Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration of Securities Issued in a 197 1.00M
Business-Combination Transaction
2: EX-3.1 Cert. of Inc. / Doe Run Resources 36 79K
3: EX-3.2 Amended & Restated Bylaws/ Doe Run 9 39K
4: EX-3.3 Cert. of Inc./Fabricated Products 2 16K
5: EX-3.4 Bylaws of Fabricated Products 9 36K
6: EX-3.5 Cert. of Inc./Doe Run Cayman 1 13K
7: EX-3.6 Memorandum of Association 36 107K
8: EX-3.7 Constitution of Doe Run 18 69K
9: EX-3.8 Constitution/Doe Run Peru 16 67K
10: EX-4.1 Indenture 204 538K
11: EX-4.2 Purchase Agreement 54 155K
12: EX-4.3 Registration Rights Agreement 42 125K
13: EX-4.4 Letter of Transmittal 12 62K
14: EX-5.1 Cadwalader Opinion 3 21K
15: EX-10.1-1 Employment Agreement/Zelms 11 34K
16: EX-10.1-2 Employment Agreement/Kaiser 11 34K
17: EX-10.1-3 Employment Agreement/Amastadi 11 33K
18: EX-10.1-4 Employment Agreement/Boyer 11 33K
19: EX-10.1-5 Employment Agreement/Buckley 11 34K
20: EX-10.2-1 Net Worth Apprec. Agmt/Zelms 8 25K
21: EX-10.2-2 Net Worth Apprec. Agmt/Kaiser 8 26K
22: EX-10.2-3 Net Worth Apprec. Agmt./Amistadi 8 26K
23: EX-10.2-4 Net Woth Apprec. Agmt./Boyer 8 26K
24: EX-10.2-5 Net Worth Apprec. Agmt./Buckley 8 26K
25: EX-10.3 Supplemental Employee Retirement Plan 7 26K
26: EX-10.4 Executive Tax Services Plan 2 15K
27: EX-10.5 Loan & Security Agreement 142 467K
28: EX-10.6 Contrato De Transferencia De Acciones 109 206K
29: EX-10.7 Programa De Adecuacion Y Manejo Ambiental 478 1.63M
30: EX-10.8-1 Covenio De Establilidad Jurica Entre El Estado 10 42K
31: EX-10.8-2 Covenio De Estabilidad Jurica Con Doe Run 10 41K
32: EX-10.8-3 Covenio De Estabilidad Jurica Entre El Estado 9 40K
33: EX-10.8-4 Covenio De Estabilidad Jurica Con Doe Run Peru 10 43K
34: EX-10.8-5 Covenio De Estabilidad Con Doe Run Peru 10 44K
35: EX-10.8-6 Covenio De Estabilidad Jurica Con Doe Run Cayman 12 48K
36: EX-10.8-7 Remite Contrato De Estabilidad Administrativa Amb 20 88K
37: EX-12 Computation of Ratios 1 14K
38: EX-21 List of Subsidiaries 1 12K
39: EX-23.2 Consent of Kpmg 1 13K
40: EX-23.3 Consent of Medina, Zaldivar 1 14K
41: EX-23.4 Consent Pincock, Allen & Holt 1 14K
42: EX-25 Form T-1 7 31K
EX-4.2 — Purchase Agreement
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Exhibit 4.2
$255,000,000
The Doe Run Resources Corporation
$200,000,000 11 1/4% Senior Notes due 2005
$55,000,000 Floating Interest Rate Senior Notes due 2003
PURCHASE AGREEMENT
March 6, 1998
BT ALEX. BROWN INCORPORATED
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
UBS SECURITIES LLC
c/o BT ALEX. BROWN INCORPORATED
Bankers Trust Plaza
130 Liberty Street
New York, New York 10006
Ladies and Gentlemen:
The Doe Run Resources Corporation, a New York corporation (the
"Company"), hereby confirms its agreement with BT Alex. Brown Incorporated
("BTAB"), Donaldson, Lufkin & Jenrette Securities Corporation and UBS Securities
LLC (the "Initial Purchasers"), as set forth below.
1. The Securities. Subject to the terms and conditions herein
contained, the Company proposes to issue and sell to the Initial Purchasers
$200,000,000 aggregate principal amount of its 11 1/4% Senior Notes due 2005,
Series A (the "Fixed Rate Notes") and $55,000,000 aggregate principal of its
Floating Interest Rate Senior Notes due 2003 (the "Floating Rate Notes" and
together with the Fixed Rate Notes, the "Notes"). The Notes will be guaranteed
(collectively, the "Guarantees" and, together with the Notes, the "Securities")
by Fabricated Products, Inc., a Delaware corporation ("Fabricated Products"),
Doe Run Cayman Ltd., a Cayman Islands company ("Doe Run Cayman"), Doe Run Mining
S.R. Ltda., a Peruvian company ("Doe Run Mining") and Doe Run Peru S.R. Ltda., a
Peruvian company ("Doe Run Peru") (collectively, the "Guarantors" and, together
with the Company, the "Issuers"). The Notes are to be issued under an indenture
(the "Indenture") to be dated as of
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March 12, 1998 by and among the Company, the Guarantors, and State Street Bank
and Trust Company as Trustee (the "Trustee").
The Notes will be offered and sold to the Initial Purchasers without
being registered under the Securities Act of 1933, as amended (the "Act"), in
reliance on exemptions therefrom.
In connection with the sale of the Notes, the Issuers have prepared
a preliminary offering memorandum dated February 13, 1998 (the "Preliminary
Memorandum"), and a final offering memorandum dated March 6, 1998 (the "Final
Memorandum"; the Preliminary Memorandum and the Final Memorandum each herein
being referred to as a "Memorandum") setting forth or including a description of
the terms of the Securities, the terms of the offering of the Securities, a
description of the Company and the Guarantors and any material developments
relating to the Company and the Guarantors occurring after the date of the most
recent historical financial statements included therein.
The Initial Purchasers and their direct and indirect transferees of
the Notes will be entitled to the benefits of the Registration Rights Agreement
to be dated as of the Closing Date, (the "Registration Rights Agreement"),
pursuant to which the Issuers have agreed, among other things, to file a
registration statement (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission") registering the Notes or the Exchange
Notes (as defined in the Registration Rights Agreement) under the Act.
2. Representations and Warranties. Each of the Issuers represent and
warrant to and agree with each of the Initial Purchasers that:
(a) Neither the Preliminary Memorandum as of the date thereof nor
the Final Memorandum nor any amendment or supplement thereto as of the date
thereof and at all times subsequent thereto up to the Closing Date (as defined
in Section 3 below) contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this Section 2(a) do not apply to statements or omissions made in reliance
upon and in conformity with information relating to any of the Initial
Purchasers furnished to the Company in writing by the Initial Purchasers
expressly for use in the Preliminary Memoran-
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dum, the Final Memorandum or any amendment or supplement thereto.
(b) As of the Closing Date, the Company will have the authorized,
issued and outstanding capitalization set forth in the Final Memorandum; all of
the subsidiaries of the Company are listed in Schedule 2 attached hereto (each,
a "Subsidiary" and collectively, the "Subsidiaries"); all of the outstanding
shares of capital stock or equity interests, as the case may be, of the Company
and the Subsidiaries have been, and as of the Closing Date will be, duly
authorized and validly issued, are fully paid and nonassessable and were not
issued in violation of any preemptive or similar rights; all of the outstanding
shares of capital stock or equity interests, as the case may be, of the Company
and of each of the Subsidiaries will be free and clear of all liens,
encumbrances, equities and claims or restrictions on transferability (other than
those imposed by the Act and the securities or "Blue Sky" laws of certain
jurisdictions) or voting; except as set forth in the Final Memorandum, there are
no (i) options, warrants or other rights to purchase, (ii) agreements or other
obligations to issue or (iii) other rights to convert any obligation into, or
exchange any securities for, shares of capital stock of or ownership interests
in the Company or any of the Subsidiaries outstanding. Except for the
Subsidiaries or as disclosed in the Final Memorandum, the Company and the
Subsidiaries do not own, directly or indirectly, any shares of capital stock or
any other equity or long-term debt securities or have any equity interest in any
firm, partnership, joint venture or other entity.
(c) Each of the Company and the Subsidiaries is duly organized,
validly existing and in good standing under the laws of its respective
jurisdiction of organization and has all requisite power and authority to own
its properties and conduct its business as now conducted and as described in the
Final Memorandum; each of the Company and the Subsidiaries is duly qualified to
do business as a foreign entity in good standing in all other jurisdictions
where the ownership or leasing of its properties 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
general affairs, management, business, condition (financial or otherwise),
prospects or results of operations of the Company and the Subsidiaries, taken as
a whole (any such event, a "Material Adverse Effect").
(d) The Company has all requisite corporate power and authority to
execute, deliver and perform each of its obli-
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gations under the Notes, the Exchange Notes and the Private Exchange Notes (as
defined in the Registration Rights Agreement). The Notes, when issued, will be
in the form contemplated by the Indenture. The Notes, the Exchange Notes and the
Private Exchange Notes have each been duly and validly authorized by the Company
and, when executed by the Company and authenticated by the Trustee in accordance
with the provisions of the Indenture and, in the case of the Notes, when
delivered to and paid for by the Initial Purchasers in accordance with the terms
of this Agreement, will constitute valid and legally binding obligations of the
Company, entitled to the benefits of the Indenture, and enforceable against the
Company in accordance with their terms, except that the enforcement thereof may
be subject to (i) bankruptcy, insolvency, restructuring, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be brought and
(iii) any limitation on a waiver of rights under any usury laws.
(e) Each of the Issuers has all requisite corporate power and
authority to execute, deliver and perform its obligations under the Indenture.
The Indenture meets the requirements for qualification under the Trust Indenture
Act of 1939, as amended (the "TIA"). The Indenture has been duly and validly
authorized by each of the Issuers and, when executed and delivered by each of
the Issuers (assuming the due authorization, execution and delivery by the
Trustee), will constitute a valid and legally binding agreement of each of the
Issuers, enforceable against each of the Issuers in accordance with its terms,
except that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, restructuring, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally, (ii) general
principles of equity and the discretion of the court before which any proceeding
therefor may be brought and (iii) any limitation on a waiver of rights under any
usury laws.
(f) Each of the Issuers has all requisite corporate power and
authority to execute, deliver and perform its obligations under the Registration
Rights Agreement. The Registration Rights Agreement has been duly and validly
authorized by each of the Issuers and, when executed and delivered by each of
the Issuers, will constitute a valid and legally binding agreement of each of
the Issuers enforceable against each of the Issuers in accordance with its
terms, except that (A) the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereaf-
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ter in effect relating to creditors' rights generally, and (ii) general
principles of equity and the discretion of the court before which any proceeding
therefor may be brought and (B) any rights to indemnity or contribution
thereunder may be limited by federal, state or foreign securities laws and
public policy considerations.
(g) Each of the Guarantors has all requisite corporate power and
authority to execute, deliver and perform its obligations under the Guarantees.
The Guarantees have been duly and validly authorized for issuance to the Initial
Purchasers by the Guarantors and, when the Notes are duly and validly
authorized, executed, issued and authenticated in accordance with the terms of
the Indenture and delivered against payment therefor in accordance with the
terms hereof, will be the legally valid and binding obligations of each of the
Guarantors, enforceable against each of the Guarantors in accordance with their
terms and entitled to the benefits of the Indenture, except that the enforcement
thereof may be subject to (i) bankruptcy, insolvency, restructuring,
reorganization, moratorium or other similar laws now or hereinafter in effect
relating to creditors' rights generally, (ii) general principles of equity
regardless of the discretion of the court before which any proceeding therefor
may be brought and (iii) any limitation on a waiver of rights under any usury
laws.
