
(c) headings are for convenience of reference only and do not affect interpretation.
(d) a reference to a Section or Article is to a Section or Article of this Third Supplemental Indenture unless otherwise indicated.
(e) The following terms have the meanings given to them in this Section 1.1(e):
(i) Affiliate means, with respect to any specified Person, any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For 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.
(ii) Attributable Value in respect of a Sale and Leaseback Transaction means, as to any particular lease under which the Company or any Subsidiary is at any time liable as lessee and any date as of which the amount thereof is to be determined, the total net obligations of the lessee for rental payments (excluding, however, any amounts required to be paid by such lessee, whether or not designated as rent or additional rent, on account of maintenance and repairs, services, insurance, taxes, assessments, water rates or similar charges and any amounts required to be paid by such lessee thereunder contingent upon monetary inflation or the amount of sales, maintenance and repairs, insurance, taxes, assessments, water rates or similar charges) during the remaining term of the lease (including any period for which such lease has been extended or may, at the option of the lessor, be extended) discounted from the respective due dates thereof to such date at a rate per annum equivalent to the interest rate inherent in such lease (as determined in good faith by the Company in accordance with generally accepted financial practice).
(iii) Change of Control, at any date, means the failure of Mr. German Larrea Mota-Velasco and his immediate family members, including his spouse, parents, siblings, and lineal descendents, estates and heirs, or any trust or other investment vehicle for the primary benefit of any of the foregoing, to possess, directly or indirectly, whether through ownership of Voting Stock, contract or otherwise, the power to elect or designate for election the majority of the board of directors of the Company or to direct or cause the direction of the management or policies of the Company.
2
(iv) Change of Control Offer shall have the meaning assigned to it in Section 2.11(a).
(v) Change of Control Purchase Price shall have the meaning assigned to it in Section 2.11(a).
(vi) Change of Control Triggering Event means the occurrence of both a Change of Control and a Rating Decline.
(vii) Commission means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, as amended, 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.
(viii) Comparable Treasury Issue means the United States Treasury security selected by the Independent Investment Banker as having a maturity comparable to the remaining term (remaining life) of the Notes that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such series of Notes.
(ix) Comparable Treasury Price means, with respect to any redemption date, (i) the average of five Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (ii) if the Independent Investment Banker is unable to obtain at least five such Reference Treasury Dealer Quotations, the average of all Reference Treasury Dealer Quotations obtained by the Independent Investment Banker.
(x) Consolidated Net Tangible Assets means the total of all assets appearing on a consolidated balance sheet of the Company and its Subsidiaries, net of all applicable reserves and deductions, but excluding goodwill, trade names, trademarks, patents, unamortized debt discount and all other like intangible assets, less the aggregate of the current liabilities of the Company and its Subsidiaries appearing on such balance sheet as determined in accordance with U.S. GAAP.
(xi) Debt means indebtedness for borrowed money.
(xii) DTC shall have the meaning assigned to it in Section 2.5.
(xiii) Event of Default shall have the meaning assigned to it in Section 2.12.
(xiv) Fitch means Fitch Ratings, Ltd. or any successor to the rating agency business thereof.
3
(xv) Guarantee means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person, direct or indirect, contingent or otherwise, or entered into for the purpose of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided, however, that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business. The term Guarantee used as a verb has a corresponding meaning. The term Guarantee shall not apply to a guarantee of intercompany indebtedness among the Company and the Subsidiaries or among the Subsidiaries.
(xvi) Incurrence Time shall have the meaning assigned to it in Section 2.9(b).
(xvii) Indebtedness means, with respect to any person (without duplication):
(A) | any obligation of such Person (a) for borrowed money, under any reimbursement obligation relating to a letter of credit (other than letters of credit payable to suppliers in the ordinary course of business), under any reimbursement obligation relating to a financial bond or under any reimbursement obligation relating to a similar instrument or agreement, (b) for the payment of money relating to any obligations under any capital lease of real or personal property, or (c) under any agreement or instrument in respect of an interest rate or currency swap, exchange or hedging transaction or other financial derivatives transaction (other than (x) any such agreements or instruments directly related to Indebtedness otherwise incurred in compliance with the Indenture and (y) any such agreements as are entered into in the ordinary course of business and are not for speculative purposes or the obtaining of credit); and |
(B) | any amendment, supplement, modification, deferral, renewal, extension or refunding of any liability of the types referred to in clause (1) above. For the purpose of determining any particular amount of Indebtedness under this definition, Guarantees of (or obligations with respect to letters of credit) Indebtedness otherwise included in the determination of such amount shall not be included. |
(xviii) Independent Investment Banker means one of the Reference Treasury Dealers appointed by the Company from time to time to act as the Independent Investment Banker.
4
(xix) Lien means any mortgage, pledge, security interest or lien.
(xx) Moodys means Moodys Investors Service, Inc. or any successor to the rating agency business thereof.
(xxi) Person means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.
(xxii) Rating Agencies means Moodys, S&P and Fitch.
(xxiii) Rating Decline means if on, or within 90 days after, the earlier of the date of public notice of the occurrence of a Change of Control or of the intention of the Company to effect a Change of Control (which period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by any of the Rating Agencies), the rating of the Notes of the applicable series by at least one of the Rating Agencies shall be decreased by one or more gradations (including gradations within categories as well as between rating categories).
(xxiv) Reference Treasury Dealer means any one of HSBC Securities (USA) Inc., Morgan Stanley & Co. LLC, Credit Suisse Securities (USA) LLC, and Merrill Lynch, Pierce, Fenner & Smith Incorporated and their respective successors and two other nationally recognized investment banking firm that is a Primary Treasury Dealer (as defined below) selected from time to time by the Company; provided, however, that if any of the foregoing shall cease to be a primary US Government securities dealer in New York City (a Primary Treasury Dealer), the Company shall substitute therefor another nationally recognized investment banking firm that is a Primary Treasury Dealer.
(xxv) Reference Treasury Dealer Quotation means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third business day preceding that redemption date.
(xxvi) Remaining Scheduled Payments means, with respect to each note to be redeemed, the remaining scheduled payments of the principal thereof and interest thereon that would be due after the related redemption date but for such redemption; provided, however, that, if that redemption date is not an interest payment date with respect to such Notes, the amount of the next succeeding scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to that redemption date.
(xxvii) S&P means Standard & Poors Ratings Services or any successor to the rating agency business thereof.
(xxviii) Sale and Leaseback Transaction means any transaction or series of related transactions pursuant to which the Company or any Subsidiary sells or transfers
5
any property to any Person with the intention of taking back a lease of such property pursuant to which the rental payments are calculated to amortize the purchase price of such property substantially over the useful life thereof and such property is in fact so leased.
(xxix) Significant Subsidiary means a Subsidiary of the Company which would be a significant subsidiary within the meaning of Rule 1-02 under Regulation S-X promulgated by the Commission as in effect on the date of the Indenture, assuming the Company is the registrant referred to in such definition.
(xxx) Specified Property means any mineral property (other than inventory or receivables), concentrator, smelter, refinery or rod plant of the Company or any Subsidiary and any capital stock or Indebtedness of any Subsidiary directly owning any such property, concentrator, smelter, refinery or rod plant. This term excludes any mineral property, concentrator, smelter or refinery or rod plant of the Company or any Subsidiary that in the good faith opinion of the Companys board of directors is not materially important to the total business conducted by the Company and its Subsidiaries, taken as a whole.
(xxxi) Subsidiary means any corporation or other business entity of which the Company owns or controls (either directly or through one or more other Subsidiaries) more than 50% of the issued share capital or other ownership interests, in each case having ordinary voting power to elect or appoint directors, managers or trustees of such corporation or other business entity (whether or not capital stock or other ownership interests or any other class or classes shall or might have voting power upon the occurrence of any contingency). For the avoidance of doubt, SPCC Peru Branch shall not be considered a Subsidiary of the Company.
(xxxii) Treasury Rate means, with respect to any redemption date, the rate per annum equal to the semi-annual equivalent yield to maturity (computed as of the third business day immediately preceding that redemption date) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for that redemption date.
(xxxiii) U.S. GAAP with respect to any computations required or permitted hereunder, means generally accepted accounting principles in effect in the United States as in effect from time to time; provided, however if the Company is required by the Commission to adopt (or is permitted to adopt and so adopts) a different accounting framework, including but not limited to the International Financial Reporting Standards, GAAP shall mean such new accounting framework as in effect from time to time, including, without limitation, in each case, those accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession.
(xxxiv) Voting Stock means capital stock issued by a corporation, or equivalent interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right to vote has been suspended by the happening of such a contingency.
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ARTICLE 2.
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 2.1. Designation and Principal Amount. There is hereby authorized and established a new series of Securities under the Base Indenture, designated as the 3.500% Notes due 2022, which is not limited in aggregate principal amount. The initial aggregate principal amount of the Notes to be issued under this Third Supplemental Indenture shall be limited to $300,000,000. Any additional amounts of such series to be issued shall be set forth in a Company Order.
Section 2.2. Maturity. The stated maturity of principal for the Notes will be November 8, 2022.
Section 2.3. Further Issues. The Company may from time to time, without the consent of the Holders of the Notes, issue additional notes of such series. Any such additional notes will have the same ranking, interest rate, maturity date and other terms as the Notes. Any such additional notes, together with the Notes herein provided for, will constitute a single series of Securities under the Indenture.
Section 2.4. Form of Payment. Principal of, premium, if any, and interest on the Notes shall be payable in U.S. dollars.
Section 2.5. Global Securities. Upon the original issuance, the Notes will be represented by one or more Global Securities. The Company will issue the Notes in denominations of $2,000 and in integral multiples of $1,000 in excess thereof and will deposit the Global Securities with the Trustee as custodian for The Depository Trust Company (DTC), in New York, New York, and register the Global Securities in the name of DTC or its nominee.
