Exhibit 4.3
The Doe Run Resources Corporation
$50,000,000 11 1/4% Senior Secured Notes due 2005
PURCHASE AGREEMENT
August 26, 1998
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
Los Angeles, CA 90025
Ladies and Gentlemen:
The Doe Run Resources Corporation, a New York corporation (the
"Company"), hereby confirms its agreement with ▇▇▇▇▇▇▇▇▇ & Company, Inc. (the
"Initial Purchaser"), 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 Purchaser
$50,000,000 aggregate principal amount of its 11 1/4% Senior Secured Notes due
2005, Series A (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.L., a
Peruvian company ("Doe Run Mining") and Doe Run Peru S.R.L., a Peruvian company
(collectively with its subsidiaries, "Doe Run Peru") (collectively, the
"Guarantors" and, together with the Company, the "Issuers"). The Notes are to be
issued under an indenture (the "Indenture") dated as of September 1, 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 Purchaser 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
final offering circular dated August 26, 1998 (the "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 Purchaser and its 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 (as defined in Section 3 below), (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. The Initial Purchaser and its direct and
indirect transferees of the Notes will also be entitled to the benefits of the
Security Agreement to be dated as of the Closing Date (the "Security Agreement")
pursuant to which the Company has agreed, among other things to grant a first
priority security interest in the property, plant and equipment of ASARCO
Incorporated's ("ASARCO") Missouri Lead Division (the "ASARCO MLD") in
accordance with the terms of the Indenture.
2. Representations and Warranties. Each of the Issuers represent and
warrant to and agree with the Initial Purchaser that:
(a) Neither the Memorandum nor any amendment or supplement thereto as
of the date thereof and at all times subsequent thereto up to the Closing
Date 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 the Initial Purchaser
furnished to the Company in writing by the Initial Purchaser expressly for
use in the 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 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
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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 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 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
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 obligations 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
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the case of the Notes, when delivered to and paid for by the Initial
Purchaser 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 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
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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 Purchaser 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) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Security Agreement.
The Security Agreement has been duly and validly authorized by the Company
and, when executed and delivered by the Company (assuming the due
authorization, execution and delivery by the Trustee), will constitute a
valid and legally binding agreement of the Company, enforceable against the
Company in
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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.
(j) The Company has all requisite corporate power and authority to
perform its obligations under the Asset Purchase and Sale Agreement between
ASARCO and the Company for the Missouri Lead Division and the Sugar Creek
Project dated July 28, 1998 (the "Asset Purchase Agreement"). The Asset
Purchase Agreement has been duly and validly authorized, executed and
delivered by the Company and (assuming the due authorization and execution
by ASARCO) constitutes a valid and legally binding agreement of the Company
and ASARCO enforceable against the Company and ASARCO 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 creditor's rights generally, (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 may be limited by federal, state or foreign securities laws and
public policy consideration.
(k) 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 Purchaser 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 Purchaser. 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
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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.
(l) (A) The execution, delivery and performance by (i) each of the
Issuers of this Agreement, the Indenture and the Registration Rights
Agreement, (ii) the Guarantors of the Guarantees and (iii) the Company of
the Security Agreement and (B) 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
Purchaser) 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 Purchaser 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.
(m) The execution, delivery and performance by the Company of the Asset
Purchase Agreement and the consummation by the Company of the transactions
contemplated thereby has not and 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
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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 Purchaser 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.
(n) The audited consolidated financial statements of the Company and
the Subsidiaries included in the 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 unaudited financial statements and the summary and
selected financial and statistical data in the 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,
PricewaterhouseCoopers LLP and ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ y Asociados S. Civ. ▇.▇., a
member firm of ▇▇▇▇▇▇▇▇ Worldwide SC, (the "Independent Accountants") are
independent public accounting firms within the meaning of the Act and the
rules and regulations promulgated thereunder.
(o) The pro forma financial statements (including the notes thereto)
and the other pro forma financial information included in the 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 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 Memorandum
are reasonable and the adjustments used therein are appro-
8
priate to give effect to the transactions or circumstances referred to
therein.
(p) Except as described in the 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 Memorandum.
(q) 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 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 Memorandum or except where such
revocation or modification would not, individually or in the aggregate, have
a Material Adverse Effect.