(h) Each of the Issuers has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement.
This Agreement has been duly and validly authorized by each of the Issuers, and
when executed and delivered by each of the Issuers, will constitute a valid and
legally binding agreement of each of the Issuers enforceable against each of the
Issuers in accordance with its terms, except that (A) the enforcement thereof
may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereinafter in effect relating to creditors' rights
generally, and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought and (B) any rights to
indemnity or contribution thereunder may be limited by federal, state or foreign
securities laws and public policy considerations.
(i) Each of the Company and Doe Run Mining has all requisite
corporate power and authority to execute, deliver and perform its obligations
under the Contract for a Loan in Foreign Currency to be dated as of March 12,
1998 entered into by and between Banco de Credito Overseas Limited, a
corporation established and existing pursuant to the laws of the Common-
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wealth of the Bahamas (the "Bank"), and Doe Run Mining (the "Peruvian Loan
Agreement") and the Special Term Deposit Contract to be dated as of March 12,
1998 entered into by and between the Bank and the Company (the "Deposit
Agreement" and, together with the Peruvian Loan Agreement, the "Loan
Agreement"). The Loan Agreement has been duly and validly authorized by each of
the Company and Doe Run Mining and, when executed and delivered by each of the
Company and Doe Run Mining, will constitute a valid and legally binding
agreement of each of the Company and Doe Run Mining enforceable against each of
the Company and Doe Run Mining in accordance with its terms, except that the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, (ii) general principles of equity and
the discretion of the court before which any proceeding therefor may be brought
and (iii) any limitation on a waiver of rights under any usury laws.
(j) No consent, approval, license, validation of, filing, recording
or registration with, or exemption by, authorization or order of any court or of
any foreign or domestic governmental agency or body, or third party is required
for the issuance and sale by the Issuers of the Securities to the Initial
Purchasers or the consummation by each of the Issuers of the other transactions
contemplated hereby, except such as have been obtained and such as may be
required under state securities or "Blue Sky" laws in connection with the
purchase and resale of the Notes by the Initial Purchasers. None of the Company
or the Subsidiaries is (i) in violation of any provision of the charter,
"Estatuto" or bylaws (or similar organizational documents), (ii) in breach or
violation of any statute, judgment, decree, order, rule or regulation applicable
to any of them or any of their respective properties or assets, except for any
such breach or violation which would not, individually or in the aggregate, have
a Material Adverse Effect, or (iii) in breach of or default under (nor has any
event occurred which, with notice or passage of time or both, would constitute a
default under) or in violation of any of the terms or provisions of any
indenture, mortgage, deed of trust, loan agreement, note, lease, license,
franchise agreement, permit, certificate, contract or other agreement or
instrument to which any of them is a party or to which any of them or their
respective properties or assets is subject (collectively, "Contracts"), except
for any such breach, default, violation or event which would not, individually
or in the aggregate, have a Material Adverse Effect.
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(k) The execution, delivery and performance by each of the Issuers
of this Agreement, the Loan Agreement, the Indenture, the Registration Rights
Agreement and the Guarantees and the consummation by each of the Issuers of the
transactions contemplated hereby and thereby (including, without limitation, the
issuance and sale of the Securities to the Initial Purchasers) will not conflict
with or constitute or result in a breach of or a default under (or an event
which with notice or passage of time or both would constitute a default under)
or violation of any of (i) the terms or provisions of any Contract, except for
any such conflict, breach, violation, default or event which would not,
individually or in the aggregate, have a Material Adverse Effect, (ii) the
provisions of the charter, "Estatuto" or bylaws (or similar organizational
documents) of the Company or any of the Subsidiaries, or (iii) (assuming
compliance with all applicable state securities or "Blue Sky" laws and assuming
the accuracy of the representations and warranties of the Initial Purchasers in
Section 8 hereof) any statute, judgment, decree, order, rule or regulation
applicable to the Company or any of the Subsidiaries or any of their respective
properties or assets, except for any such conflict, breach or violation which
would not, individually or in the aggregate, have a Material Adverse Effect.
(l) The audited consolidated financial statements of the Company and
the Subsidiaries included in the Final Memorandum present fairly in all material
respects the financial position, results of operations and cash flows of the
Company and the Subsidiaries at the dates and for the periods to which they
relate and have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis, except as otherwise stated therein.
The summary and selected financial and statistical data in the Final Memorandum
present fairly in all material respects the information shown therein and have
been prepared and compiled on a basis consistent with the audited financial
statements included therein, except as otherwise stated therein. KPMG Peat
Marwick LLP and Medina, Zaldivar y Asociados S. Civ. R.L., a member firm of
Andersen Worldwide SC, (the "Independent Accountants") are independent public
accounting firms within the meaning of the Act and the rules and regulations
promulgated thereunder.
(m) The pro forma financial statements (including the notes thereto)
and the other pro forma financial information included in the Final Memorandum
(i) comply as to form in all material respects with the applicable requirements
of Regulation S-X promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), (ii) have been prepared
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in accordance with the Commission's rules and guidelines with respect to pro
forma financial statements, and (iii) have been properly computed on the bases
described therein; the assumptions used in the preparation of the pro forma
financial data and other pro forma financial information included in the Final
Memorandum are reasonable and the adjustments used therein are appropriate to
give effect to the transactions or circumstances referred to therein.
(n) Except as described in the Final Memorandum, there is not
pending or, to the knowledge of the Issuers, threatened any action, suit,
proceeding, inquiry or investigation to which the Company or any of the
Subsidiaries is a party, or to which the property or assets of the Company or
any of the Subsidiaries are subject, before or brought by any court, arbitrator
or governmental agency or body which, if determined adversely to the Company or
any of the Subsidiaries, would, individually or in the aggregate, have a
Material Adverse Effect or which seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge the issuance or sale of the Notes to be
sold hereunder or the consummation of the other transactions described in the
Final Memorandum.
(o) Each of the Company and the Subsidiaries possesses all licenses,
permits, certificates, consents, orders, approvals and other authorizations
from, and has made all declarations and filings with, all federal, state, local
and other foreign and domestic governmental authorities, all self-regulatory
organizations and all courts and other tribunals, presently required or
necessary to own or lease, as the case may be, and to operate its respective
properties and to carry on its respective businesses as now or proposed to be
conducted as set forth in the Final Memorandum ("Permits"), except where the
failure to obtain such Permits would not, individually or in the aggregate, have
a Material Adverse Effect; each of the Company and the Subsidiaries has
fulfilled and performed all of its obligations with respect to such Permits, and
no event has occurred which allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such Permit; and none of the
Company or the Subsidiaries has received any notice of any proceeding relating
to revocation or modification of any such Permit, except as described in the
Final Memorandum or except where such revocation or modification would not,
individually or in the aggregate, have a Material Adverse Effect.
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(p) Since the date of the most recent financial statements appearing
in the Final Memorandum, except as described therein, (i) none of the Company or
the Subsidiaries has incurred any liabilities or obligations, direct or
contingent, or entered into or agreed to enter into any transactions or
contracts (written or oral) not in the ordinary course of business which
liabilities, obligations, transactions or contracts would, individually or in
the aggregate, be material to the general affairs, management, business,
condition (financial or otherwise), prospects or results of operations of the
Company and its Subsidiaries, taken as a whole, (ii) none of the Company or the
Subsidiaries has purchased any of its outstanding equity interests, nor
declared, paid or otherwise made any dividend or distribution of any kind on its
equity interests (other than with respect to any of such Subsidiaries, the
purchase of, or dividend or distribution on, equity interests owned by the
Company) and (iii) there shall not have been any material change in the equity
interests or long-term indebtedness of the Company or the Subsidiaries.
(q) Each of the Company and the Subsidiaries has filed all necessary
federal, state and foreign income and franchise tax returns, except where the
failure to so file such returns would not, individually or in the aggregate,
have a Material Adverse Effect, and has paid all taxes shown as due thereon; and
other than tax deficiencies which the Company or any Subsidiary is contesting in
good faith and for which the Company or such Subsidiary has provided adequate
reserves, there is no tax deficiency that has been asserted against the Company
or any of the Subsidiaries that would have, individually or in the aggregate, a
Material Adverse Effect.
(r) The statistical and market-related data included in the Final
Memorandum are based on or derived from sources which the Issuers believe to be
reliable and accurate.
(s) None of the Issuers or any agent acting on their behalf has
taken or will take any action that might cause this Agreement or the sale of the
Notes to violate Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System, in each case as in effect, or as the same may hereafter
be in effect, on the Closing Date.
(t) Each of the Company and the Subsidiaries has good and marketable
title to all real property and good title to all personal property described in
the Final Memorandum as being owned by it and good and marketable title to a
leasehold estate in the real and personal property described in the Final
Memorandum as being leased by it free and clear of all liens, charges,
encumbrances or restrictions, except as described in the Final
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Memorandum or to the extent the failure to have such title or the existence of
such liens, charges, encumbrances or restrictions would not, individually or in
the aggregate, have a Material Adverse Effect. All leases, contracts and
agreements to which the Company or any of the Subsidiaries is a party or by
which any of them is bound are valid and enforceable against the Company or such
Subsidiary, and are valid and enforceable against the other party or parties
thereto and are in full force and effect with only such exceptions as would not,
individually or in the aggregate, have a Material Adverse Effect. The Company
and the Subsidiaries own or possess adequate licenses or other rights to use all
patents, trademarks, service marks, trade names, copyrights and know-how
necessary to conduct the businesses now or proposed to be operated by them as
described in the Final Memorandum, and none of the Company or the Subsidiaries
has received any notice of infringement of or conflict with (or knows of any
such infringement of or conflict with) asserted rights of others with respect to
any patents, trademarks, service marks, trade names, copyrights or know-how
which, if such assertion of infringement or conflict were sustained, would have
a Material Adverse Effect.
(u) There are no legal or foreign or domestic governmental
proceedings involving or affecting the Company or any Subsidiary or any of their
respective properties or assets which would be required to be described in a
prospectus pursuant to the Act that are not described in the Final Memorandum,
nor are there any material contracts or other documents which would be required
to be described in a prospectus pursuant to the Act that are not described in
the Final Memorandum.
(v) Except as would not, individually or in the aggregate, have a
Material Adverse Effect, or as described in the Final Memorandum (A) each of the
Company and the Subsidiaries is in compliance with and not subject to liability
under applicable Environmental Laws (as defined below), (B) each of the Company
and the Subsidiaries has made all filings and provided all notices required
under any applicable Environmental Law, and has and is in compliance with all
Permits required under any applicable Environmental Laws, and each of them is in
full force and effect, (C) there is no civil, criminal or administrative action,
suit, demand, claim, hearing, notice of violation, investigation, proceeding,
notice or demand letter or request for information pending or, to the knowledge
of the Issuers, threatened against the Company or any of the Subsidiaries under
any Environmental Law, (D) no lien, charge, encumbrance
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or restriction has been recorded under any Environmental Law with respect to any
assets, facility or property owned, operated, leased or controlled by the
Company or any of the Subsidiaries, (E) none of the Company or the Subsidiaries
has received notice that it has been identified as a potentially responsible
party under the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended ("CERCLA") or any comparable state law, (F) no property
or facility of the Company or any of the Subsidiaries is (i) listed or proposed
for listing on the National Priorities List under CERCLA or is (ii) listed in
the Comprehensive Environmental Response, Compensation, Liability Information
System List promulgated pursuant to CERCLA, or on any comparable list maintained
by any state or local governmental authority.