Section 2.6. Interest. The Notes will bear interest (computed on the basis of a 360-day year consisting of twelve 30-day months) from November 8, 2012 at the rate of 3.500% per annum, payable semiannually in arrears; interest payable on each interest payment date will include interest accrued from November 8, 2012, or from the most recent interest payment date to which interest has been paid or duly provided for; the interest payment dates on which such interest shall be payable are May 8 and November 8 of each year, commencing on May 8, 2013; and the record date for the interest payable on any interest payment date is the close of business on April 20 or October 20, as the case may be, next preceding the relevant Interest Payment Date.
Section 2.7. Authorized Denominations. The Notes shall be issuable in denominations of $2,000 and in integral multiples of $1,000 in excess thereof.
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Section 2.8. Redemption. The Notes are subject to redemption at the option of the Company as set forth in the forms of Note attached hereto as Exhibit A.
Section 2.9. Limitation on Liens
(a) The Company will not, nor will it permit any Subsidiary to, issue, assume or suffer to exist any Indebtedness or Guarantee, if such Indebtedness or Guarantee is secured by a Lien upon any Specified Property, unless, concurrently with the issuance or assumption of such Indebtedness or Guarantee or the creation of such Lien, the Notes (together with, at the Companys option, any other indebtedness of or guarantee by the Company or its Subsidiaries then existing or thereafter created which is not subordinated to the Notes) shall be secured equally and ratably with (or at the Companys option prior to) such Indebtedness or Guarantee for so long as such Indebtedness or Guarantee is so secured; provided, however, that the foregoing restriction shall not apply to:
(i) any Lien on (a) any Specified Property acquired, constructed, developed, extended or improved by the Company or any Subsidiary (singly or together with other Persons) after the date of the Indenture or any property reasonably incidental to the use or operation of such Specified Property (including any real property on which such Specified Property is located), or (b) any shares or other ownership interest in, or any Indebtedness of, any Person which holds, owns or is entitled to such property, products, revenue or profits, provided that in the case of both clause (a) and (b) above, such Lien is created, incurred or assumed (x) during the period such Specified Property was being constructed, developed, extended or improved, or (y) contemporaneously with, or within 360 days after, such acquisition or the completion of such construction, development, extension or improvement in order to secure or provide for the payment of all or any part of the purchase price or other consideration of such Specified Property or the other costs of such acquisition, construction, development, extension or improvement (including costs such as escalation, interest during construction and financing and refinancing costs);
(ii) any Lien on any Specified Property existing at the time of acquisition thereof and which (a) is not created as a result of or in connection with or in anticipation of such acquisition and (b) does not attach to any other Specified Property other than the Specified Property so acquired;
(iii) any Lien on any Specified Property acquired from a Person that is merged with or into the Company or any Subsidiary or any Lien existing on Specified Property of any Person at the time such Person becomes a Subsidiary, in either such case which (a) is not created as a result of or in connection with or in anticipation of any such transaction and (b) does not attach to any other Specified Property other than the Specified Property so acquired;
(iv) any Lien which secures Indebtedness or a Guarantee owing by a Subsidiary to the Company or any other Subsidiary;
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(v) any Liens on any Specified Property in favor of the government of the United States, Mexico or Peru or of any other country or any political subdivision thereof, to secure payments pursuant to any contract with such government or to any statute to which the Company or any of its Subsidiaries is subject;
(vi) any Lien existing on the date of this Third Supplemental Indenture; or
(vii) any extension, renewal or replacement (or successive extensions, renewals or replacements) in whole or in part, of any Lien referred to in the foregoing clauses (i) through (vi) inclusive; provided that the principal amount of Indebtedness or Guarantee secured thereby shall not exceed the principal amount of Indebtedness or Guarantee so secured at the time of such extension, renewal or replacement plus an amount necessary to pay any fees and expenses, including premiums and defeasanse costs related to such transaction, and that such extension, renewal or replacement shall be limited to all or a part of the property which secured the Lien so extended, renewed or replaced (plus improvements on such property).
(b) Notwithstanding the foregoing, the Company or any Subsidiary may issue or assume Indebtedness or a Guarantee secured by a Lien which would otherwise be prohibited under the provisions of the Indenture described in this section or enter into Sale and Leaseback Transactions that would otherwise be prohibited by the provisions of the Indenture described in Section 2.10, provided that the amount of such Indebtedness or Guarantee or the Attributable Value of such Sale and Leaseback Transaction, as the case may be, together with the aggregate amount (without duplication) of (i) Indebtedness or Guarantees outstanding at such time that were previously incurred pursuant to this paragraph by the Company and its Subsidiaries, plus (ii) the Attributable Value of all such Sale and Leaseback Transactions of the Company and its Subsidiaries outstanding at such time that were previously incurred pursuant to the provisions of the Indenture described in Section 2.10 shall not exceed 20% of Consolidated Net Tangible Assets at the time any such Indebtedness or Guarantee is issued or assumed by the Company or any Subsidiary or at the time any such Sale and Leaseback Transaction is entered into.
(c) For the avoidance of doubt, the sale or other transfer of (i) any minerals in place for a period of time until, or in an amount such that the purchaser will realize therefrom a specified amount of money (however determined) or a specified amount of such minerals or (ii) any other interest in property of the character commonly referred to as a production payment, shall not constitute the incurrence of Indebtedness or a Guarantee secured by a Lien.
Section 2.10. Limitation on Sale and Leaseback Transactions.
(a) Neither the Company nor any Subsidiary may enter into any Sale and Leaseback Transaction with respect to any Specified Property, unless either (i) the Company or such Subsidiary would be entitled pursuant to the provisions of the Indenture described above under Section 2.9 to issue or assume Indebtedness or a Guarantee (in an amount equal to the Attributable Value with respect to such Sale and Leaseback Transactions) secured by a Lien on such Specified Property without equally and ratably securing the Notes of such series; (ii) within 360 days of such Sale and Leaseback Transaction, the Company or such Subsidiary applies or
9
causes to be applied, in the case of a sale or transfer for cash, an amount equal to 85% of the net proceeds thereof and, in the case of a sale or transfer otherwise than for cash, an amount equal to the fair market value (as determined in good faith by the board of directors of the Company) of the Specified Property so leased to: (A) to the retirement, within 360 days after the effective date of such Sale and Leaseback Transaction, of (x) Indebtedness of the Company ranking at least pari passu in right of payment with the Notes of such series or (y) Indebtedness of any Subsidiary of the Company, in each case owing to a Person other than the Company or any Affiliate of the Company, or (B) to the acquisition, purchase, construction, development, extension or improvement of any property or assets of the Company or any Subsidiary used or to be used by or for the benefit of the Company or any Subsidiary in the ordinary course of business; or (iii) the Company or such Subsidiary equally and ratably secures the Notes of such series as described in Section 2.9.
(b) The restrictions set forth in paragraph (a) above shall not apply to any transactions providing for a lease for a term of less than three years.
Section 2.11. Repurchase at Option of Holders Upon Change of Control Triggering Event.
(a) Upon the occurrence of a Change of Control Triggering Event, each Holder of Notes will have the right to require the Company to repurchase all or any part of such Holders Notes pursuant to the offer described below (the Change of Control Offer) at a purchase price (the Change of Control Purchase Price) equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to the purchase date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date).
(b) Within 30 days following any Change of Control Triggering Event, the Company shall send, by first-class mail, with a copy to the Trustee, to each Holder of Notes, at such Holders address appearing in the register, a notice stating:
(i) that a Change of Control Triggering Event has occurred and a Change of Control Offer is being made pursuant to this Section 2.11 and that all Notes validly tendered will be accepted for payment;
(ii) the Change of Control Purchase Price and the purchase date, which shall be, subject to any contrary requirements of applicable law, a Business Day no earlier than thirty (30) days nor later than sixty (60) days from the date such notice is mailed;
(iii) the circumstances and relevant facts regarding the Change of Control Triggering Event; and
(iv) the procedures that Holders of Notes must follow in order to validly tender their Notes (or portions thereof) for payment and the procedures that Holders of Notes must follow in order to withdraw an election to tender Notes (or portions thereof) for payment.
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(c) The Company will not be required to make a Change of Control Offer following a Change of Control Triggering Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Third Supplemental Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
(d) The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the covenant described above, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this covenant by virtue of such compliance.
(e) The Companys obligation to make an offer to repurchase the Notes as a result of a Change of Control Triggering Event may be waived or modified at any time prior to the occurrence of such Change of Control Triggering Event with the written consent of the holders of a majority in principal amount of the Notes, as set forth in Article IX of the Base Indenture.
Section 2.12. Merger, Consolidation and Sale of Assets.
(a) For so long as the Notes are outstanding, the Company may not consolidate with or merge into any other corporation or convey or transfer its properties and assets substantially as an entirety to any Person, unless (i) the successor Person shall be a corporation organized and existing under the laws of the United States (or any State thereof or the District of Columbia) and shall expressly assume, by a supplemental indenture, the due and punctual payment of the principal of and interest on all the outstanding Notes of such series and the performance of every covenant in this Third Supplemental Indenture on the part of the Company to be performed or observed, (ii) immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing, and (iii) the Company shall have delivered to the Trustee an Officers Certificate and Opinion of Counsel stating that all conditions precedent set forth in the indenture relating to the consummation of such consolidation, merger, conveyance or transfer and entering into of such supplemental indenture have been met. In case of any such consolidation, merger conveyance or transfer (other than a lease), such successor corporation will succeed to and be substituted for the Company as obligor on the Notes of the applicable series, with the same effect as if it had been named in this Third Supplemental Indenture as such obligor.
(b) For purposes of this Section 2.12, the conveyance or transfer of all the property of one or more Subsidiaries of the Company which property, if held by the Company instead of such Subsidiaries, would constitute all or substantially all the property of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all the property of the Company.