(r) Since the date of the most recent financial statements appearing in
the 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
9
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.
(s) 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.
(t) The statistical and market-related data included in the Memorandum
are based on or derived from sources which the Issuers believe to be
reliable and accurate.
(u) 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 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.
(v) 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 Memorandum as being owned by it and good and marketable title to a
leasehold estate in the real and personal property described in the
Memorandum as being leased by it free and clear of all liens, charges,
encumbrances or restrictions, except as described in the Memorandum or to
the extent the
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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 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.
(w) 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 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 Memorandum.
(x) Except as would not, individually or in the aggregate, have a
Material Adverse Effect, or as described in the 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,
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threatened against the Company or any of the Subsidiaries under any
Environmental Law, (D) no lien, charge, encumbrance 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").
(y) 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.
(z) 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.
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(aa) 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 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.
(bb) 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.
(cc) 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.
(dd) The Notes, the Guarantees, the Asset Purchase Agreement, the
Security Agreement, the Indenture and the Registration Rights Agreement will
or do conform in all material respects to the descriptions thereof in the
Memorandum.
(ee) 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.
(ff) 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
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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 Purchaser
in Section 8 hereof, it is not necessary in connection with the offer, sale
and delivery of the Securities to the Initial Purchaser in the manner
contemplated by this Agreement to register any of the Securities under the
Act or to qualify the Indenture under the TIA.
(gg) 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.
(hh) 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.
(ii) None of the Issuers, any of their respective Affiliates or any
person acting on its or their behalf (other than the Initial Purchaser) 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 Purchaser) have complied with the
offering restrictions requirement of Regulation S.
(jj) 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 judgment, attachment in and of judgment, execution or
otherwise) under the laws of Peru or the Cayman Islands.
(kk) Under current Peruvian law and Cayman Islands law and regulations,
there is no tax, duty, levy, impost, deduction, charge or withholding
(including, without limitation,
14
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 Security Agreement, 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 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.
Any certificate signed by any officer of any of the Issuers and
delivered to the Initial Purchaser or to counsel for the Initial Purchaser shall
be deemed a joint and several representation and warranty by each of the Issuers
to the 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 Purchaser, and the Initial Purchaser agrees to purchase
the Notes (and the Guarantees) in the amount set forth on Schedule 1 hereto from
the Company at 86.800% of their principal amount. One or more certificates in
definitive form for the Notes that the Initial Purchaser has agreed to purchase
hereunder, and in such denomination or denominations and registered in such name
or names as the Initial Purchaser requests 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 Purchaser, against payment by or on behalf of the Initial
Purchaser 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
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ at 10:00 A.M., New
York time, on September 1, 1998, or at
15
such other place, time or date as the Initial Purchaser, 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 Purchaser at its offices in New York, New York, or at
such other place as the Initial Purchaser may designate, at least 24 hours prior
to the Closing Date.
4. Offering by the Initial Purchaser. The Initial Purchaser propose to
make an offering of the Notes at the price and upon the terms set forth in the
Memorandum, as soon as practicable after this Agreement is entered into and as
in the judgment of the Initial Purchaser is advisable.
5. Covenants of the Issuers. Each of the Issuers covenants and agrees
with the Initial Purchaser that:
(a) Each of the Issuers will not amend or supplement the Memorandum or
any amendment or supplement thereto of which the Initial Purchaser 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 Purchaser shall not have given its consent. Each of the Issuers will
promptly, upon the reasonable request of the Initial Purchaser or counsel
for the Initial Purchaser, make any amendments or supplements to the
Memorandum that may be necessary in connection with the resale of the Notes
by the Initial Purchaser.
(b) Each of the Issuers will cooperate with the Initial Purchaser 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 Purchaser 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 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 Purchaser of the Notes or the Private Exchange Notes, any event
occurs or information
16
becomes known as a result of which the 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
Memorandum to comply with applicable law, the Issuers will promptly notify
the Initial Purchaser thereof and will prepare, at the expense of the
Issuers, an amendment or supplement to the Memorandum that corrects such
statement or omission or effects such compliance.
(d) The Company will, without charge, provide to the Initial Purchaser
and to counsel for the Initial Purchaser as many copies of the Memorandum or
any amendment or supplement thereto as the Initial Purchaser 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 Memorandum.