For purposes of this Agreement, "Environmental Laws" means the
common law and all applicable foreign, federal, state and local laws or
regulations, codes, orders, decrees, judgments or injunctions issued,
promulgated, approved or entered thereunder, relating to pollution or protection
of public or employee health and safety or the environment, including, without
limitation, laws relating to (i) emissions, discharges, releases or threatened
releases of hazardous materials into the environment (including, without
limitation, ambient air, surface water, ground water, land surface or subsurface
strata), (ii) the manufacture, processing, distribution, use, generation,
treatment, storage, disposal, transport or handling of hazardous materials,
(iii) underground and above ground storage tanks and related piping, and
emissions, discharges, releases or threatened releases therefrom and (iv)
including, without limitation, Programa de Adecuacion y Manejo Ambiental, dated
as of October 16, 1997 between Empresa Metalurgica La Oroya S.A., a Peruvian
corporation, and Ministry of Energy and Mines ("PAMA").
(w) There is no strike, labor dispute, slowdown or work stoppage
with the employees of the Company or any of the Subsidiaries which is pending
or, to the knowledge of the Issuers, threatened.
(x) Each of the Company and the Subsidiaries carries insurance in
such amounts and covering such risks as is adequate for the conduct of its
business and the value of its properties.
(y) None of the Company or the Subsidiaries has any liability for
any prohibited transaction or funding deficiency or any complete or partial
withdrawal liability with respect to
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any pension, profit sharing or other plan which is subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), to which the
Company or any of the Subsidiaries makes or ever has made a contribution and in
which any employee of the Company or of any Subsidiary is or has ever been a
participant. With respect to such plans, the Company and each Subsidiary is in
compliance in all material respects with all applicable provisions of ERISA.
(z) Each of the Company and the Subsidiaries (i) makes and keeps
accurate books and records and (ii) maintains internal accounting controls which
provide reasonable assurance that (A) transactions are executed in accordance
with management's authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements and to maintain accountability
for its assets, (C) access to its assets is permitted only in accordance with
management's authorization and (D) the reported accountability for its assets is
compared with existing assets at reasonable intervals.
(aa) None of the Issuers is, or will be, an "investment company" or
"promoter" or "principal underwriter" for an "investment company," as such terms
are defined in the Investment Company Act of 1940, as amended, and the rules and
regulations thereunder.
(bb) The Notes, the Guarantees, the Loan Agreement, the Indenture
and the Registration Rights Agreement will conform in all material respects to
the descriptions thereof in the Final Memorandum.
(cc) No holder of securities of the Issuers will be entitled to have
such securities registered under the registration statements required to be
filed by the Company pursuant to the Registration Rights Agreement other than as
expressly permitted thereby.
(dd) Immediately after the consummation of the transactions
contemplated by this Agreement, the fair value and present fair saleable value
of the assets of each of the Company and the Guarantors (each on a consolidated
basis) will exceed the sum of its stated liabilities and identified contingent
liabilities; none of the Company or the Guarantors (each on a consolidated
basis) is, nor will any of the Company or the Guarantors (each on a consolidated
basis) be, after giving effect to the execution, delivery and performance of
this Agreement, and the consummation of the transactions contemplated hereby,
(a) left with unreasonably small capital with which to
-13-
carry on its business as it is proposed to be conducted, (b) unable to pay its
debts (contingent or otherwise) as they mature or (c) otherwise insolvent.
(ee) None of the Issuers or any of their respective Affiliates (as
defined in Rule 501(b) of Regulation D under the Act) has directly, or through
any agent, (i) sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any "security" (as defined in the Act) of the same
class as the Notes within the six month period immediately prior to the date
hereof or (ii) engaged in any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) in
connection with the offering of the Notes or in any manner involving a public
offering within the meaning of Section 4(2) of the Act. Assuming the accuracy of
the representations and warranties of the Initial Purchasers in Section 8
hereof, it is not necessary in connection with the offer, sale and delivery of
the Securities to the Initial Purchasers in the manner contemplated by this
Agreement to register any of the Securities under the Act or to qualify the
Indenture under the TIA.
(ff) No securities of the Issuers are of the same class (within the
meaning of Rule 144A under the Act ("Rule 144A")) as the Securities and listed
on a national securities exchange registered under Section 6 of the Exchange
Act, or quoted in a U.S. automated inter-dealer quotation system.
(gg) None of the Issuers has taken, nor will any of them take,
directly or indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the price of
the Notes.
(hh) None of the Issuers, any of their respective Affiliates or any
person acting on its or their behalf (other than the Initial Purchasers) has
engaged in any directed selling efforts (as that term is defined in Regulation S
under the Act ("Regulation S")) with respect to the Securities; the Issuers and
their respective Affiliates and any person acting on its or their behalf (other
than the Initial Purchasers) have complied with the offering restrictions
requirement of Regulation S.
(ii) None of the Issuers or any of its or their properties or assets
has any sovereign immunity or any other immunity from the jurisdiction of any
court or from any legal process (whether through service or notice, attachment
prior to
-14-
judgment, attachment in and of judgment, execution or otherwise) under the laws
of Peru or the Cayman Islands.
(jj) Under current Peruvian law and Cayman Islands law and
regulations, there is no tax, duty, levy, impost, deduction, charge or
withholding (including, without limitation, any registration or transfer tax,
stamp duty (except stamp duty payable in the Cayman Islands on original
documents executed in or brought into the jurisdiction) or similar levy) imposed
or, to the knowledge of the Issuers, pending or proposed, by Peru or the Cayman
Islands or any political subdivision thereof or taxing authority therein or any
federation or organization or similar entity of which Peru or the Cayman Islands
is a member either (i) on or by virtue of the Issuers' execution, delivery,
performance or enforcement of this Agreement, the Notes, the Exchange Notes, the
Guarantees, the Indenture or any other document to be furnished hereunder or
thereunder, or (ii) on any payment to be made pursuant to this Agreement, the
Loan Agreement, the Indenture, the Guarantees or on payment to any holder of the
Notes. Under current and, to the knowledge of the Issuers, proposed or pending,
Peruvian and Cayman Islands law and regulations, interest payments by the
Company on the Notes and the Exchange Notes are not and will not be subject to
any Peruvian or Cayman Islands withholding or other tax except the 1%
withholding tax applicable to payments of interest on the loan pursuant to the
Loan Agreement.
Any certificate signed by any officer of any of the Issuers and
delivered to any Initial Purchaser or to counsel for the Initial Purchasers
shall be deemed a joint and several representation and warranty by each of the
Issuers to each Initial Purchaser as to the matters covered thereby.
3. Purchase, Sale and Delivery of the Notes. On the basis of the
representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Issuers agree to issue
and sell to the Initial Purchasers, and the Initial Purchasers, acting severally
and not jointly, agree to purchase the Notes (and the Guarantees) in the
respective amounts set forth on Schedule 1 hereto from the Company at 97.5% of
their principal amount. One or more certificates in definitive form for the
Notes that the Initial Purchasers have agreed to purchase hereunder, and in such
denomination or denominations and registered in such name or names as the
Initial Purchasers request upon notice to the Company at least 36 hours prior to
the Closing Date, shall be delivered by or on behalf of the Issuers to the
Initial Purchasers, against payment by or on behalf of the Initial Pur-
-15-
chasers of the purchase price therefor by wire transfer (same day funds) to such
account or accounts as the Company shall specify prior to the Closing Date, or
by such means as the parties hereto shall agree prior to the Closing Date. Such
delivery of and payment for the Notes shall be made at the offices of Cahill
Gordon & Reindel, 80 Pine Street, New York, New York at 10:00 A.M., New York
time, on March 12, 1998, or at such other place, time or date as the Initial
Purchasers, on the one hand, and the Issuers, on the other hand, may agree upon,
such time and date of delivery against payment being herein referred to as the
"Closing Date." The Company will make such certificate or certificates for the
Notes available for checking and packaging by the Initial Purchasers at the
offices of BT Alex. Brown Incorporated in New York, New York, or at such other
place as BT Alex. Brown Incorporated may designate, at least 24 hours prior to
the Closing Date.
4. Offering by the Initial Purchasers. The Initial Purchasers
propose to make an offering of the Notes at the price and upon the terms set
forth in the Final Memorandum, as soon as practicable after this Agreement is
entered into and as in the judgment of the Initial Purchasers is advisable.
5. Covenants of the Issuers. Each of the Issuers covenants and
agrees with each of the Initial Purchasers that:
(a) Each of the Issuers will not amend or supplement the Final
Memorandum or any amendment or supplement thereto of which the Initial
Purchasers shall not previously have been advised and furnished a copy for a
reasonable period of time prior to the proposed amendment or supplement and as
to which the Initial Purchasers shall not have given their consent. Each of the
Issuers will promptly, upon the reasonable request of the Initial Purchasers or
counsel for the Initial Purchasers, make any amendments or supplements to the
Preliminary Memorandum or the Final Memorandum that may be necessary in
connection with the resale of the Notes by the Initial Purchasers.
(b) Each of the Issuers will cooperate with the Initial Purchasers
in arranging for the qualification of the Securities for offering and sale under
the securities or "Blue Sky" laws of which jurisdictions as the Initial
Purchasers may designate and will continue such qualifications in effect for as
long as may be necessary to complete the resale of the Securities; provided,
however, that in connection therewith, each of the Issuers shall not be required
to qualify as a foreign corporation or to execute a general consent to service
of process
-16-
in any jurisdiction or subject itself to taxation in excess of a nominal dollar
amount in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the distribution by
the Initial Purchasers of the Notes or the Private Exchange Notes, any event
occurs or information becomes known as a result of which the Final Memorandum as
then amended or supplemented would include any untrue statement of a material
fact, or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, or
if for any other reason it is necessary at any time to amend or supplement the
Final Memorandum to comply with applicable law, the Issuers will promptly notify
the Initial Purchasers thereof and will prepare, at the expense of the Issuers,
an amendment or supplement to the Final Memorandum that corrects such statement
or omission or effects such compliance.
(d) The Company will, without charge, provide to the Initial
Purchasers and to counsel for the Initial Purchasers as many copies of the
Preliminary Memorandum and the Final Memorandum or any amendment or supplement
thereto as the Initial Purchasers may reasonably request.
(e) The Issuers will apply the net proceeds from the sale of the
Notes as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of the Notes remain outstanding, the Issuers
will furnish to the Initial Purchasers copies of all reports and other
communications (financial or otherwise) furnished by the Issuers to the Trustee
or to the holders of the Notes and, as soon as available, copies of any reports
or financial statements furnished to or filed by the Issuers with the Commission
or any national securities exchange on which any class of securities of the
Issuers may be listed.
(g) Prior to the Closing Date, each of the Issuers will furnish to
the Initial Purchasers, as soon as they have been prepared, a copy of any
unaudited interim financial statements, if any, of each of the Issuers, as
applicable, for any period subsequent to the period covered by the most recent
financial statements appearing in the Final Memorandum.
(h) None of the Issuers or any of their Affiliates will sell, offer
for sale or solicit offers to buy or otherwise negotiate in respect of any
"security" (as defined in the Act)
-17-
which could be integrated with the sale of the Notes in a manner which would
require the registration under the Act of the Notes.
(i) Each of the Issuers will not, and will not permit any of their
Affiliates to, engage in any form of general solicitation or general advertising
(as those terms are used in Regulation D under the Act) in connection with the
offering of the Notes or in any manner involving a public offering within the
meaning of Section 4(2) of the Act.