11
Section 2.13. Events of Default.
(a) The term Event of Default with respect to the Notes shall mean
(i) default in the payment of the principal of any note issued pursuant to this Third Supplemental Indenture after any such principal becomes due in accordance with the terms thereof, upon redemption or otherwise; or default in the payment of any interest in respect of such Notes if such default continues for 30 days after any such interest becomes due in accordance with the terms hereof;
(ii) failure to observe or perform any other covenant or agreement contained in the Notes issued pursuant to this Third Supplemental Indenture, and such failure continuing for 60 days after notice, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the outstanding Notes, specifying such failure and requiring it to be remedied and stating that such notice constitutes a notice of default under this Third Supplemental Indenture;
(iii) failure by the Company or any of its Significant Subsidiaries to pay when due (whether at maturity, upon redemption or acceleration or otherwise) the principal of any Indebtedness in excess, individually or in the aggregate of US$50 million (or the equivalent thereof in other currencies), if such failure shall continue for more than the period of grace, if any, applicable thereto and the period for payment has not been expressly extended;
(iv) a decree or order by a court having jurisdiction shall have been entered adjudging the Company or any of its Significant Subsidiaries as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, concurso mercantil or quiebra of or by the Company or any of its Significant Subsidiaries and such decree or order shall have continued undischarged or unstayed for a period of 120 days; or a decree or order of a court having jurisdiction for the appointment of a receiver or liquidator or sindico or conciliador for the liquidation or dissolution of the Company or any of its Significant Subsidiaries, shall have been entered, and such decree or order shall have continued undischarged and unstayed for a period of 120 days; provided, however, that any Significant Subsidiary may be liquidated or dissolved if, pursuant to such liquidation or dissolution, all or substantially all of its assets are transferred to the Company or another Significant Subsidiary of the Company; or
(v) the Company or any of its Significant Subsidiaries shall institute any proceeding to be adjudicated as voluntary bankrupt, or shall consent to the filing of a bankruptcy proceeding against it, or shall file a petition or answer or consent seeking reorganization, concurso mercantil or quiebra, or shall consent to the filing of any such petition, or shall consent to the appointment of a receiver or liquidator or sindico or conciliador or trustee or assignee in bankruptcy or insolvency of it or its property.
(b) If an Event of Default specified in clause (a)(iv) or (a)(v) above shall occur, the maturity of all outstanding Notes shall automatically be accelerated and the principal
12
amount of the Notes, together with accrued interest thereon, shall be immediately due and payable. If any other Event of Default shall occur and be continuing, the Trustee or the Holders of not less than 25% of the aggregate principal amount of the Notes then outstanding may, by written notice to the Company (and to the Trustee if given by Holders), declare the principal amount of the applicable Notes, together with accrued interest thereon, immediately due and payable. The right of the Holders to give such acceleration notice shall terminate if the event giving rise to such right shall have been cured before such right is exercised. Any such declaration may be annulled and rescinded by written notice from the Trustee or the Holders of a majority of the aggregate principal amount of the Notes then outstanding to the Company if all amounts then due with respect to the Notes are paid (other than amount due solely because of such declaration) and all other defaults with respect to the Notes are cured.
(c) Subject to the provisions of the Base Indenture and this Third Supplemental Indenture relating to the duties of the Trustee, in case the Company shall fail to comply with its obligations under this Third Supplemental Indenture or the Notes and such failure shall be continuing, the Trustee will be under no obligation to exercise any of its rights or powers under the Third Supplemental Indenture at the request or direction of any of the Holders, unless such Holders shall have offered to the Trustee indemnity reasonably satisfactory to it. The Holders of a majority in aggregate principal amount of the outstanding Notes will 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, to the extent such action does not conflict with the provisions of this Third Supplemental Indenture or applicable law.
(d) No Holder of any note will have any right to institute any proceeding with respect to the Third Supplemental Indenture or the Notes or for any remedy thereunder, unless such Holder has previously given to the Trustee written notice of a continuing Event of Default and unless also the Holders of at least 25% in aggregate principal amount of the outstanding Notes shall have made a written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee, such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to it, the Trustee for 60 days after receipt of such notice has failed to institute any such proceeding and no direction inconsistent with such request shall have been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the outstanding Notes. However, such limitations do not apply to a suit individually instituted by a Holder of a note for enforcement of payment of the principal of, or interest on, such note on or after respective due dates expressed in such note.
Section 2.14. Appointment of Agents. The Trustee will initially be the Security Registrar and Paying Agent for the Notes.
Section 2.15. Defeasance upon Deposit of Moneys or U.S. Government Obligations.
(a) On the first day after the applicable conditions set forth in Section 12.03 of the Base Indenture have been satisfied, the Company at any time may terminate (i) all of its obligations under the Notes and this Third Supplemental Indenture (legal defeasance option) or (ii) its obligations under Sections 2.9, 2.10, 2.11 and 2.12 of this Third Supplemental Indenture and, with respect to the Notes only, Section 10.2 of the Base Indenture, and the operation of
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Sections 2.13(a)(iii), (iv) and (v) of this Third Supplemental Indenture (but, in the case of Sections 2.13(a)(iv) and (v), with respect only to Significant Subsidiaries) (covenant defeasance option). The Company may exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance option.
(b) If the Company exercises its legal defeasance option, payment of the Notes may not be accelerated because of an Event of Default with respect to the Notes. If the Company exercises its covenant defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified in Sections 2.13(a)(ii) (with respect to the covenants identified in clause (a) above), 2.13(a)(iii), 2.13(a)(iv) and 2.13(a)(v) (with respect only to Significant Subsidiaries in the case of Sections 2.13(a)(iv) and (v)).
(c) Notwithstanding clauses (a) and (b) above, the Companys obligations with respect to Sections 3.05, 3.06, 3.07, and 12.09 of the Base Indenture, in each case with respect to the Notes only, shall survive until the Notes have been paid in full.
Section 2.16. Amendments. In addition to the restrictions set forth in Section 14.02 of the Base Indenture, without the consent or affirmative vote of each Holder of Notes affected thereby, an amendment of this Third Supplemental Indenture or the Base Indenture (with respect to the Notes only) may not reduce the premium payable upon a Change of Control Triggering Event or, at any time after a Change of Control Triggering Event has occurred, change the time at which the Change of Control Offer relating thereto must be made or at which the Notes must be repurchased pursuant to such Change of Control Offer.
ARTICLE 3.
FORM OF NOTES
Section 3.1. Form of Notes. The Notes and the Trustees Certificate of Authentication to be endorsed thereon are to be substantially in the form set forth in Exhibit A.
ARTICLE 4.
ORIGINAL ISSUE OF NOTES
Section 4.1. Original Issue of Notes. The Notes may, upon execution of this Third Supplemental Indenture, be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall, upon Company order, authenticate and deliver such Notes as in such Company order provided.
ARTICLE 5.
MISCELLANEOUS
Section 5.1. Ratification of Indenture. The Base Indenture, as supplemented by this Third Supplemental Indenture, is in all respects ratified and confirmed, and this Third Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided; provided that the provisions of this Third Supplemental Indenture apply solely with respect to the Notes.
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Section 5.2. Trustee Not Responsible for Recitals. The recitals herein contained are made by the Company and not by the Trustee, and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representation as to the validity or sufficiency of this Third Supplemental Indenture.
Section 5.3. Governing Law. This Third Supplemental Indenture and each Note shall be deemed to be contracts made under the law of the State of New York, and for all purposes shall be governed by and construed in accordance with such law.
Section 5.4. Severability. In case any provision in this Indenture or in the Notes 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 5.5. Counterparts. This Third Supplemental Indenture may be executed in any number of counterparts each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed, all as of the day and year first above written.
SOUTHERN COPPER CORPORATION, as Issuer | ||
By: | /s/ Hans Flury | |
Name: | Hans A. Flury | |
Title: | Corporate Assistant Secretary |
Signature Page
Third Supplemental Indenture
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee | ||
By: | /s/ Michael Tu | |
Name: | Michael Tu | |
Title: | Assistant Vice President |
Signature Page
Third Supplemental Indenture
EXHIBIT A
[FORM OF FACE OF SECURITY]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (DTC) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
A-1
No. 1 | $300,000,000 As revised by the Schedule of Increases or Decreases in Global Security attached hereto |
3.500% Notes due 2022
CUSIP No. 84265V AF2
SOUTHERN COPPER CORPORATION, a Delaware corporation (herein called the Company, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of three hundred million dollars ($300,000,000), as revised by the Schedule of Increases or Decreases in Global Security attached hereto, on November 8, 2022 and to pay interest thereon from November 8, 2012 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on May 8 and November 8 of each year, commencing on May 8, 2013 at the rate of 3.500% per annum, until the principal hereof is paid or made available for payment. Interest on the Securities will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from November 8, 2012. Interest shall be computed on the basis of a 360-day year of twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Record Date for such interest, which shall be April 20 or October 20, as the case may be, next preceding such Interest Payment Date.
Additional provisions of this Security are set forth on the other side of this Security.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the parties have caused this instrument to be duly executed.
SOUTHERN COPPER CORPORATION | ||
By: |
| |
Name: | ||
Title: | ||
By: |
| |
Name: | ||
Title: |
TRUSTEES CERTIFICATE OF |
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Date of Authentication: | ||
| ||
WELLS FARGO BANK, NATIONAL ASSOCIATION, | ||
as Trustee, certifies that this is one of the Securities referred to in the Indenture. | ||
by: | Authorized Signatory | |
|
A-3
[FORM OF REVERSE SIDE OF SECURITY]
3.500% Notes due 2022
1. | Indenture. |
This Security is one of a duly authorized issue of securities of the Company (herein called the Securities), issued and to be issued in one or more series under an Indenture, dated as of April 16, 2010, as supplemented by a Third Supplemental Indenture, dated November 8, 2012 (as so supplemented, herein called the Indenture), between the Company and Wells Fargo Bank, National Association, as Trustee (herein called the Trustee, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof, initially limited in aggregate principal amount to $300,000,000.
The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the date of the Indenture (the TIA). Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The Securities are subject to all such terms, and Securityholders are referred to the Indenture and the TIA for a statement of those terms.
2. | Method of Payment. |
The Company will pay interest on the Securities (except defaulted interest) to the Persons who are registered holders of Securities at the close of business on the April 20 or October 20, as the case may be, next preceding the interest payment date even if Securities are canceled after the record date and on or before the interest payment date. Holders must surrender Securities to a Paying Agent to collect principal payments. The Company will pay principal and interest in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. Payments in respect of the Securities represented by a Global Security (including principal, premium and interest) will be made by wire transfer of immediately available funds to the accounts specified by The Depository Trust Company. Payments on the Securities will be made at the office or agency of the Paying Agent and Registrar within the city of Minneapolis, Minnesota unless the Company elects to make interest payments by check mailed to the Holders at their address set forth in the register.
3. | Paying Agent and Registrar. |
Initially, the Trustee will act as Paying Agent and Registrar. The Company may appoint and change any Paying Agent, Registrar or co-registrar without notice. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
4. | Optional Redemption. |
(a) Except as described below, the Notes are not redeemable at the Companys option. The Company is not, however, prohibited from acquiring the Notes by means other than a redemption, whether pursuant to a tender offer, open market purchase or otherwise, so long as the acquisition does not otherwise violate the terms of the Indenture.
(b) The Notes will be redeemable, at any time and from time to time, in whole or in part, at the Companys option at a redemption price equal to the greater of (i) 100% of the principal amount of the Notes to be redeemed plus accrued and unpaid interest thereon to, but not including, the date of redemption, and (ii) the sum of the present values of the Remaining Scheduled Payments of principal and interest on the Notes to be redeemed (exclusive of interest accrued to the applicable redemption date) discounted to that redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 27.5 basis points. Notwithstanding the foregoing, payments of interest on the Notes will be payable to the Holders of those Notes registered as such at the close of business on the relevant record dates according to the terms and provisions of the Indenture. In connection with such optional redemption, the following defined terms apply:
(c) Upon presentation in physical, certificated form of any Note to be redeemed in part only, the Company will execute and the Trustee will authenticate and deliver to the Company on the order of the holder thereof, at the Companys expense, a new Note or Notes, of authorized denominations, in principal amount equal to the unredeemed portion of the Note so presented. The Company may at any time purchase Notes in the open market or otherwise at any price. Any Notes that are redeemed or purchased by the Company shall be delivered to the Trustee for cancellation and may not be reissued or resold. Any redemption and notice thereof pursuant to the Indenture may, at the Companys discretion, be subject to the satisfaction of one or more conditions precedent.
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5. | Notice of Redemption. |
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each Holder of the Notes to be redeemed. On and after any redemption date, interest will cease to accrue on the Notes or any portion thereof called for redemption unless the Company defaults in the payment of the redemption price.
6. | Sinking Fund and Highly Leveraged Transactions. |
The Securities are not subject to any sinking fund. The Indenture does not include any debt covenants or other provisions which afford holders of the Securities protection in the event of a highly leveraged transaction.
7. | Repurchase of Securities at the Option of Holders upon Change of Control Triggering Event. |
Upon a Change of Control Triggering Event, Holders of securities will have the right, subject to certain conditions specified in the Indenture, to cause the Company to repurchase all or any part of the Securities of such Holder at a purchase price equal to 101% of the principal amount of the Securities to be repurchased plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date that is on or prior to the date of purchase) as provided in, and subject to the terms of, the Indenture.
8. | Denominations; Transfer; Exchange. |
The Securities of this series are issuable only in registered form without coupons in denominations of $2,000 and in integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable in the security register, upon surrender of this Security for registration of transfer at the Registrar accompanied by a written request for transfer in form satisfactory to the Company and the Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
9. | Persons Deemed Owners. |
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
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10. | Amendment, Waiver. |
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
11. | Defaults and Remedies. |
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
12. | Governing Law. |
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
13. | CUSIP Numbers. |
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Securities and has directed the Trustee to use CUSIP numbers in notices of redemption as a convenience to Securityholders. No representation is made as to the accuracy of such numbers either as printed on the Securities or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder of Securities upon written request and without charge to the Holder a copy of the Indenture which has in it the text of this Security.
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
Date of Exchange |
Amount of increase in Principal Amount of this Global Security |
Amount of decrease in Principal Amount of this Global Security |
Principal Amount of this Global Security following each decrease or increase |
Signature of authorized signatory of Trustee | ||||
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EXHIBIT 4.2
Southern Copper Corporation
as Issuer
and
Wells Fargo Bank, National Association,
as Trustee
FOURTH SUPPLEMENTAL INDENTURE
Dated as of November 8, 2012
to
INDENTURE
Dated as of April 16, 2010
5.250% Notes due 2042
TABLE OF CONTENTS
Page | ||||||
ARTICLE 1. | ||||||
DEFINITIONS | ||||||
Section 1.1. |
Definition of Terms |
2 | ||||
ARTICLE 2. | ||||||
GENERAL TERMS AND CONDITIONS OF THE NOTES | ||||||
Section 2.1. |
Designation and Principal Amount |
7 | ||||
Section 2.2. |
Maturity |
7 | ||||
Section 2.3. |
Further Issues |
7 | ||||
Section 2.4. |
Form of Payment |
7 | ||||
Section 2.5. |
Global Securities |
7 | ||||
Section 2.6. |
Interest |
7 | ||||
Section 2.7. |
Authorized Denominations |
7 | ||||
Section 2.8. |
Redemption |
8 | ||||
Section 2.9. |
Limitation on Liens |
8 | ||||
Section 2.10. |
Limitation on Sale and Leaseback Transactions |
9 | ||||
Section 2.11. |
Repurchase at Option of Holders Upon Change of Control Triggering Event |
10 | ||||
Section 2.12. |
Merger, Consolidation and Sale of Assets |
11 | ||||
Section 2.13. |
Events of Default |
12 | ||||
Section 2.14. |
Appointment of Agents |
13 | ||||
Section 2.15. |
Defeasance upon Deposit of Moneys or U.S. Government Obligations |
13 | ||||
Section 2.16. |
Amendments |
14 | ||||
ARTICLE 3. | ||||||
FORM OF NOTES | ||||||
Section 3.1. |
Form of Notes |
14 | ||||
ARTICLE 4. | ||||||
ORIGINAL ISSUE OF NOTES | ||||||
Section 4.1. |
Original Issue of Notes |
14 |
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ARTICLE 5. | ||||||
MISCELLANEOUS | ||||||
Section 5.1. |
Ratification of Indenture |
14 | ||||
Section 5.2. |
Trustee Not Responsible for Recitals |
15 | ||||
Section 5.3. |
Governing Law |
15 | ||||
Section 5.4. |
Severability |
15 | ||||
Section 5.5. |
Counterparts |
15 | ||||
EXHIBIT A Form of Notes |
A-1 |
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FOURTH SUPPLEMENTAL INDENTURE, dated as of November 8, 2012 (this Fourth Supplemental Indenture), between Southern Copper Corporation, a corporation duly organized and existing under the laws of the State of Delaware (the Company), and Wells Fargo Bank, National Association, a national banking association, as trustee (the Trustee).
WHEREAS, the Company and the Trustee executed and delivered the indenture, dated as of April 16, 2010 (the Base Indenture, as supplemented by a First Supplemental Indenture and a Second Supplemental Indenture, in each case dated as of April 16, 2010, and a Third Supplemental Indenture, dated as of November 8, 2012, and, together with this Fourth Supplemental Indenture, the Indenture), to provide for the issuance of the Companys debt securities (the Securities), to be issued in one or more series;
WHEREAS, pursuant to the terms of the Base Indenture, the Company desires to provide for the establishment of a new series of its notes under the Base Indenture to be known as its 5.250% Notes due 2042 (the Notes), the form and substance and the terms, provisions and conditions thereof to be set forth as provided in the Base Indenture and this Fourth Supplemental Indenture;
WHEREAS, the Board of Directors of the Company pursuant to resolutions duly adopted on October 18, 2012, have duly authorized the issuance of the Notes, and has authorized the proper officers of the Company to execute any and all appropriate documents necessary or appropriate to effect each such issuance;
WHEREAS, this Fourth Supplemental Indenture is being entered into pursuant to the provisions of Section 14.01 of the Base Indenture;
WHEREAS, the Company has requested that the Trustee execute and deliver this Fourth Supplemental Indenture; and
WHEREAS, all things necessary to make this Fourth Supplemental Indenture a valid and legally binding agreement of the Company, in accordance with its terms, and to make the Notes, when executed by the Company and authenticated and delivered by the Trustee, the valid and legally binding obligations of the Company, have been performed, and the execution and delivery of this Fourth Supplemental Indenture has been duly authorized in all respects;
NOW THEREFORE, in consideration of the premises and the purchase and acceptance of the Notes by the Holders thereof, and for the purpose of setting forth, as provided in the Base Indenture, the forms and terms of the Notes, the Company covenants and agrees, with the Trustee, as follows:
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ARTICLE 1.
DEFINITIONS
Section 1.1. Definition of Terms. Unless the context otherwise requires:
(a) each term defined in the Base Indenture has the same meaning when used in this Fourth Supplemental Indenture except as otherwise defined in this Fourth Supplemental Indenture;
(b) the singular includes the plural and vice versa; and
(c) headings are for convenience of reference only and do not affect interpretation.
(d) a reference to a Section or Article is to a Section or Article of this Fourth Supplemental Indenture unless otherwise indicated.
(e) The following terms have the meanings given to them in this Section 1.1(e):
(i) Affiliate means, with respect to any specified Person, any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For 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.