(j) For so long as any of the Notes remain outstanding, the Company
will make available at its expense, upon request, to any holder of such Notes
and any prospective purchasers thereof the information specified in Rule
144A(d)(4) under the Act, unless the Company is then subject, or voluntarily
filing reports pursuant, to Section 13 or 15(d) of the Exchange Act.
(k) The Company will use its reasonable efforts to (i) permit the
Notes to be designated PORTAL securities in accordance with the rules and
regulations adopted by the NASD relating to trading in the PORTAL Market and
(ii) permit the Notes to be eligible for clearance and settlement through The
Depository Trust Company.
(l) In connection with Notes offered and sold in an off shore
transaction (as defined in Regulation S), the Company will not register any
transfer of such Notes not made in accordance with the provisions of Regulation
S and will not, except in accordance with the provisions of Regulation S, if
applicable, issue any such Notes in the form of definitive securities.
6. Expenses. The Issuers agree to pay all costs and expenses
incident to the performance of its obligations under this Agreement, whether or
not the transactions contemplated herein are consummated or this Agreement is
terminated pursuant to Section 11 hereof, including all costs and expenses
incident to (i) the printing, word processing or other production of documents
with respect to the transactions contemplated hereby, including any costs of
printing the Preliminary Memorandum and the Final Memorandum and any amendment
or supplement thereto, and any "Blue Sky" memoranda, (ii) all arrangements
relating to the delivery to
-18-
the Initial Purchasers of copies of the foregoing documents, (iii) the fees and
disbursements of United States, Peruvian and Cayman Islands counsel, the
accountants and any other experts or advisors retained by the Issuers, (iv)
preparation (including printing), issuance and delivery to the Initial
Purchasers of the Notes, (v) the qualification of the Notes under state
securities and "Blue Sky" laws, including filing fees and fees and disbursements
of counsel for the Initial Purchasers relating thereto, (vi) its expenses in
connection with any meetings with prospective investors in the Notes, (vii) fees
and expenses of the Trustee including fees and expenses of its counsel, (viii)
all expenses and listing fees incurred in connection with the application for
quotation of the Notes on the PORTAL Market, (ix) 50% of any private jet rental
costs incurred while conducting any road show presentations and (x) any fees
charged by investment rating agencies for the rating of the Notes. If the sale
of the Notes provided for herein is not consummated because any condition to the
obligations of the Initial Purchasers set forth in Section 7 hereof is not
satisfied, because this Agreement is terminated (except pursuant to clauses
(ii), (iv), (v), (vii) or (viii) of Section 11(a) of this Agreement) or because
of any failure, refusal or inability on the part of the Issuers to perform all
obligations and satisfy all conditions on their part to be performed or
satisfied hereunder (other than solely by reason of a default by the Initial
Purchasers of their obligations hereunder after all conditions hereunder have
been satisfied in accordance herewith), the Issuers agree to promptly reimburse
the Initial Purchasers upon demand for all out-of-pocket expenses (including all
reasonable fees, disbursements and charges of Cahill Gordon & Reindel, United
States counsel for the Initial Purchasers, and Estudio Bellido Saco-Vertiz
Taboada, Peruvian counsel for the Initial Purchasers) that shall have been
incurred by the Initial Purchasers in connection with the proposed purchase and
sale of the Notes.
7. Conditions of the Initial Purchasers' Obligations. The obligation
of the Initial Purchasers to purchase and pay for the Notes shall, in their sole
discretion, be subject to the satisfaction or waiver of the following conditions
on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received
the opinion, dated as of the Closing Date and addressed to the Initial
Purchasers and Cadwalader, Wickersham & Taft, of Estudio Ferrero Abogados,
Special Peruvian counsel for the Issuers, in form and substance satisfactory to
counsel for the Initial Purchasers to the effect that:
(i) Each of Doe Run Mining and Doe Run Peru is duly organized,
validly existing and in good standing under the laws of Peru and has all
requisite power and authority to own its properties and to conduct its
business as de-
-19-
scribed in the Final Memorandum. Each of Doe Run Mining and Doe Run Peru
is duly qualified to do business as a foreign entity in good standing in
all other jurisdictions where the ownership or leasing of its properties
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.
(ii) Each of Doe Run Mining and Doe Run Peru has all requisite power
and authority to execute, deliver and perform its obligations under this
Agreement, the Indenture, the Registration Rights Agreement, the Loan
Agreement and the Guarantees and to consummate the transactions
contemplated hereby and thereby; this Agreement, the Indenture, the
Registration Rights Agreement, the Loan Agreement and the Guarantees and
the consummation by each of Doe Run Mining and Doe Run Peru of the
transactions contemplated hereby and thereby have been duly and validly
authorized by each of Doe Run Mining and Doe Run Peru. This Agreement, the
Indenture, the Registration Rights Agreement, the Loan Agreement and the
Guarantees have been duly executed and delivered by each of Doe Run Mining
and Doe Run Peru.
(iii) No legal or governmental proceedings are pending or, to the
knowledge of such counsel, threatened to which any of Doe Run Mining or
Doe Run Peru is a party or to which the property or assets of Doe Run
Mining or Doe Run Peru is subject which, if determined adversely to Doe
Run Mining or Doe Run Peru, would result, individually or in the
aggregate, in a Material Adverse Effect, or which seeks to restrain,
enjoin, prevent the consummation of or otherwise challenge the issuance or
sale of the Notes to be sold hereunder or the consummation of the other
transactions described in the Final Memorandum under the caption "Use of
Proceeds."
(iv) None of Doe Run Mining or Doe Run Peru is (i) in violation of
any provision of the charter, "Estatuto" or bylaws (or similar
organizational documents), (ii) to the knowledge of such counsel, in
breach or violation of any statute, judgment, decree, order, rule or
regulation applicable to any of them or any of their respective properties
or assets, except for any such breach or violation which would not,
individually or in the aggregate, have a Material Adverse Effect, or (iii)
in breach or default under (nor has any event occurred which, with notice
or pas-
-20-
sage of time or both, would constitute a default under) or in violation of
any of the terms or provisions of any Contract known to such counsel,
except for any such breach, default, violation or event which would not,
individually or in the aggregate, have a Material Adverse Effect.
(v) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby (including,
without limitation, the issuance and sale of the Notes to the Initial
Purchasers) will not conflict with or constitute or result in a breach or
a default under (or an event which with notice or passage of time or both
would constitute a default under) or violation of any of (i) the terms or
provisions of any Contract known to such counsel, except for any such
conflict, breach, violation, default or event which would not,
individually or in the aggregate, have a Material Adverse Effect, (ii) the
provisions of the Charter, "Estatutos" or bylaws (or similar
organizational document) of Doe Run Mining or Doe Run Peru, or (iii) any
statute, judgment, decree, order, rule or regulation known to such counsel
to be applicable to Doe Run Mining or Doe Run Peru or any of their
respective properties or assets, except for any such conflict, breach or
violation which would not, individually or in the aggregate, have a
Material Adverse Effect.
(vi) Doe Run Mining and Doe Run Peru have obtained all Permits
necessary to conduct the businesses now or proposed to be conducted by
them as described in the Final Memorandum, the lack of which would,
individually or in the aggregate, have a Material Adverse Effect; each of
Doe Run Mining and Doe Run Peru has fulfilled and performed all of its
obligations with respect to such Permits and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the holder of any such Permit.
(vii) To such counsel's knowledge, Doe Run Mining and Doe Run Peru
own or possess adequate licenses or other rights to use all patents,
trademarks, service marks, trade names, copyrights and know-how necessary
to conduct the businesses now or proposed to be operated by them as
described in the Final Memorandum, and to such counsel's knowledge, none
of Doe Run Mining or Doe Run Peru has received any notice of infringement
of or conflict with asserted rights of others with respect to any patents,
trademarks, service marks, trade names, copyrights or
-21-
know-how which, if such assertion of infringement or conflict were
sustained, would have a Material Adverse Effect.
(viii) To the knowledge of such counsel, there are no legal or
governmental proceedings involving or affecting Doe Run Mining and Doe Run
Peru or any of their respective properties or assets.
(ix) None of Doe Run Mining, Doe Run Peru or any of its or their
properties or assets has any sovereign immunity or any other immunity from
the jurisdiction of any court or from any legal process (whether through
service or notice, attachment prior to judgment, attachment in and of
judgment, execution or otherwise) under the laws of Peru.
(x) The choice of law provisions in the Indenture, this Agreement,
the Loan Agreement and the Registration Rights Agreement will be
recognized in the courts of Peru; under the laws of Peru, the submission
of Doe Run Mining and Doe Run Peru in such agreements to the jurisdiction
of any New York Court (as defined in Section 14 hereto) is legal, valid
and binding; and any judgment against Doe Run Mining and Doe Run Peru
obtained in a New York Court arising out of or in relation to the
obligations of Doe Run Mining or Doe Run Peru under such agreements would
be recognized and enforced by the courts of Peru.
(xi) Under current Peruvian law and regulations there is no tax,
duty, levy, impost, deduction, charge or withholding (including, without
limitation, any registration or transfer tax, stamp duty or similar levy)
imposed or, as such counsel is aware pending or proposed, by Peru or any
political subdivision thereof or taxing authority therein or any
federation or organization or similar entity of which Peru is a member
either (i) on or by virtue of Doe Run Mining's or Doe Run Peru's
execution, delivery, performance or enforcement of this Agreement, the
Loan Agreement, the Guarantees, the Indenture or any other document to be
furnished hereunder or thereunder, or (ii) on any payment to be made
pursuant to this Agreement, the Indenture, the Loan Agreement, the
Guarantees of Doe Run Mining and Doe Run Peru or on payment to any holder
of the Notes except the 1% withholding tax applicable to payments of
interest on the loan pursuant to the Peruvian Loan Agreement. Under
current and, as such counsel is aware, proposed or pending, Peruvian law
and regulations,
-22-
interest payments by the Company on the Notes and the Exchange Notes are
not and will not be subject to any Peruvian withholding or other tax.
(xii) The statements made in the Final Memorandum under the headings
"Industry," "Business," "Enforceability of Civil Liabilities," and "The
Republic of Peru" insofar as such statements purport to summarize certain
provisions of Peruvian law, are fair summaries and accurate in all
material respects.
(xiii) Such other opinions as the Initial Purchasers or their
counsel may reasonably request.
At the time the foregoing opinion is delivered, Estudio Ferrero
Abogados shall additionally state that it has participated in conferences with
officers and other representatives of Doe Run Mining and Doe Run Peru,
representatives of the independent public accountants for Doe Run Mining and Doe
Run Peru, representatives of the Initial Purchasers and counsel for the Initial
Purchasers, at which conferences the contents of the Final Memorandum and
related matters were discussed, and, although it has not independently verified
and is not passing upon and assumes no responsibility for the accuracy,
completeness or fairness of the statements contained in the Final Memorandum, no
facts have come to its attention which lead it to believe that the Final
Memorandum, on the date thereof or at the Closing Date, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements contained therein, in light
of the circumstances under which they were made, not misleading (it being
understood that such firm need express no opinion with respect to the financial
statements and related notes thereto and the other financial, statistical and
accounting data included in the Final Memorandum). The opinions of Estudio
Ferrero Abogados described in this Section shall be rendered to the Initial
Purchasers at the request of the Company and shall so state therein.
References to the Final Memorandum in this subsection (a) shall
include any amendment or supplement thereto prepared in accordance with the
provisions of this Agreement at the Closing Date.
(b) On the Closing Date, the Initial Purchasers shall have received
the opinion, dated as of the Closing Date and addressed to the Initial
Purchasers and Cadwalader, Wickersham & Taft, of Maples and Calder, Special
Cayman Islands coun-
-23-
sel for the Company, in form and substance satisfactory to counsel for the
Initial Purchasers which as to matters other than under Cayman Islands law, may
rely on or be supplemented by an opinion from another law firm reasonably
satisfactory to the Initial Purchasers, to the effect that:
(i) Doe Run Cayman is duly incorporated, validly existing and in
good standing under the laws of the Cayman Islands and has all requisite
corporate power and authority to own its properties and to conduct its
business as described in the Final Memorandum.
(ii) Doe Run Cayman has all requisite corporate power and authority
to execute, deliver and perform its obligations under this Agreement, the
Indenture, the Registration Rights Agreement and the Guarantee to which it
is a party and to consummate the transactions contemplated hereby and
thereby; this Agreement, the Indenture, the Registration Rights Agreement
and the Guarantee to which it is a party and the consummation by Doe Run
Cayman of the transactions contemplated hereby and thereby have been duly
and validly authorized by Doe Run Cayman. This Agreement, the Indenture,
the Registration Rights Agreement and the Guarantee to which it is a party
have been duly executed by Doe Run Cayman.
(iii) No legal proceedings are pending to which Doe Run Cayman is a
party in the Cayman Islands.
(iv) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby (including,
without limitation, the issuance and sale of the Notes to the Initial
Purchasers) will not conflict with or constitute or result in a breach or
a default under (or an event which with notice or passage of time or both
would constitute a default under) or violation of any of (i) the
provisions of the memorandum and articles of association of Doe Run
Cayman, or (ii) any statute, judgment, decree, order, rule or regulation
known to such counsel to be applicable to Doe Run Cayman or any of its
properties or assets in the Cayman Islands currently in force.
(v) No authorizations, consents or approvals are required from, and
no notice to or filing or registration with, any governmental authorities
or agencies or other official bodies in the Cayman Islands in connection
with the execution or delivery of this Agreement, the Inden-
-24-
ture, the Registration Rights Agreement and the Guarantee or the
performance by Doe Run Cayman of its obligations thereunder.
(vi) Neither Doe Run Cayman nor any of its properties or assets has
any sovereign immunity or any other immunity from the jurisdiction of any
court or from any legal process (whether through service or notice,
attachment, execution or otherwise) under the laws of the Cayman Islands.
(vii) The choice of law provisions in the Indenture, this Agreement
and the Registration Rights Agreement will be recognized in the courts of
the Cayman Islands, assuming evidence of such law is pleaded; under the
laws of the Cayman Islands, the submission of Doe Run Cayman in such
agreements to the jurisdiction of any New York Court (as defined in
Section 14 hereto) is legal, valid and binding assuming this to be the
case under the laws of the relevant jurisdiction; and any judgment against
Doe Run Cayman obtained in a New York Court arising out of or in relation
to the obligations of Doe Run Cayman under such agreements would be
recognized and enforced by the courts of the Cayman Islands, provided such
judgment is final for a liquidated sum not in respect of taxes or a fine
or penalty and which was not obtained in a manner and is not of a kind the
enforcement of which is contrary to the public policy of the Cayman
Islands.
(viii) Under current Cayman Islands law and regulations there is no
tax, duty, levy, impost, deduction, charge or withholding (including,
without limitation, any registration or transfer tax, stamp duty (except
stamp duty payable in the Cayman Islands on original documents executed in
or brought into the jurisdiction) or similar levy) imposed by the Cayman
Islands or any political subdivision thereof or taxing authority therein
or any federation or organization or similar entity of which the Cayman
Islands is a member either (i) on or by virtue of Doe Run Cayman's
execution, delivery, performance or enforcement of this Agreement, the
Guarantees, the Indenture, or any other document to be furnished hereunder
or thereunder, or (ii) on any payment to be made pursuant to this
Agreement, the Indenture, or on payment to any holder of the Notes. Under
current Cayman Islands law and regulations, interest payments by the
Company on the Notes and the Exchange Notes are not and will not be
subject to any Cayman Islands withholding or other tax.
-25-
(ix) The statements made in the Final Memorandum under the heading
"Enforceability of Civil Liabilities" insofar as such statements purport
to summarize certain provisions of Cayman Islands law, are fair summaries
and accurate in all material respects.
(x) Such other opinions as the Initial Purchasers or their counsel
may reasonably request.
References to the Final Memorandum in this subsection (b) shall
include any amendment or supplement thereto prepared in accordance with the
provisions of this Agreement at the Closing Date.
(c) On the Closing Date, the Initial Purchasers shall have received
the opinion, dated as of the Closing Date and addressed to the Initial
Purchasers, of Cadwalader, Wickersham & Taft, special New York counsel for the
Company, in form and substance satisfactory to counsel for the Initial
Purchasers which as to matters other than under New York law, rely on the
Estudio Ferrero Abogados opinion delivered under Section 7(a) hereof, and the
Maples and Calder opinion delivered under Section 7(b) hereof to the effect
that:
(i) Each of the Company and Fabricated Products is organized and
validly existing as a corporation in good standing under the laws of its
respective jurisdiction of incorporation, has all requisite power and
authority to own, lease and operate its properties and to conduct its
business as it is currently being conducted and as described in the Final
Memorandum, and is duly qualified and in good standing as a foreign
corporation, authorized to do business in each jurisdiction in which the
ownership, leasing and operating of its property and the conduct of its
business requires such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect;
(ii) Each of the Company and Fabricated Products has all requisite
corporate power and authority to execute, deliver and perform each of its
obligations under the Indenture, the Notes, the Exchange Notes and the
Private Exchange Notes; the Indenture meets the requirements for
qualification under the TIA; the Indenture has been duly and validly
authorized by the Company and Fabricated Products and, when duly executed
and delivered by the Company and Fabricated Products (assuming the due
authorization, execution and delivery thereof by Doe Run Cayman, Doe Run
-26-
Mining, Doe Run Peru and the Trustee), will constitute the valid and
legally binding agreement of the Company and the Guarantors, enforceable
against the Company and the Guarantors in accordance with its terms,
except that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, (ii) general
principles of equity and the discretion of the court before which any
proceeding therefor may be brought and (iii) any limitation on a waiver of
rights under any usury laws.
(iii) The Notes are in the form contemplated by the Indenture. The
Notes have each been duly and validly authorized by the Company and, when
duly executed and delivered by the Company and paid for by the Initial
Purchasers in accordance with its terms of this Agreement (assuming the
due authorization, execution and delivery of the Indenture by the Trustee
and due authentication and delivery of the Notes by the Trustee in
accordance with the Indenture), will constitute the valid and legally
binding obligations of the Company, entitled to the benefits of the
Indenture, and enforceable against the Company in accordance with its
terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally, (ii)
general principles of equity and the discretion of the court before which
any proceeding therefor may be brought and (iii) any limitation on a
waiver of rights under any usury laws.
(iv) The Exchange Notes and the Private Exchange Notes have been
duly and validly authorized by the Company, and when the Exchange Notes
and the Private Exchange Notes have been duly executed and delivered, if
ever, by the Company in accordance with the terms of the Registration
Rights Agreement and the Indenture (assuming the due authorization,
execution and delivery of the Indenture by the Trustee and due
authentication and delivery of the Exchange Notes and the Private Exchange
Notes by the Trustee in accordance with the Indenture), will constitute
the valid and legally binding obligations of the Company, entitled to the
benefits of the Indenture, and enforceable against the Company in
accordance with their terms, except that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to
-27-
creditors' rights generally, (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought and (iii) any limitation on a waiver of rights under any usury
laws.
(v) Each of the Company and Fabricated Products has all requisite
corporate power and authority to execute, deliver and perform its
obligations under the Registration Rights Agreement; the Registration
Rights Agreement has been duly and validly authorized by each of the
Company and Fabricated Products and, when duly executed and delivered by
the Company and Fabricated Products (assuming due authorization, execution
and delivery thereof by each of the Initial Purchasers, Doe Run Cayman,
Doe Run Mining and Doe Run Peru), will constitute the valid and legally
binding agreement of the Company and the Guarantors enforceable against
the Company and the Guarantors in accordance with its terms, except that
(A) the enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general principles
of equity and the discretion of the court before which any proceeding
therefor may be brought and (B) any rights to indemnity or contribution
thereunder may be limited by federal and state securities laws and public
policy considerations.
(vi) Fabricated Products has all requisite corporate power and
authority to execute, deliver and perform its obligations under the
Guarantee; the Guarantee has been duly and validly authorized by
Fabricated Products and, when duly executed and delivered by Fabricated
Products (assuming the due authorization, execution and delivery of the
Guarantees by each of the other Guarantors), the Guarantees will
constitute the valid and legally binding agreement of the Guarantors,
enforceable against the Guarantors in accordance with their terms, except
that (A) the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of the court before which
any proceeding therefor may be brought and (B) any rights to indemnity or
contribution thereunder may be limited by federal, state or foreign
securities laws and public policy considerations.
(vii) The Company has all requisite corporate power and authority to
execute, deliver and perform its obliga-
-28-
tions under the Loan Agreement and to consummate the transactions
contemplated thereby; the Loan Agreement and the consummation by the
Company of the transactions contemplated thereby have been duly and
validly authorized by the Company. The Loan Agreement has been duly
executed and delivered by the Company and (assuming the due authorization,
execution and delivery of the Loan Agreement by each of the Bank and Doe
Run Mining), will constitute the valid and legally binding agreement of
the Company and Doe Run Mining, enforceable against the Company and Doe
Run Mining in accordance with its terms, except that (A) the enforcement
thereof may be subject to (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought and (B) any rights to indemnity or contribution thereunder may be
limited by federal, state or foreign securities laws and public policy
considerations.
(viii) Each of the Company and Fabricated Products has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement and to consummate the transactions
contemplated hereby; this Agreement and the consummation by each of the
Company and Fabricated Products of the transactions contemplated hereby
have been duly and validly authorized by each of the Company and
Fabricated Products. This Agreement has been duly executed and delivered
by each of the Company and Fabricated Products.
(ix) The Indenture, the Notes and the Registration Rights Agreement
conform in all material respects to the descriptions thereof contained in
the Final Memorandum.
(x) None of the Issuers is, or immediately after the sale of the
Notes to be sold hereunder and the application of the proceeds from such
sale (as described in the Final Memorandum under the caption "Use of
Proceeds) will be, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(xi) Neither the consummation of the transactions contemplated by
this Agreement nor the sale, issuance, execution or delivery of the Notes
or the Exchange Notes will violate Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System.
-29-
(xii) No consent, approval, authorization or order of, or filing or
registration with, or other action by, any governmental agency or body of
the United States or the State of New York is necessary to be obtained or
made by the Issuers (1) for the due execution, delivery and performance by
the Issuers of the Indenture or (2) for the issuance, sale or delivery of
the Notes to the Initial Purchasers or the validity or enforceability of
the Notes.
(xiii) No registration under the Act of the Securities is required
in connection with the sale of the Securities to the Initial Purchasers as
contemplated by this Agreement and the Final Memorandum or in connection
with the initial resale of the Securities by the Initial Purchasers in
accordance with Section 8 of this Agreement, and prior to the commencement
of the Exchange Offer (as defined in the Registration Rights Agreement) or
the effectiveness of the Shelf Registration Statement (as defined in the
Registration Rights Agreement) and the Indenture is not required to be
qualified under the TIA, in each case assuming the accuracy of the Initial
Purchasers' representations in Section 8 hereof and those of the Issuers
contained in this Agreement regarding the absence of a general
solicitation or directed selling efforts in connection with the sale of
such Notes to the Initial Purchasers and the initial resale thereof and
the due performance by the Initial Purchasers of the agreements set forth
in Section 8 hereof.