(ii) Attributable Value in respect of a Sale and Leaseback Transaction means, as to any particular lease under which the Company or any Subsidiary is at any time liable as lessee and any date as of which the amount thereof is to be determined, the total net obligations of the lessee for rental payments (excluding, however, any amounts required to be paid by such lessee, whether or not designated as rent or additional rent, on account of maintenance and repairs, services, insurance, taxes, assessments, water rates or similar charges and any amounts required to be paid by such lessee thereunder contingent upon monetary inflation or the amount of sales, maintenance and repairs, insurance, taxes, assessments, water rates or similar charges) during the remaining term of the lease (including any period for which such lease has been extended or may, at the option of the lessor, be extended) discounted from the respective due dates thereof to such date at a rate per annum equivalent to the interest rate inherent in such lease (as determined in good faith by the Company in accordance with generally accepted financial practice).
(iii) Change of Control, at any date, means the failure of Mr. German Larrea Mota-Velasco and his immediate family members, including his spouse, parents, siblings, and lineal descendents, estates and heirs, or any trust or other investment vehicle for the primary benefit of any of the foregoing, to possess, directly or indirectly, whether through ownership of Voting Stock, contract or otherwise, the power to elect or designate for election the majority of the board of directors of the Company or to direct or cause the direction of the management or policies of the Company.
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(iv) Change of Control Offer shall have the meaning assigned to it in Section 2.11(a).
(v) Change of Control Purchase Price shall have the meaning assigned to it in Section 2.11(a).
(vi) Change of Control Triggering Event means the occurrence of both a Change of Control and a Rating Decline.
(vii) Commission means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, as amended, 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.
(viii) Comparable Treasury Issue means the United States Treasury security selected by the Independent Investment Banker as having a maturity comparable to the remaining term (remaining life) of the Notes that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such series of Notes.
(ix) Comparable Treasury Price means, with respect to any redemption date, (i) the average of five Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (ii) if the Independent Investment Banker is unable to obtain at least five such Reference Treasury Dealer Quotations, the average of all Reference Treasury Dealer Quotations obtained by the Independent Investment Banker.
(x) Consolidated Net Tangible Assets means the total of all assets appearing on a consolidated balance sheet of the Company and its Subsidiaries, net of all applicable reserves and deductions, but excluding goodwill, trade names, trademarks, patents, unamortized debt discount and all other like intangible assets, less the aggregate of the current liabilities of the Company and its Subsidiaries appearing on such balance sheet as determined in accordance with U.S. GAAP.
(xi) Debt means indebtedness for borrowed money.
(xii) DTC shall have the meaning assigned to it in Section 2.5.
(xiii) Event of Default shall have the meaning assigned to it in Section 2.12.
(xiv) Fitch means Fitch Ratings, Ltd. or any successor to the rating agency business thereof.
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(xv) Guarantee means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person, direct or indirect, contingent or otherwise, or entered into for the purpose of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided, however, that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business. The term Guarantee used as a verb has a corresponding meaning. The term Guarantee shall not apply to a guarantee of intercompany indebtedness among the Company and the Subsidiaries or among the Subsidiaries.
(xvi) Incurrence Time shall have the meaning assigned to it in Section 2.9(b).
(xvii) Indebtedness means, with respect to any person (without duplication):
(A) | any obligation of such Person (a) for borrowed money, under any reimbursement obligation relating to a letter of credit (other than letters of credit payable to suppliers in the ordinary course of business), under any reimbursement obligation relating to a financial bond or under any reimbursement obligation relating to a similar instrument or agreement, (b) for the payment of money relating to any obligations under any capital lease of real or personal property, or (c) under any agreement or instrument in respect of an interest rate or currency swap, exchange or hedging transaction or other financial derivatives transaction (other than (x) any such agreements or instruments directly related to Indebtedness otherwise incurred in compliance with the Indenture and (y) any such agreements as are entered into in the ordinary course of business and are not for speculative purposes or the obtaining of credit); and |
(B) | any amendment, supplement, modification, deferral, renewal, extension or refunding of any liability of the types referred to in clause (1) above. For the purpose of determining any particular amount of Indebtedness under this definition, Guarantees of (or obligations with respect to letters of credit) Indebtedness otherwise included in the determination of such amount shall not be included. |
(xviii) Independent Investment Banker means one of the Reference Treasury Dealers appointed by the Company from time to time to act as the Independent Investment Banker.
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(xix) Lien means any mortgage, pledge, security interest or lien.
(xx) Moodys means Moodys Investors Service, Inc. or any successor to the rating agency business thereof.
(xxi) Person means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.
(xxii) Rating Agencies means Moodys, S&P and Fitch.
(xxiii) Rating Decline means if on, or within 90 days after, the earlier of the date of public notice of the occurrence of a Change of Control or of the intention of the Company to effect a Change of Control (which period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by any of the Rating Agencies), the rating of the Notes of the applicable series by at least one of the Rating Agencies shall be decreased by one or more gradations (including gradations within categories as well as between rating categories).
(xxiv) Reference Treasury Dealer means any one of HSBC Securities (USA) Inc., Morgan Stanley & Co. LLC, Credit Suisse Securities (USA) LLC, and Merrill Lynch, Pierce, Fenner & Smith Incorporated and their respective successors and two other nationally recognized investment banking firm that is a Primary Treasury Dealer (as defined below) selected from time to time by the Company; provided, however, that if any of the foregoing shall cease to be a primary US Government securities dealer in New York City (a Primary Treasury Dealer), the Company shall substitute therefor another nationally recognized investment banking firm that is a Primary Treasury Dealer.
(xxv) Reference Treasury Dealer Quotation means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third business day preceding that redemption date.
(xxvi) Remaining Scheduled Payments means, with respect to each note to be redeemed, the remaining scheduled payments of the principal thereof and interest thereon that would be due after the related redemption date but for such redemption; provided, however, that, if that redemption date is not an interest payment date with respect to such Notes, the amount of the next succeeding scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to that redemption date.
(xxvii) S&P means Standard & Poors Ratings Services or any successor to the rating agency business thereof.
(xxviii) Sale and Leaseback Transaction means any transaction or series of related transactions pursuant to which the Company or any Subsidiary sells or transfers
5
any property to any Person with the intention of taking back a lease of such property pursuant to which the rental payments are calculated to amortize the purchase price of such property substantially over the useful life thereof and such property is in fact so leased.
(xxix) Significant Subsidiary means a Subsidiary of the Company which would be a significant subsidiary within the meaning of Rule 1-02 under Regulation S-X promulgated by the Commission as in effect on the date of the Indenture, assuming the Company is the registrant referred to in such definition.
(xxx) Specified Property means any mineral property (other than inventory or receivables), concentrator, smelter, refinery or rod plant of the Company or any Subsidiary and any capital stock or Indebtedness of any Subsidiary directly owning any such property, concentrator, smelter, refinery or rod plant. This term excludes any mineral property, concentrator, smelter or refinery or rod plant of the Company or any Subsidiary that in the good faith opinion of the Companys board of directors is not materially important to the total business conducted by the Company and its Subsidiaries, taken as a whole.
(xxxi) Subsidiary means any corporation or other business entity of which the Company owns or controls (either directly or through one or more other Subsidiaries) more than 50% of the issued share capital or other ownership interests, in each case having ordinary voting power to elect or appoint directors, managers or trustees of such corporation or other business entity (whether or not capital stock or other ownership interests or any other class or classes shall or might have voting power upon the occurrence of any contingency). For the avoidance of doubt, SPCC Peru Branch shall not be considered a Subsidiary of the Company.
(xxxii) Treasury Rate means, with respect to any redemption date, the rate per annum equal to the semi-annual equivalent yield to maturity (computed as of the third business day immediately preceding that redemption date) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for that redemption date.
(xxxiii) U.S. GAAP with respect to any computations required or permitted hereunder, means generally accepted accounting principles in effect in the United States as in effect from time to time; provided, however if the Company is required by the Commission to adopt (or is permitted to adopt and so adopts) a different accounting framework, including but not limited to the International Financial Reporting Standards, GAAP shall mean such new accounting framework as in effect from time to time, including, without limitation, in each case, those accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession.
6
(xxxiv) Voting Stock means capital stock issued by a corporation, or equivalent interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right to vote has been suspended by the happening of such a contingency.
ARTICLE 2.
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 2.1. Designation and Principal Amount. There is hereby authorized and established a new series of Securities under the Base Indenture, designated as the 5.250% Notes due 2042, which is not limited in aggregate principal amount. The initial aggregate principal amount of the Notes to be issued under this Fourth Supplemental Indenture shall be limited to $1,200,000,000. Any additional amounts of such series to be issued shall be set forth in a Company Order.
Section 2.2. Maturity. The stated maturity of principal for the Notes will be November 8, 2042.
Section 2.3. Further Issues. The Company may from time to time, without the consent of the Holders of the Notes, issue additional notes of such series. Any such additional notes will have the same ranking, interest rate, maturity date and other terms as the Notes. Any such additional notes, together with the Notes herein provided for, will constitute a single series of Securities under the Indenture.
Section 2.4. Form of Payment. Principal of, premium, if any, and interest on the Notes shall be payable in U.S. dollars.
Section 2.5. Global Securities. Upon the original issuance, the Notes will be represented by one or more Global Securities. The Company will issue the Notes in denominations of $2,000 and in integral multiples of $1,000 in excess thereof and will deposit the Global Securities with the Trustee as custodian for The Depository Trust Company (DTC), in New York, New York, and register the Global Securities in the name of DTC or its nominee.