(xiv) The statements made in the Final Memorandum under the headings
"Description of the Notes," "Certain U.S. Federal Tax Considerations for
Non-U.S. Holders of the Notes," "Transfer Restrictions," "Exchange Offer;
Registration Rights," and "Private Placement," insofar as such statements
purport to summarize certain provisions of the Notes, the Indenture and
this Agreement and federal laws of the United States referred to
thereunder, are fair summaries and accurate in all material respects.
(xv) Such counsel does not know of any pending or threatened action,
suit or proceeding before any U.S. court or governmental agency, authority
or body or any arbitrator to which the Company or any of its subsidiaries
is a party or to which any of the properties of the Company or any of its
subsidiaries is subject other than proceedings fairly and accurately
described in all material respects in the Final Memorandum and proceedings
which such counsel believes are not likely to have a Material
-30-
Adverse Effect or a material adverse effect on the power or ability of the
Company to perform its obligations under the Notes, the Indenture or this
Agreement.
In addition to the matters set forth above, such opinion shall also
include a statement to the effect that no facts have come to the attention to
such counsel which cause them to believe that the Final Memorandum (except for
the financial statements and all other financial data contained therein, as to
which such counsel need not express any belief), or any amendment or supplement
thereto, as of the respective dates thereof and as of the Closing Date,
contained or contains an untrue statement of a material fact or omitted or omits
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. With
respect to such statement, such counsel may state that their belief is based
upon the procedures set forth therein, but is without independent check or
verification.
(d) On the Closing Date, the Initial Purchasers shall have received
the opinion, in form and substance satisfactory to the Initial Purchasers, dated
as of the Closing Date and addressed to the Initial Purchasers, of Cahill Gordon
& Reindel, counsel for the Initial Purchasers, with respect to certain legal
matters relating to this Agreement and such other related matters as the Initial
Purchasers may reasonably require. In rendering such opinion, Cahill Gordon &
Reindel shall have received and may rely upon such certificates and other
documents and information as it may reasonably request to pass upon such
matters.
(e) On the Closing Date, the Initial Purchasers shall have received
the opinion, dated as of the Closing Date and addressed to the Initial
Purchasers, of Estudio Bellido Saco-Vertiz Taboada, Peruvian counsel for the
Initial Purchasers, with respect to certain legal matters relating to this
Agreement and such other related matters as the Initial Purchasers may
reasonably require, to the effect that:
(i) Each of Doe Run Mining and Doe Run Peru is duly consituted,
incorporated, validly existing and in good standing under the laws of Peru
and has all requisite corporate power and authority to own its properties
and to conduct its business as described in the Final Memorandum. Under
their respective by-laws ("Estatutos") each of Doe Run Mining and Doe Run
Peru are qualified to do business inside or outside Peru.
-31-
(ii) Each of Doe Run Mining and Doe Run Peru has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement, the Indenture, the Loan Agreement, the
Registration Rights Agreement and the Guarantees and to consummate the
transactions contemplated hereby and thereby. The validity, legality and
enforceability of this Agreement in respect of Doe Run Peru and Doe Run
Mining, is subject and conditioned to its ratification by the Partner's
Meeting ("Junta de Socios") of Doe Run Peru and Doe Run Mining
respectively, where it should also be ratified the authority and powers of
the individuals who have signed this Agreement to execute and sign such
Agreement on behalf and in representation of Doe Run Peru and Doe Run
Mining. The legal effects in respect of third parties of the Indenture,
the Registration Rights Agreement and the Guarantee is subject and
conditioned to the recording at the proper Peruvian Pacific Registry (the
"Registro de Personas Juridicas de Lima") of the Partners Meetings Minutes
("Actas de Juntas de Socios") of Doe Run Peru and Doe Run Mining, held on
March 7, 1998 and March 7, 1998, respectively. This Agreement, the
Indenture, the Loan Agreement, the Registration Rights Agreement and the
Guarantees have been duly executed and delivered by each of Doe Run Mining
and Doe Run Peru.
(iii) To the knowledge of such counsel, no legal or governmental
proceedings are pending or threatened to which any of Doe Run Mining or
Doe Run Peru is a party or to which the property or assets of Doe Run
Mining or Doe Run Peru is subject which, if determined adversely to Doe
Run Mining or Doe Run Peru, would result, individually or in the
aggregate, in a Material Adverse Effect, or which seeks to restrain,
enjoin, prevent the consummation of or otherwise challenge the issuance or
sale of the Notes to be sold hereunder or the consummation of the other
transactions described in the Final Memorandum under the caption "Use of
Proceeds."
(iv) To the knowledge of such counsel, none of Doe Run Mining or Doe
Run Peru is (i) in violation of any provision of the charter, "Estatuto"
or bylaws (or similar organizational documents), (ii) in breach or
violation of any statute, judgment, decree, order, rule or regulation
applicable to any of them or any of their respective properties or assets,
except for any such breach or violation which would not, individually or
in the aggregate, have a Material Adverse Effect, or (iii) in breach or
default un-
-32-
der (nor has any event occurred which, with notice or passage of time or
both, would constitute a default under) or in violation of any of the
terms or provisions of any Contract known to such counsel, except for any
such breach, default, violation or event which would not, individually or
in the aggregate, have a Material Adverse Effect.
(v) To the knowledge of such counsel, the execution, delivery and
performance of this Agreement and the Loan Agreement, and the consummation
of the transactions contemplated hereby and thereby (including, without
limitation, the issuance and sale of the Notes to the Initial Purchasers)
will not conflict with or constitute or result in a breach or a default
under (or an event which with notice or passage of time or both would
constitute a default under) or violation of any of (i) the terms or
provisions of any Contract known to such counsel, except for any such
conflict, breach, violation, default or event which would not,
individually or in the aggregate, have a Material Adverse Effect, (ii)
provision of the Charter, "Estatutos", "Pacto Social",or bylaws (or
similar organizational document) of Doe Run Mining or Doe Run Peru, or
(iii) any statute, judgment, decree, order, rule or regulation known to
such counsel to be applicable to Doe Run Mining or Doe Run Peru or any of
their respective properties or assets, except for any such conflict,
breach or violation which would not, individually or in the aggregate,
have a Material Adverse Effect.
(vi) Doe Run Mining and Doe Run Peru have obtained all Permits
necessary to conduct the businesses now or proposed to be conducted by
them as described in the Final Memorandum, the lack of which would,
individually or in the aggregate, have a Material Adverse Effect.
(vii) To the knowledge of such counsel, Doe Run Mining and Doe Run
Peru own or possess adequate licenses or other rights to use all patents,
trademarks, service marks, trade names, copyrights and know-how necessary
to conduct the businesses now or proposed to be operated by them as
described in the Final Memorandum, and none of Doe Run Mining and Doe Run
Peru has received any notice of infringement of or conflict with asserted
rights of others with respect to any patents, trademarks, service marks,
trade names, copyrights or know-how which, if such assertion of
infringement or conflict were sustained, would have a Material Adverse
Effect.
-33-
(viii) To the knowledge of such counsel, there are no legal or
governmental proceedings involving or affecting Doe Run Mining and Doe Run
Peru or any of their respective properties or assets.
(ix) Neither Doe Run Mining nor Doe Run Peru nor any of its or their
properties or assets has any sovereign immunity or any other immunity from
the jurisdiction of any court or from any legal process (whether through
service or notice, attachment prior to judgment, attachment in and of
judgment, execution or otherwise) under the laws of Peru.
(x) The choice of law provisions in the Indenture, Section 14 of
this Agreement, the Loan Agreement and the Registration Rights Agreement
will be recognized in the courts of Peru, under the laws of Peru, the
submission of Doe Run Mining and Doe Run Peru in such agreements to the
jurisdiction of any New York Court (as defined in Section 14 hereto) is
legal, valid and binding. Any final and conclusive judgment for a fixed
and definite sum obtained against Doe Run Mining or Doe Run Peru, in a New
York Court arising out or in relation to the obligation of Doe Run Mining
or Doe Run Peru under such agreements, will, upon request, be deemed valid
and enforceable in the Republic of Peru, provided that (i) there is in
effect a treaty between the country where said foreign court sits and the
Republic of Peru regarding the recognition and enforcement of foreign
judgments or, in the absence of such a treaty, as is presently the case,
(ii) the following requirements are met: (a) the judgment does not resolve
matters under the exclusive jurisdiction of Peruvian courts; (b) such
court had jurisdiction under its own conflicts of law rules and under
general principles of international procedural jurisdiction; (c) the
defendant was served in accordance with the laws of the place where the
procedure took place, was granted a reasonable opportunity to appear
before such foreign court, and was guaranteed due process rights; (d) the
judgment has the status of res judicata in the jurisdiction of the court
rendering such judgment; (e) there is no pending litigation in Peru
between the same parties for the same dispute, which shall have been
initiated before the commencement of the proceeding that concluded with
the foreign judgment; (f) the judgment is not incompatible with another
previously rendered judgment which fulfills the requirements of
recognition and enforceability established by Peruvian law; (g) the
judgment is not contrary to public order or good mor-
-34-
als, and (h) it is not proven that such foreign court denies enforcement
of Peruvian judgments or engages in a review of the merits or substance
thereof.
(xi) Under current Peruvian law and regulations there is no tax,
duty, levy, impost, deduction, charge or withholding (including, without
limitation, any registration or transfer tax, stamp duty or similar levy)
imposed or, as such counsel is aware pending or proposed, by Peru or any
political subdivision thereof or taxing authority therein or any
federation or organization or similar entity of which Peru is a member
either (i) on or by virtue of Doe Run Mining's or Doe Run Peru's
execution, delivery, performance or enforcement of this Agreement, the
Loan Agreement, the Guarantees, the Indenture or any other document to be
furnished hereunder or thereunder, or (ii) on any payment to be made
pursuant to this Agreement, the Indenture, the Loan Agreement, the
Guarantees of Doe Run Mining and Doe Run Peru or on payment to any holder
of the Notes. Under current and, as such counsel is aware, proposed or
pending, Peruvian law and regulations, interest payments on the Notes and
the Exchange Notes are not and will not be subject to any Peruvian
withholding or other tax except the 1% withholding income tax applicable
to payments of interest on the loan pursuant to the Peruvian Loan
Agreement.
(xii) The statements made in the Final Memorandum under the headings
"Business," "Enforceability of Civil Liabilities," and "The Republic of
Peru" insofar as such statements purport to summarize certain provisions
of Peruvian law, are fair summaries and accurate in all material respects.
(xiii) Such other opinions as the Initial Purchasers or their
counsel may reasonably request.
References to the Final Memorandum in this subsection (e) shall
include any amendment or supplement thereto prepared in accordance with the
provisions of this Agreement at the Closing Date.
(f) The Initial Purchasers shall have received from the Independent
Accountants comfort letters dated the date hereof and the Closing Date, in form
and substance satisfactory to counsel for the Initial Purchasers.
-35-
(g) The representations and warranties of each of the Issuers
contained in this Agreement shall be true and correct on and as of the date
hereof and on and as of the Closing Date as if made on and as of the Closing
Date; the statements of the Issuers' officers made pursuant to any certificate
delivered in accordance with the provisions hereof shall be true and correct on
and as of the date made and on and as of the Closing Date; each of the Issuers
shall have performed all covenants and agreements and satisfied all conditions
on their part to be performed or satisfied hereunder at or prior to the Closing
Date; and, except as described in the Final Memorandum (exclusive of any
amendment or supplement thereto after the date hereof), subsequent to the date
of the most recent financial statements in such Final Memorandum, there shall
have been no event or development, and no information shall have become known,
that, individually or in the aggregate, has or would be reasonably likely to
have a Material Adverse Effect.