Section 2.6. Interest. The Notes will bear interest (computed on the basis of a 360-day year consisting of twelve 30-day months) from November 8, 2012 at the rate of 5.250% per annum, payable semiannually in arrears; interest payable on each interest payment date will include interest accrued from November 8, 2012, or from the most recent interest payment date to which interest has been paid or duly provided for; the interest payment dates on which such interest shall be payable are May 8 and November 8 of each year, commencing on May 8, 2013; and the record date for the interest payable on any interest payment date is the close of business on April 20 or October 20, as the case may be, next preceding the relevant Interest Payment Date.
Section 2.7. Authorized Denominations. The Notes shall be issuable in denominations of $2,000 and in integral multiples of $1,000 in excess thereof.
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Section 2.8. Redemption. The Notes are subject to redemption at the option of the Company as set forth in the forms of Note attached hereto as Exhibit A.
Section 2.9. Limitation on Liens.
(a) The Company will not, nor will it permit any Subsidiary to, issue, assume or suffer to exist any Indebtedness or Guarantee, if such Indebtedness or Guarantee is secured by a Lien upon any Specified Property, unless, concurrently with the issuance or assumption of such Indebtedness or Guarantee or the creation of such Lien, the Notes (together with, at the Companys option, any other indebtedness of or guarantee by the Company or its Subsidiaries then existing or thereafter created which is not subordinated to the Notes) shall be secured equally and ratably with (or at the Companys option prior to) such Indebtedness or Guarantee for so long as such Indebtedness or Guarantee is so secured; provided, however, that the foregoing restriction shall not apply to:
(i) any Lien on (a) any Specified Property acquired, constructed, developed, extended or improved by the Company or any Subsidiary (singly or together with other Persons) after the date of the Indenture or any property reasonably incidental to the use or operation of such Specified Property (including any real property on which such Specified Property is located), or (b) any shares or other ownership interest in, or any Indebtedness of, any Person which holds, owns or is entitled to such property, products, revenue or profits, provided that in the case of both clause (a) and (b) above, such Lien is created, incurred or assumed (x) during the period such Specified Property was being constructed, developed, extended or improved, or (y) contemporaneously with, or within 360 days after, such acquisition or the completion of such construction, development, extension or improvement in order to secure or provide for the payment of all or any part of the purchase price or other consideration of such Specified Property or the other costs of such acquisition, construction, development, extension or improvement (including costs such as escalation, interest during construction and financing and refinancing costs);
(ii) any Lien on any Specified Property existing at the time of acquisition thereof and which (a) is not created as a result of or in connection with or in anticipation of such acquisition and (b) does not attach to any other Specified Property other than the Specified Property so acquired;
(iii) any Lien on any Specified Property acquired from a Person that is merged with or into the Company or any Subsidiary or any Lien existing on Specified Property of any Person at the time such Person becomes a Subsidiary, in either such case which (a) is not created as a result of or in connection with or in anticipation of any such transaction and (b) does not attach to any other Specified Property other than the Specified Property so acquired;
(iv) any Lien which secures Indebtedness or a Guarantee owing by a Subsidiary to the Company or any other Subsidiary;
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(v) any Liens on any Specified Property in favor of the government of the United States, Mexico or Peru or of any other country or any political subdivision thereof, to secure payments pursuant to any contract with such government or to any statute to which the Company or any of its Subsidiaries is subject;
(vi) any Lien existing on the date of this Fourth Supplemental Indenture; or
(vii) any extension, renewal or replacement (or successive extensions, renewals or replacements) in whole or in part, of any Lien referred to in the foregoing clauses (i) through (vi) inclusive; provided that the principal amount of Indebtedness or Guarantee secured thereby shall not exceed the principal amount of Indebtedness or Guarantee so secured at the time of such extension, renewal or replacement plus an amount necessary to pay any fees and expenses, including premiums and defeasanse costs related to such transaction, and that such extension, renewal or replacement shall be limited to all or a part of the property which secured the Lien so extended, renewed or replaced (plus improvements on such property).
(b) Notwithstanding the foregoing, the Company or any Subsidiary may issue or assume Indebtedness or a Guarantee secured by a Lien which would otherwise be prohibited under the provisions of the Indenture described in this section or enter into Sale and Leaseback Transactions that would otherwise be prohibited by the provisions of the Indenture described in Section 2.10, provided that the amount of such Indebtedness or Guarantee or the Attributable Value of such Sale and Leaseback Transaction, as the case may be, together with the aggregate amount (without duplication) of (i) Indebtedness or Guarantees outstanding at such time that were previously incurred pursuant to this paragraph by the Company and its Subsidiaries, plus (ii) the Attributable Value of all such Sale and Leaseback Transactions of the Company and its Subsidiaries outstanding at such time that were previously incurred pursuant to the provisions of the Indenture described in Section 2.10 shall not exceed 20% of Consolidated Net Tangible Assets at the time any such Indebtedness or Guarantee is issued or assumed by the Company or any Subsidiary or at the time any such Sale and Leaseback Transaction is entered into.
(c) For the avoidance of doubt, the sale or other transfer of (i) any minerals in place for a period of time until, or in an amount such that the purchaser will realize therefrom a specified amount of money (however determined) or a specified amount of such minerals or (ii) any other interest in property of the character commonly referred to as a production payment, shall not constitute the incurrence of Indebtedness or a Guarantee secured by a Lien.
Section 2.10. Limitation on Sale and Leaseback Transactions.
(a) Neither the Company nor any Subsidiary may enter into any Sale and Leaseback Transaction with respect to any Specified Property, unless either (i) the Company or such Subsidiary would be entitled pursuant to the provisions of the Indenture described above under Section 2.9 to issue or assume Indebtedness or a Guarantee (in an amount equal to the Attributable Value with respect to such Sale and Leaseback Transactions) secured by a Lien on such Specified Property without equally and ratably securing the Notes of such series; (ii) within 360 days of such Sale and Leaseback Transaction, the Company or such Subsidiary applies or
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causes to be applied, in the case of a sale or transfer for cash, an amount equal to 85% of the net proceeds thereof and, in the case of a sale or transfer otherwise than for cash, an amount equal to the fair market value (as determined in good faith by the board of directors of the Company) of the Specified Property so leased to: (A) to the retirement, within 360 days after the effective date of such Sale and Leaseback Transaction, of (x) Indebtedness of the Company ranking at least pari passu in right of payment with the Notes of such series or (y) Indebtedness of any Subsidiary of the Company, in each case owing to a Person other than the Company or any Affiliate of the Company, or (B) to the acquisition, purchase, construction, development, extension or improvement of any property or assets of the Company or any Subsidiary used or to be used by or for the benefit of the Company or any Subsidiary in the ordinary course of business; or (iii) the Company or such Subsidiary equally and ratably secures the Notes of such series as described in Section 2.9.
(b) The restrictions set forth in paragraph (a) above shall not apply to any transactions providing for a lease for a term of less than three years.
Section 2.11. Repurchase at Option of Holders Upon Change of Control Triggering Event.
(a) Upon the occurrence of a Change of Control Triggering Event, each Holder of Notes will have the right to require the Company to repurchase all or any part of such Holders Notes pursuant to the offer described below (the Change of Control Offer) at a purchase price (the Change of Control Purchase Price) equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to the purchase date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date).
(b) Within 30 days following any Change of Control Triggering Event, the Company shall send, by first-class mail, with a copy to the Trustee, to each Holder of Notes, at such Holders address appearing in the register, a notice stating:
(i) that a Change of Control Triggering Event has occurred and a Change of Control Offer is being made pursuant to this Section 2.11 and that all Notes validly tendered will be accepted for payment;
(ii) the Change of Control Purchase Price and the purchase date, which shall be, subject to any contrary requirements of applicable law, a Business Day no earlier than thirty (30) days nor later than sixty (60) days from the date such notice is mailed;
(iii) the circumstances and relevant facts regarding the Change of Control Triggering Event; and
(iv) the procedures that Holders of Notes must follow in order to validly tender their Notes (or portions thereof) for payment and the procedures that Holders of Notes must follow in order to withdraw an election to tender Notes (or portions thereof) for payment.
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(c) The Company will not be required to make a Change of Control Offer following a Change of Control Triggering Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Fourth Supplemental Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
(d) The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the covenant described above, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this covenant by virtue of such compliance.
(e) The Companys obligation to make an offer to repurchase the Notes as a result of a Change of Control Triggering Event may be waived or modified at any time prior to the occurrence of such Change of Control Triggering Event with the written consent of the holders of a majority in principal amount of the Notes, as set forth in Article IX of the Base Indenture.
Section 2.12. Merger, Consolidation and Sale of Assets.
(a) For so long as the Notes are outstanding, the Company may not consolidate with or merge into any other corporation or convey or transfer its properties and assets substantially as an entirety to any Person, unless (i) the successor Person shall be a corporation organized and existing under the laws of the United States (or any State thereof or the District of Columbia) and shall expressly assume, by a supplemental indenture, the due and punctual payment of the principal of and interest on all the outstanding Notes of such series and the performance of every covenant in this Fourth Supplemental Indenture on the part of the Company to be performed or observed, (ii) immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and (iii) the Company shall have delivered to the Trustee an Officers Certificate and Opinion of Counsel stating that all conditions precedent set forth in the indenture relating to the consummation of such consolidation, merger, conveyance or transfer and entering into of such supplemental indenture have been met. In case of any such consolidation, merger conveyance or transfer (other than a lease), such successor corporation will succeed to and be substituted for the Company as obligor on the Notes of the applicable series, with the same effect as if it had been named in this Fourth Supplemental Indenture as such obligor.
(b) For purposes of this Section 2.12, the conveyance or transfer of all the property of one or more Subsidiaries of the Company which property, if held by the Company instead of such Subsidiaries, would constitute all or substantially all the property of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all the property of the Company.
11
Section 2.13. Events of Default.
(a) The term Event of Default with respect to the Notes shall mean
(i) default in the payment of the principal of any note issued pursuant to this Fourth Supplemental Indenture after any such principal becomes due in accordance with the terms thereof, upon redemption or otherwise; or default in the payment of any interest in respect of such Notes if such default continues for 30 days after any such interest becomes due in accordance with the terms hereof;
(ii) failure to observe or perform any other covenant or agreement contained in the Notes issued pursuant to this Fourth Supplemental Indenture, and such failure continuing for 60 days after notice, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the outstanding Notes, specifying such failure and requiring it to be remedied and stating that such notice constitutes a notice of default under this Fourth Supplemental Indenture;
(iii) failure by the Company or any of its Significant Subsidiaries to pay when due (whether at maturity, upon redemption or acceleration or otherwise) the principal of any Indebtedness in excess, individually or in the aggregate of US$50 million (or the equivalent thereof in other currencies), if such failure shall continue for more than the period of grace, if any, applicable thereto and the period for payment has not been expressly extended;
(iv) a decree or order by a court having jurisdiction shall have been entered adjudging the Company or any of its Significant Subsidiaries as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, concurso mercantil or quiebra of or by the Company or any of its Significant Subsidiaries and such decree or order shall have continued undischarged or unstayed for a period of 120 days; or a decree or order of a court having jurisdiction for the appointment of a receiver or liquidator or sindico or conciliador for the liquidation or dissolution of the Company or any of its Significant Subsidiaries, shall have been entered, and such decree or order shall have continued undischarged and unstayed for a period of 120 days; provided, however, that any Significant Subsidiary may be liquidated or dissolved if, pursuant to such liquidation or dissolution, all or substantially all of its assets are transferred to the Company or another Significant Subsidiary of the Company; or
(v) the Company or any of its Significant Subsidiaries shall institute any proceeding to be adjudicated as voluntary bankrupt, or shall consent to the filing of a bankruptcy proceeding against it, or shall file a petition or answer or consent seeking reorganization, concurso mercantil or quiebra, or shall consent to the filing of any such petition, or shall consent to the appointment of a receiver or liquidator or sindico or conciliador or trustee or assignee in bankruptcy or insolvency of it or its property.
(b) If an Event of Default specified in clause (a)(iv) or (a)(v) above shall occur, the maturity of all outstanding Notes shall automatically be accelerated and the principal
12
amount of the Notes, together with accrued interest thereon, shall be immediately due and payable. If any other Event of Default shall occur and be continuing, the Trustee or the Holders of not less than 25% of the aggregate principal amount of the Notes then outstanding may, by written notice to the Company (and to the Trustee if given by Holders), declare the principal amount of the applicable Notes, together with accrued interest thereon, immediately due and payable. The right of the Holders to give such acceleration notice shall terminate if the event giving rise to such right shall have been cured before such right is exercised. Any such declaration may be annulled and rescinded by written notice from the Trustee or the Holders of a majority of the aggregate principal amount of the Notes then outstanding to the Company if all amounts then due with respect to the Notes are paid (other than amount due solely because of such declaration) and all other defaults with respect to the Notes are cured.
(c) Subject to the provisions of the Base Indenture and this Fourth Supplemental Indenture relating to the duties of the Trustee, in case the Company shall fail to comply with its obligations under this Fourth Supplemental Indenture or the Notes and such failure shall be continuing, the Trustee will be under no obligation to exercise any of its rights or powers under the Fourth Supplemental Indenture at the request or direction of any of the Holders, unless such Holders shall have offered to the Trustee indemnity reasonably satisfactory to it. The Holders of a majority in aggregate principal amount of the outstanding Notes will 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, to the extent such action does not conflict with the provisions of this Fourth Supplemental Indenture or applicable law.
(d) No Holder of any note will have any right to institute any proceeding with respect to the Fourth Supplemental Indenture or the Notes or for any remedy thereunder, unless such Holder has previously given to the Trustee written notice of a continuing Event of Default and unless also the Holders of at least 25% in aggregate principal amount of the outstanding Notes shall have made a written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee, such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to it, the Trustee for 60 days after receipt of such notice has failed to institute any such proceeding and no direction inconsistent with such request shall have been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the outstanding Notes. However, such limitations do not apply to a suit individually instituted by a Holder of a note for enforcement of payment of the principal of, or interest on, such note on or after respective due dates expressed in such note.
Section 2.14. Appointment of Agents. The Trustee will initially be the Security Registrar and Paying Agent for the Notes.
Section 2.15. Defeasance upon Deposit of Moneys or U.S. Government Obligations.
(a) On the first day after the applicable conditions set forth in Section 12.03 of the Base Indenture have been satisfied, the Company at any time may terminate (i) all of its obligations under the Notes and this Fourth Supplemental Indenture (legal defeasance option) or (ii) its obligations under Sections 2.9, 2.10, 2.11 and 2.12 of this Fourth Supplemental Indenture and, with respect to the Notes only, Section 10.2 of the Base Indenture, and the
13
operation of Sections 2.13(a)(iii), (iv) and (v) of this Fourth Supplemental Indenture (but, in the case of Sections 2.13(a)(iv) and (v), with respect only to Significant Subsidiaries) (covenant defeasance option). The Company may exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance option.
(b) If the Company exercises its legal defeasance option, payment of the Notes may not be accelerated because of an Event of Default with respect to the Notes. If the Company exercises its covenant defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified in Sections 2.13(a)(ii) (with respect to the covenants identified in clause (a) above), 2.13(a)(iii), 2.13(a)(iv) and 2.13(a)(v) (with respect only to Significant Subsidiaries in the case of Sections 2.13(a)(iv) and (v)).
(c) Notwithstanding clauses (a) and (b) above, the Companys obligations with respect to Sections 3.05, 3.06, 3.07, and 12.09 of the Base Indenture, in each case with respect to the Notes only, shall survive until the Notes have been paid in full.
Section 2.16. Amendments. In addition to the restrictions set forth in Section 14.02 of the Base Indenture, without the consent or affirmative vote of each Holder of Notes affected thereby, an amendment of this Fourth Supplemental Indenture or the Base Indenture (with respect to the Notes only) may not reduce the premium payable upon a Change of Control Triggering Event or, at any time after a Change of Control Triggering Event has occurred, change the time at which the Change of Control Offer relating thereto must be made or at which the Notes must be repurchased pursuant to such Change of Control Offer.
ARTICLE 3.
FORM OF NOTES
Section 3.1. Form of Notes. The Notes and the Trustees Certificate of Authentication to be endorsed thereon are to be substantially in the form set forth in Exhibit A.
ARTICLE 4.
ORIGINAL ISSUE OF NOTES
Section 4.1. Original Issue of Notes. The Notes may, upon execution of this Fourth Supplemental Indenture, be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall, upon Company order, authenticate and deliver such Notes as in such Company order provided.
ARTICLE 5.
MISCELLANEOUS
Section 5.1. Ratification of Indenture. The Base Indenture, as supplemented by this Fourth Supplemental Indenture, is in all respects ratified and confirmed, and this Fourth
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Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided; provided that the provisions of this Fourth Supplemental Indenture apply solely with respect to the Notes.
Section 5.2. Trustee Not Responsible for Recitals. The recitals herein contained are made by the Company and not by the Trustee, and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representation as to the validity or sufficiency of this Fourth Supplemental Indenture.
Section 5.3. Governing Law. This Fourth Supplemental Indenture and each Note shall be deemed to be contracts made under the law of the State of New York, and for all purposes shall be governed by and construed in accordance with such law.
Section 5.4. Severability. In case any provision in this Indenture or in the Notes 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 5.5. Counterparts. This Fourth Supplemental Indenture may be executed in any number of counterparts each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental Indenture to be duly executed, all as of the day and year first above written.
SOUTHERN COPPER CORPORATION, | ||
as Issuer | ||
By: | /s/ Hans Flury | |
Name: | Hans A. Flury | |
Title: | Corporate Assistant Secretary: |
Signature Page
Fourth Supplemental Indenture
WELLS FARGO BANK, NATIONAL ASSOCIATION, | ||
as Trustee | ||
By: | /s/ Michael Tu | |
Name: | Michael Tu | |
Title: | Assistant Vice President |
Signature Page
Fourth Supplemental Indenture
EXHIBIT A
[FORM OF FACE OF SECURITY]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (DTC) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
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No. 1 | $ As revised by the Schedule of Increases or Decreases in Global Security attached hereto |
5.250% Notes due 2042
CUSIP No. 84265V AG0
SOUTHERN COPPER CORPORATION, a Delaware corporation (herein called the Company, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of ($), as revised by the Schedule of Increases or Decreases in Global Security attached hereto, on November 8, 2042 and to pay interest thereon from November 8, 2012 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on May 8 and November 8 of each year, commencing on May 8, 2013 at the rate of 5.250% per annum, until the principal hereof is paid or made available for payment. Interest on the Securities will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from November 8, 2012. Interest shall be computed on the basis of a 360-day year of twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Record Date for such interest, which shall be April 20 or October 20, as the case may be, next preceding such Interest Payment Date.
Additional provisions of this Security are set forth on the other side of this Security.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the parties have caused this instrument to be duly executed.
SOUTHERN COPPER CORPORATION | ||
By: |
| |
Name: | ||
Title: | ||
By: |
| |
Name: | ||
Title: |
TRUSTEES CERTIFICATE OF |
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Date of Authentication: | ||
| ||
WELLS FARGO BANK, NATIONAL ASSOCIATION, | ||
as Trustee, certifies that this is one of the Securities referred to in the Indenture. | ||
by: | Authorized Signatory | |
|
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[FORM OF REVERSE SIDE OF SECURITY]
5.250% Notes due 2042
1. | Indenture. |
This Security is one of a duly authorized issue of securities of the Company (herein called the Securities), issued and to be issued in one or more series under an Indenture, dated as of April 16, 2010, as supplemented by a Fourth Supplemental Indenture, dated November 8, 2012 (as so supplemented, herein called the Indenture), between the Company and Wells Fargo Bank, National Association, as Trustee (herein called the Trustee, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof, initially limited in aggregate principal amount to $1,200,000,000.