(h) The sale of the Notes hereunder shall not be enjoined
(temporarily or permanently) on the Closing Date.
(i) Subsequent to the date of the most recent financial statements
in the Final Memorandum (exclusive of any amendment or supplement thereto after
the date hereof), none of the Company or any of the Subsidiaries shall have
sustained any loss or interference with respect to its business or properties
from fire, flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any strike, labor dispute, slow down or work stoppage or
from any legal or governmental proceeding, order or decree, which loss or
interference, individually or in the aggregate, has or would be reasonably
likely to have a Material Adverse Effect.
(j) The Initial Purchasers shall have received a certificate of each
of the Issuers, dated the Closing Date, signed on behalf of the Issuers by its
Chairman of the Board, Chief Executive Officer, President, any Vice President or
any General Manager and the Chief Financial Officer or Finance Manager, to the
effect that:
(i) The representations and warranties of each of the Issuers
contained in this Agreement are true and correct on and as of the date
hereof and on and as of the Closing Date, and each of the Issuers has
performed all covenants and agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing
Date;
-36-
(ii) At the Closing Date, since the date hereof or since the date of
the most recent financial statements in the Final Memorandum (exclusive of
any amendment or supplement thereto after the date hereof), no event or
development has occurred, and no information has become known, that,
individually or in the aggregate, has or would be reasonably likely to
have a Material Adverse Effect; and
(iii) The sale of the Notes hereunder has not been enjoined
(temporarily or permanently).
(k) On the Closing Date, the Initial Purchasers shall have received
the Registration Rights Agreement executed by each of the Issuers and such
agreement shall be in full force and effect.
On or before the Closing Date, the Initial Purchasers and counsel
for the Initial Purchasers shall have received such further documents, opinions,
certificates, letters and schedules or instruments relating to the business,
corporate, legal and financial affairs of the Company and the Subsidiaries as
they shall have heretofore reasonably requested from the Company.
All such documents, opinions, certificates, letters, schedules or
instruments delivered pursuant to this Agreement will comply with the provisions
hereof only if they are reasonably satisfactory in all material respects to the
Initial Purchasers and counsel for the Initial Purchasers. The Company shall
furnish to the Initial Purchasers such conformed copies of such documents,
opinions, certificates, letters, schedules and instruments in such quantities as
the Initial Purchasers shall reasonably request.
8. Offering of Notes; Restrictions on Transfer. (a) Each of the
Initial Purchasers represents and warrants (as to itself only) that it is a
qualified institutional buyer (as defined in Rule 144A) (a "QIB"). Each of the
Initial Purchasers agrees with the Company (as to itself only) that (i) it has
not and will not solicit offers for, or offer or sell, the Notes by any form of
general solicitation or general advertising (as those terms are used in
Regulation D under the Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Act; and (ii) it has and will solicit offers
for the Notes only from, and will offer the Notes only to (A) in the case of
offers inside the United States, persons whom the Initial Purchasers reasonably
believe to be QIBs or, if any such person is buying for one or more
institutional ac-
-37-
counts for which such person is acting as fiduciary or agent, only when such
person has represented to the Initial Purchasers that each such account is a
QIB, to whom notice has been given that such sale or delivery is being made in
reliance on Rule 144A, and, in each case, in transactions under Rule 144A and
(B) in the case of offers outside the United States, to persons other than U.S.
persons ("foreign purchasers," which term shall include dealers or other
professional fiduciaries in the United States acting on a discretionary basis
for foreign beneficial owners (other than an estate or trust)); provided,
however, that, in the case of this clause (B), in purchasing such Notes such
persons are deemed to have represented and agreed as provided under the caption
"Transfer Restrictions" contained in the Final Memorandum (or, if the Final
Memorandum is not in existence, in the most recent Memorandum).
(b) Each of the Initial Purchasers represents and warrants (as to
itself only) with respect to offers and sales outside the United States that (i)
it has and will comply with all applicable laws and regulations in each
jurisdiction in which it acquires, offers, sells or delivers Notes or has in its
possession or distributes any Memorandum or any such other material, in all
cases at its own expense; (ii) the Notes have not been and will not be offered
or sold within the United States or to, or for the account or benefit of, U.S.
persons except in accordance with Regulation S or pursuant to an exemption from
the registration requirements of the Act; (iii) it has offered the Notes and
will offer and sell the Notes (A) as part of its distribution at any time and
(B) otherwise until 40 days after the later of the commencement of the offering
and the Closing Date, only in accordance with Rule 903 of Regulation S and,
accordingly, neither it nor any persons acting on its behalf have engaged or
will engage in any directed selling efforts (within the meaning of Regulation S)
with respect to the Notes, and any such persons have complied and will comply
with the offering restrictions requirement of Regulation S; and (iv) it agrees
that, at or prior to confirmation of sales of the Notes, it will have sent to
each distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases Notes from it during the restricted period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under the United
States Securities Act of 1933 (the "Securities Act") and may not be
offered and sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of the distribution of the Securities
at any time or
-38-
(ii) otherwise until 40 days after the later of the commencement of the
offering and the closing date of the offering, except in either case in
accordance with Regulation S (or Rule 144A if available) under the
Securities Act. Terms used above have the meaning given to them in
Regulation S."
Terms used in this Section 8 and not defined in this Agreement have
the meanings given to them in Regulation S.
9. Indemnification and Contribution. (a) Each of the Issuers,
jointly and severally, agrees to indemnify and hold harmless the Initial
Purchasers, and each person, if any, who controls any Initial Purchaser within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, against
any losses, claims, damages or liabilities to which any Initial Purchaser or
such controlling person may become subject under the Act, the Exchange Act or
otherwise, insofar as any such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any material
fact contained in any Memorandum or any amendment or supplement thereto;
or
(ii) the omission or alleged omission to state, in any Memorandum or
any amendment or supplement thereto, a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and will reimburse, as incurred, the Initial Purchasers and each such
controlling person for any legal or other expenses incurred by the Initial
Purchasers or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; provided, however, the Issuers
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 any untrue statement or
alleged untrue statement or omission or alleged omission made in any Memorandum
or any amendment or supplement thereto in reliance upon and in conformity with
written information concerning the Initial Purchasers furnished to the Issuers
by the Initial Purchasers specifically for use therein; provided, further,
however, that the Issuers will not be required to provide the indemnity
hereunder if such untrue statement or alleged untrue statement or omission or
alleged omission was contained or made in any Memorandum and corrected in a
subsequent Memorandum and any such loss, claim,
-39-
damage or liability suffered or incurred by an indemnified party resulted from
any action, claim or suit by any purchaser of the Notes from such indemnified
party and such indemnified party failed to deliver or provide a copy of such
subsequent Memorandum to such person with or prior to the confirmation of the
sale of such Notes to such person; provided that the Issuers will be required to
provide the indemnity hereunder if any Issuer fails to comply with Section 5(d)
of this Agreement with respect to such subsequent Memorandum. This indemnity
agreement will be in addition to any liability that the Issuers may otherwise
have to the indemnified parties. The Issuers shall not be liable under this
Section 9 for any settlement of any claim or action effected without its prior
written consent, which shall not be unreasonably withheld.
(b) The Initial Purchasers agree to indemnify and hold harmless the
Issuers, their directors, their officers and each person, if any, who controls
any of the Issuers within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act against any losses, claims, damages or liabilities to which the
Company or any such director, officer or controlling person may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any material fact
contained in any Memorandum or any amendment or supplement thereto or any
Application, or (ii) the omission or the alleged omission to state therein a
material fact required to be stated in any Memorandum or any amendment or
supplement thereto or any Application, 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
concerning such Initial Purchaser, furnished to the Issuers by the Initial
Purchasers specifically for use therein; and subject to the limitation set forth
immediately preceding this clause, will reimburse, as incurred, any legal or
other expenses incurred by the Issuers or any such director, officer or
controlling person in connection with investigating or defending against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action in respect thereof. This indemnity agreement will be
in addition to any liability that the Initial Purchasers may otherwise have to
the indemnified parties. The Initial Purchasers shall not be liable under this
Section 9 for any settlement of any claim or action effected without their
consent, which shall not be unreasonably withheld. The Company shall not,
without the prior written consent
-40-
of the Initial Purchasers, effect any settlement or compromise of any pending or
threatened proceeding in respect of which any Initial Purchaser is or could have
been a party, or indemnity could have been sought hereunder by any Initial
Purchaser, unless such settlement (A) includes an unconditional written release
of the Initial Purchasers, in form and substance reasonably satisfactory to the
Initial Purchasers, from all liability on claims that are the subject matter of
such proceeding and (B) does not include any statement as to an admission of
fault, culpability or failure to act by or on behalf of any Initial Purchaser.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action for which such indemnified
party is entitled to indemnification under this Section 9, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 9, notify the indemnifying party of the commencement
thereof in writing; but the omission to so notify the indemnifying party (i)
will not relieve it from any liability under paragraph (a) or (b) above unless
and to the extent such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraphs (a) and (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 reasonably satisfactory to such indemnified
party; provided, however, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the
-41-
right to select separate counsel to defend such action on behalf of such
indemnified party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and approval
by such indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under this
Section 9 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the immediately preceding
sentence (it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, designated by the Initial Purchasers
in the case of paragraph (a) of this Section 9 or the Issuers in the case of
paragraph (b) of this Section 9, representing the indemnified parties under such
paragraph (a) or paragraph (b), as the case may be, who are parties to such
action or actions) or (ii) the indemnifying party has authorized in writing the
employment of counsel for the indemnified party at the expense of the
indemnifying party. After such notice from the indemnifying party to such
indemnified party, the indemnifying party will not be liable for the costs and
expenses of any settlement of such action effected by such indemnified party
without the prior written consent of the indemnifying party (which consent shall
not be unreasonably withheld), unless such indemnified party waived in writing
its rights under this Section 9, in which case the indemnified party may effect
such a settlement without such consent.
(d) In circumstances in which the indemnity agreement provided for
in the preceding paragraphs of this Section 9 is unavailable to, or insufficient
to hold harmless, an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof), each indemnifying party, in
order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect (i) the relative benefits received by
the indemnifying party or
-42-
parties on the one hand and the indemnified party on the other from the offering
of the Notes or (ii) if the allocation provided by the foregoing clause (i) is
not permitted by applicable law, not only such relative benefits but also the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions or
alleged statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof). The relative benefits received by
the Issuers on the one hand and any Initial Purchaser on the other shall be
deemed to be in the same proportion as the total proceeds from the offering (net
of discounts and commissions but before deducting expenses) received by the
Company bear to the total discounts and commissions received by such Initial
Purchaser. The relative fault of the parties 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 Issuers on the one hand, or such Initial
Purchaser on the other, the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission or
alleged statement or omission, and any other equitable considerations
appropriate in the circumstances. The Issuers and the Initial Purchasers agree
that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to in the first sentence of this paragraph (d). Notwithstanding any other
provision of this paragraph (d), no Initial Purchaser shall be obligated to make
contributions hereunder that in the aggregate exceed the total discounts,
commissions and other compensation received by such Initial Purchaser under this
Agreement, less the aggregate amount of any damages that such Initial Purchaser
has otherwise been required to pay by reason of the untrue or alleged untrue
statements or the omissions or alleged omissions to state a material fact, and
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. For purposes of this paragraph (d),
each person, if any, who controls an Initial Purchaser within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Initial Purchasers, and each director of the
Issuers, each officer of the Issuers and each person, if any, who controls the
Issuers within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, shall have the same rights to contribution as the Issuers.
10. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Issuers, their
officers and the Initial Pur-
-43-
chasers set forth in this Agreement or made by or on behalf of them pursuant to
this Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Issuers, any of its officers or
directors, the Initial Purchasers or any controlling person referred to in
Section 9 hereof and (ii) delivery of and payment for the Notes. The respective
agreements, covenants, indemnities and other statements set forth in Sections 6,
9 and 15 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
11. Termination. (a) This Agreement may be terminated in the sole
discretion of the Initial Purchasers by notice to the Issuers given prior to the
Closing Date in the event that the Issuers shall have failed, refused or been
unable to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder at or prior thereto or, if at or prior to the
Closing Date:
(i) any of the Company or the Subsidiaries shall have sustained any
loss or interference with respect to its businesses or properties from
fire, flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any strike, labor dispute, slow down or work
stoppage or any legal or governmental proceeding, which loss or
interference, in the sole judgment of the Initial Purchasers, has had or
has a Material Adverse Effect, or there shall have been, in the sole
judgment of the Initial Purchasers, any event or development that,
individually or in the aggregate, has or could be reasonably likely to
have a Material Adverse Effect (including without limitation a change in
control of the Company or the Subsidiaries), except in each case as
described in the Final Memorandum (exclusive of any amendment or
supplement thereto);
(ii) trading in securities of any of the Issuers or in securities
generally on the New York Stock Exchange, American Stock Exchange or the
Nasdaq National Market shall have been suspended or minimum or maximum
prices shall have been established on any such exchange or market;
(iii) there shall have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations, of the Company and the
Subsidiaries, taken as a whole, from that set forth in the Final
Memorandum
-44-
(without regard to any amendment thereto after the date hereof) that is
material and adverse and that makes it, in the Initial Purchasers'
judgment, impracticable to market the Notes on the terms and in the manner
contemplated in the Final Memorandum (without regard to any amendment
thereto after the date hereof).
(iv) a banking moratorium shall have been declared by New York or
United States authorities or the Peruvian authorities in Peru;
(v) there shall have been (A) an outbreak or escalation of
hostilities between the United States or Peru and any foreign power, or
(B) an outbreak or escalation of any other insurrection or armed conflict
involving the United States or Peru or any other national or international
calamity or emergency, or (C) any material change in the financial markets
of the United States or Peru which, in the case of (A), (B) or (C) above
and in the sole judgment of the Initial Purchasers, makes it impracticable
or inadvisable to proceed with the offering or the delivery of the Notes
as contemplated by the Final Memorandum; or
(vi) any securities of any of the Issuers shall have been downgraded
or placed on any "watch list" for possible downgrading by any nationally
recognized statistical rating organization.
(vii) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs that has
a material adverse effect on the financial markets in the United States or
Peru, and would, in the sole judgment of the Initial Purchasers, make it
impracticable or inadvisable to market the Notes; or
(viii) the enactment, publication, decree, or other promulgation of
any federal or state statute, regulation, rule, order of any court or
other governmental authority which, in the judgment of the Initial
Purchasers, would have a Material Adverse Effect.
(b) Termination of this Agreement pursuant to this Section 11 shall
be without liability of any party to any other party except as provided in
Section 10 hereof.
12. Information Supplied by the Initial Purchasers. The statements
set forth in the last paragraph on the front
-45-
cover page in the third paragraph under the heading "Private Placement" in the
Final Memorandum (to the extent such statements relate to the Initial
Purchasers) constitute the only information furnished by the Initial Purchasers
to the Issuers for the purposes of Sections 2(a) and 9 hereof.
13. Notices. All communications hereunder shall be in writing and,
if sent to the Initial Purchasers, shall be mailed or delivered to (i) BT Alex.
Brown Incorporated, 130 Liberty Street, New York, New York 10006, Attention:
Corporate Finance Department; if sent to the Issuers, shall be mailed or
delivered to the Issuers c/o The Doe Run Resources Corporation, 1801 Park 270
Drive, St. Louis, Missouri 63146, Attention: Chief Executive Officer; with a
copy to Cadwalader, Wickersham & Taft, 100 Maiden Lane, New York, N.Y. 10038,
Attention: Michael C. Ryan, Esq.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; three business days
after being deposited in the mail, postage prepaid, if mailed; and one business
day after being timely delivered to a next-day air courier.
14. Consent to Jurisdiction. Each of the parties hereto irrevocably
agrees that any legal dispute, action or proceeding arising out of or based upon
this Agreement or the transactions contemplated hereby by the Initial
Purchasers, directors, officers, employees or agents of the Initial Purchasers
or by each person, if any, who controls the Initial Purchasers, may be
instituted in any New York State or U.S. Federal court sitting in the Borough of
Manhattan, New York City, New York, U.S.A. (each a "New York Court" and
collectively, the "New York Courts"), and irrevocably waives, to the extent
permitted by applicable law, any objection which it may now or hereafter have to
the laying of venue to any such proceeding and irrevocably submits to the
non-exclusive jurisdiction of such courts in any such suit, action or
proceeding.
15. Waiver of Jury Trial; Waiver of Immunity. (a) Each of the
parties to this Agreement hereby irrevocably waives all right to a trial by jury
in any action, proceeding or counterclaim (whether based upon contract, tort or
otherwise) arising out of or relating to this Agreement or the transactions
contemplated hereby.
(b) To the extent that the Issuers or any of their revenues, assets
or properties shall be entitled, with respect to any proceeding at any time
brought against the Issuers or any
-46-
of their revenues, assets or properties or with respect to any suit, action or
proceeding at any time brought for the purpose of enforcing or executing any
judgment in any jurisdiction in which any specified court or other court is
located, to any immunity from suit, from the jurisdiction of any such court,
from attachment prior to judgment, from attachment in aid of execution of
judgment, from execution of a judgment or from any other legal or judicial
process or remedy, and to the extent of such immunity, the Issuers irrevocably
agree not to claim and irrevocably waive such immunity to the fullest extent
permitted by the laws of such jurisdiction (including, without limitation, the
Foreign Sovereign Immunities Act of 1976 of the United States).
16. Payments. All payments hereunder shall be made without defense,
setoff or counterclaim of any kind and shall be made freely available in U.S.
dollars in New York without any deduction on account of taxes. If any amount is
required to be withheld on account of taxes, then the Company shall pay to the
Initial Purchasers such additional amounts as shall be required to be paid so
that the net amount received by the Initial Purchasers, after all such
deductions or withholdings, shall not be less than the Initial Purchasers would
have received had no such deductions or withholdings been made or required and
shall promptly deliver to the Initial Purchasers all relevant tax receipts.
17. Currency Indemnity. The obligation of the Company in respect of
any sum due to the Initial Purchasers shall, notwithstanding any judgment in a
currency other than United States dollars, not be discharged until the first
business day following receipt by the Initial Purchasers of any sum adjudged to
be so due in such other currency, on which (and only to the extent that) the
Initial Purchasers may in accordance with normal banking procedures purchase
United States dollars with such other currency; if the United States dollars so
purchased are less than the sum originally due to the Initial Purchasers
hereunder, the Company agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify the Initial Purchasers against such loss. If the
United States dollars so purchased are greater than the sum originally due to
the Initial Purchasers hereunder, the Initial Purchasers agree to pay to the
Company an amount equal the excess of the dollars so purchased over the sum
originally due to the Initial Purchasers hereunder.
18. Successors. This Agreement shall inure to the benefit of and be
binding upon the Initial Purchasers, the Company and their respective successors
and legal representatives, and nothing expressed or mentioned in this Agreement
is in-
-47-
tended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained; this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that (i) the indemnities of the
Issuers contained in Section 9 of this Agreement shall also be for the benefit
of any person or persons who control the Initial Purchasers within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act and (ii) the
indemnities of the Initial Purchasers contained in Section 9 of this Agreement
shall also be for the benefit of the directors of the Issuers, their officers
and any person or persons who control the Issuers within the meaning of Section
15 of the Act or Section 20 of the Exchange Act. No purchaser of Notes from the
Initial Purchasers will be deemed a successor because of such purchase.
19. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY
PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.
20. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement among the Issuers and
the Initial Purchasers.
Very truly yours,
THE DOE RUN RESOURCES
CORPORATION, as Issuer
By: /s/ Marvin K. Kaiser
-----------------------------
Name: Marvin K. Kaiser
Title: VP & CFO
FABRICATED PRODUCTS, INC.,
as Guarantor
By: /s/ Marvin K. Kaiser
-----------------------------
Name: Marvin K. Kaiser
Title: VP & CFO
DOE RUN CAYMAN LTD.,
as Guarantor
By: /s/ Marvin K. Kaiser
-----------------------------
Name: Marvin K. Kaiser
Title: VP & CFO
DOE RUN MINING S.R. LTDA.,
as Guarantor
By:
-----------------------------
Name:
Title:
DOE RUN PERU S.R. LTDA.,
as Guarantor
By:
-----------------------------
Name:
Title:
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement among the Issuers and
the Initial Purchasers.
Very truly yours,
THE DOE RUN RESOURCES
CORPORATION, as Issuer
By:
-----------------------------
Name:
Title:
FABRICATED PRODUCTS, INC.,
as Guarantor
By:
-----------------------------
Name:
Title:
DOE RUN CAYMAN LTD.,
as Guarantor
By:
-----------------------------
Name:
Title:
DOE RUN MINING S.R. LTDA.,
as Guarantor
By: /s/ Kenneth R. Buckley
-----------------------------
Name: Kenneth R. Buckley
Title: General Manager
DOE RUN PERU S.R. LTDA.,
as Guarantor
By: /s/ Kenneth R. Buckley
-----------------------------
Name: Kenneth R. Buckley
Title: President and General Manager
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
BT ALEX. BROWN INCORPORATED
By: /s/ Dalton G. Dwyer
--------------------------
Name: Dalton Dwyer
Title: Managing Director
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:
--------------------------
Name:
Title:
UBS SECURITIES LLC
By:
--------------------------
Name:
Title:
UBS SECURITIES LLC
By:
--------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
BT ALEX. BROWN INCORPORATED
By:
--------------------------
Name:
Title:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ Craig Packer
--------------------------
Name: Craig Packer
Title: Senior Vice President
UBS SECURITIES LLC
By:
--------------------------
Name:
Title:
UBS SECURITIES LLC
By:
--------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
BT ALEX. BROWN INCORPORATED
By:
--------------------------
Name:
Title:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:
--------------------------
Name:
Title:
UBS SECURITIES LLC
By: /s/ Nicholas Daifotis
--------------------------
Name: Nicholas Daifotis
Title: Managing Director
UBS SECURITIES LLC
By: /s/ Jean Smith
--------------------------
Name: Jean Smith
Title: Managing Director
SCHEDULE 1
Principal
Amount of
Initial Purchaser Notes
----------------- ---------
BT Alex. Brown Incorporated................... $
Donaldson, Lufkin & Jenrette Securities
Corporation................................
UBS Securities LLC............................
------------
Total............................... $255,000,000
SCHEDULE 2
Subsidiaries of the Company
Jurisdiction of
Name Organization
---- ------------
Fabricated Products, Inc. Delaware
Doe Run Cayman Ltd. Cayman Islands
Doe Run Mining S.R. Ltda. Peru
Doe Run Peru S.R. Ltda. Peru
DR Exploration (Proprietary) Limited South Africa
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-4’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 5/11/98 | | | | | | | None on these Dates |
| | 3/12/98 | | 2 | | 15 |
| | 3/7/98 | | 31 |
| | 3/6/98 | | 1 | | 2 |
| | 2/13/98 | | 2 |
| | 10/16/97 | | 11 |
| List all Filings |
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