The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the date of the Indenture (the TIA). Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The Securities are subject to all such terms, and Securityholders are referred to the Indenture and the TIA for a statement of those terms.
2. | Method of Payment. |
The Company will pay interest on the Securities (except defaulted interest) to the Persons who are registered holders of Securities at the close of business on the April 20 or October 20, as the case may be, next preceding the interest payment date even if Securities are canceled after the record date and on or before the interest payment date. Holders must surrender Securities to a Paying Agent to collect principal payments. The Company will pay principal and interest in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. Payments in respect of the Securities represented by a Global Security (including principal, premium and interest) will be made by wire transfer of immediately available funds to the accounts specified by The Depository Trust Company. Payments on the Securities will be made at the office or agency of the Paying Agent and Registrar within the city of Minneapolis, Minnesota unless the Company elects to make interest payments by check mailed to the Holders at their address set forth in the register.
3. | Paying Agent and Registrar. |
Initially, the Trustee will act as Paying Agent and Registrar. The Company may appoint and change any Paying Agent, Registrar or co-registrar without notice. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
4. | Optional Redemption. |
(a) Except as described below, the Notes are not redeemable at the Companys option. The Company is not, however, prohibited from acquiring the Notes by means other than a redemption, whether pursuant to a tender offer, open market purchase or otherwise, so long as the acquisition does not otherwise violate the terms of the Indenture.
(b) The Notes will be redeemable, at any time and from time to time, in whole or in part, at the Companys option at a redemption price equal to the greater of (i) 100% of the principal amount of the Notes to be redeemed plus accrued and unpaid interest thereon to, but not including, the date of redemption, and (ii) the sum of the present values of the Remaining Scheduled Payments of principal and interest on the Notes to be redeemed (exclusive of interest accrued to the applicable redemption date) discounted to that redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 37.5 basis points. Notwithstanding the foregoing, payments of interest on the Notes will be payable to the Holders of those Notes registered as such at the close of business on the relevant record dates according to the terms and provisions of the Indenture. In connection with such optional redemption, the following defined terms apply:
(c) Upon presentation in physical, certificated form of any Note to be redeemed in part only, the Company will execute and the Trustee will authenticate and deliver to the Company on the order of the holder thereof, at the Companys expense, a new Note or Notes, of authorized denominations, in principal amount equal to the unredeemed portion of the Note so presented. The Company may at any time purchase Notes in the open market or otherwise at any price. Any Notes that are redeemed or purchased by the Company shall be delivered to the Trustee for cancellation and may not be reissued or resold. Any redemption and notice thereof pursuant to the Indenture may, at the Companys discretion, be subject to the satisfaction of one or more conditions precedent.
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5. | Notice of Redemption. |
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each Holder of the Notes to be redeemed. On and after any redemption date, interest will cease to accrue on the Notes or any portion thereof called for redemption unless the Company defaults in the payment of the redemption price.
6. | Sinking Fund and Highly Leveraged Transactions. |
The Securities are not subject to any sinking fund. The Indenture does not include any debt covenants or other provisions which afford holders of the Securities protection in the event of a highly leveraged transaction.
7. | Repurchase of Securities at the Option of Holders upon Change of Control Triggering Event. |
Upon a Change of Control Triggering Event, Holders of securities will have the right, subject to certain conditions specified in the Indenture, to cause the Company to repurchase all or any part of the Securities of such Holder at a purchase price equal to 101% of the principal amount of the Securities to be repurchased plus accrued and unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date that is on or prior to the date of purchase) as provided in, and subject to the terms of, the Indenture.
8. | Denominations; Transfer; Exchange. |
The Securities of this series are issuable only in registered form without coupons in denominations of $2,000 and in integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable in the security register, upon surrender of this Security for registration of transfer at the Registrar accompanied by a written request for transfer in form satisfactory to the Company and the Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
9. | Persons Deemed Owners. |
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
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10. | Amendment, Waiver. |
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
11. | Defaults and Remedies. |
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
12. | Governing Law. |
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
13. | CUSIP Numbers. |
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Securities and has directed the Trustee to use CUSIP numbers in notices of redemption as a convenience to Securityholders. No representation is made as to the accuracy of such numbers either as printed on the Securities or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder of Securities upon written request and without charge to the Holder a copy of the Indenture which has in it the text of this Security.
A-6
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
Date of Exchange |
Amount of increase in Principal Amount of this Global Security |
Amount of decrease in Principal Amount of this Global Security |
Principal Amount of this Global Security following each decrease or increase |
Signature of authorized signatory of Trustee | ||||
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EXHIBIT 5
Chadbourne and Parke LLP
30 Rockefeller Plaza
New York, NY 10112
November 9, 2012
Southern Copper Corporation
1440 East Missouri Avenue, Suite 160
Phoenix, Arizona 85014
Ladies and Gentlemen:
We have acted as counsel to Southern Copper Corporation, a Delaware corporation (the Company), in connection with the issuance and sale of the Companys $300 million aggregate principal amount of 3.500% Notes Due 2022 (the 2022 Notes) and $1,200 million aggregate principal amount of 5.250% Notes Due 2042 (the 2042 Notes and together with the 2022 Notes, the Notes) in an underwritten public offering pursuant to an Underwriting Agreement dated as of November 5, 2012 among the Company and the underwriters named therein (the Underwriting Agreement) and the Companys Registration Statement on Form S-3ASR (Registration Statement No. 333-165904) (the Registration Statement) filed with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended (the Securities Act).
The Notes are to be issued under an indenture, dated as of April 16, 2010, as supplemented by the Third Supplemental Indenture and the Fourth Supplemental Indenture, each dated as of November 8, 2012, between the Company and Wells Fargo Bank, National Association, as trustee (the Indenture).
In connection with our opinion, we have examined the Registration Statement, including the exhibits thereto, and such other documents, corporate records and instruments, and have examined such laws and regulations, as we have deemed necessary for purposes of this opinion. In making our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity with the originals of all documents submitted to us as copies and the legal capacity of all natural persons. As to matters of fact material to our opinion in this letter, we have relied on certificates and statements from officers and other employees of the Company, public officials and other appropriate persons.
In rendering the opinion in this letter we have assumed, without independent investigation or verification, that each party to each of the documents executed or to be executed, other than the Company, (a) is validly existing and in good standing under the laws of its jurisdiction of organization, (b) has full power and authority to execute such documents
Southern Copper Corporation | -2- | November 9, 2012 |
to which it is a party and to perform its obligations thereunder, (c) has taken all necessary action to authorize execution of such documents on its behalf by the persons executing same, (d) has properly executed and delivered, or will properly execute and deliver, each of such documents to which it is a party, and (e) has duly obtained all consents or approvals of any nature from and made all filings with any governmental authorities necessary for such party to execute, deliver or perform its obligations under such documents to which it is a party. In addition, in rendering the opinion we have assumed, without independent investigation or verification, (i) that the execution and delivery of, and performance of their respective obligations under, the documents executed or to be executed by each party thereto, other than the Company, do not violate any law, rule, regulation, agreement or instrument binding upon such party and (ii) that each of such documents is the legal, valid and binding obligation of, and enforceable against, each party thereto, other than the Company.
We make no representation that we have independently investigated or verified any of the matters that we have assumed for the purposes of this opinion letter.
Based on the foregoing and subject to the qualifications set forth herein, we are of the opinion that, when any applicable state securities laws or Blue Sky laws have been complied with, the Notes, when issued, authenticated and delivered in accordance with the provisions of the Underwriting Agreement and the Indenture, against payment of the agreed-upon consideration therefor, will be validly issued and will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors rights in general and general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
We do not express any opinion herein with respect to the laws of any jurisdiction other than the federal laws of the United States of America, the laws of the State of New York and the General Corporation Law of the State of Delaware.
The opinion is as of the date of this opinion letter only and as to laws covered hereby only as they are in effect on that date, and we assume no obligation to update or supplement such opinion to reflect any facts or circumstances that may come to our attention after that date or any changes in law that may occur or become effective after that date. The opinion is limited to the matters expressly set forth in this opinion letter, and no opinion or representation is given or may be inferred beyond the opinion expressly set forth in this opinion letter.
We hereby consent to the filing of this opinion as Exhibit 5 to the Companys Current Report on Form 8-K filed on November 9, 2012 and to the reference to us under the caption Legal Matters in the prospectus supplement dated November 5, 2012 with respect to the
Southern Copper Corporation | -3- | November 9, 2012 |
Notes. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules promulgated thereunder.
Very truly yours, |
/s/ Chadbourne & Parke LLP |
EXHIBIT 99
Investor Relations (602) 264-1375
SOUTHERN COPPER CORPORATION ISSUED $1.5 BILLION UNSECURED NOTES
November 9, 2012 Southern Copper Corporation (NYSE and BVL: SCCO) announced today that it has completed a public offering of US$1.5 billion aggregate principal amount of notes, consisting of US$300 million 3.500% Notes due 2022 and US$1,200 million 5.250% Notes due 2042. These notes are general unsecured obligations of Southern Copper Corporation and rank equally with all of its existing and future unsecured and unsubordinated debt.
The proceeds of this offering will be used for general corporate purposes, including the financing of our capital expenditure program.
Southern Copper Corporation is one of the largest integrated copper producers in the world. Southern Copper believes it has the largest copper reserves of any publicly listed company. Southern Copper is a NYSE and Lima Stock Exchange listed company that is 81.3% owned by Grupo Mexico, a Mexican company listed on the Mexican Stock Exchange. The remaining 18.7% ownership interest is held by the international investment community. Southern Copper operates mining units and metallurgical facilities in Mexico, and Peru and conduct exploration activities in Argentina, Chile, Ecuador, Mexico and Peru.
This press release shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of the jurisdiction.