(f) In accordance with the terms of the Indenture, the Initial
Purchaser and the Trustee shall have received each of the following
documents which shall be satisfactory in form and substance to the Initial
Purchaser, the Trustee and each of their respective counsel with respect to
the Mortgaged Property (as defined in the Indenture):
A. one or more Mortgages (as defined in the Indenture), duly
executed and acknowledged by the owner or holder of the fee
interest constituting the Mortgaged Property, in form for
recording in the appropriate recording office of the political
subdivision where the Mortgaged Property is situated, together
with such certificates, affidavits, questionnaires or returns as
shall be required in connection with the recording or filing
thereof and such UCC-1 financing statements and other similar
statements as are contemplated in respect of the Mortgage(s) by
the local counsel opinion referred to in subparagraph L. below,
and any other instruments necessary to grant the interests
purported to be granted by the Mortgage(s) under the laws of any
applicable jurisdiction, which Mortgage(s) and financing
statements and other instruments shall
17
be effective to create a lien on the Mortgaged Property in favor
of the Trustee, subject to no liens other than liens permitted to
be outstanding pursuant to the Mortgage or permitted to be pari
passu pursuant to Article 10 of the Indenture;
B. such consents, approvals, amendments, supplements,
estoppels, tenant subordination agreements or other instruments as
shall be necessary in order for the owner or holder of the fee
interest to grant the lien contemplated by the Mortgage with
respect to the Mortgaged Property;
C. with respect to the Mortgage, a policy of title insurance
(or commitment to issue such a policy) insuring (or committing to
insure) the lien of the Mortgage as a valid mortgage lien on the
real property and fixtures described therein with the priority
contemplated in Article 10 of the Indenture in respect of the
Securities in an amount not less than 100% of the fair market
value thereof which policy (or commitment) shall (a) be issued by
a title company reasonably acceptable to the Initial Purchaser,
(b) include such reinsurance arrangements (with provisions for
direct access) as shall be acceptable to the Initial Purchaser,
(c) have been supplemented by such endorsements, or, where such
endorsements are not available at commercially reasonable premium
costs, opinion letters of special counsel, architects or other
professionals, which counsel, architects or other professionals
shall be acceptable to the Initial Purchaser, as shall be
requested by the Initial Purchaser (including, without limitation,
endorsements or opinion letters on matters relating to usury,
first loss, zoning, non-imputation, public road access, contiguity
(where appropriate), cluster, survey, variable rate and so-called
comprehensive coverage over covenants and restrictions) and (d)
contain only such exceptions to title as shall be agreed to by the
Initial Purchaser in accordance with the terms of the Indenture
with respect to the Mortgaged Property;
18
D. a survey of the Mortgaged Property complying with the
minimum detail requirements of the American Land Title Association
(as such requirements are in effect on the date of delivery of
such survey) certified to the Trustee and dated (or redated) not
earlier than six months prior to the date of delivery thereof,
unless there shall have occurred any exterior change in the
property affected thereby during such period, in which event such
survey shall be dated or redated to a date after the completion of
such change, which survey shall locate all improvements, public
streets and recorded easements affecting the Mortgaged Property;
E. policies or certificates of insurance as required by the
Mortgage, which policies or certificates shall bear mortgagee
endorsements of the character required by the Mortgage;
F. UCC, judgment and tax lien searches confirming that the
personal property comprising a part of the Mortgaged Property is
subject to no liens other than Prior Liens (as defined in the
Mortgage);
G. such affidavits, certificates and instruments of
indemnification as shall be required to induce the title company
to issue the policy or policies (or commitment) contemplated in
subparagraph (C) above;
H. checks payable to the appropriate public officials in
payment of all recording costs and transfer taxes (or checks or
wire transfers to the title insurance company in respect of such
amounts) due in respect of the execution, delivery or recording of
the Mortgage, together with a check or wire transfer for the title
insurance company in payment of its premium, search and
examination charges, survey costs and any other amounts due in
connection with the issuance of its policies (or commitments);
I. copies of all Leases (as defined in the Mortgage), all of
which Leases shall be satisfactory to the Initial Purchaser;
19
J. a certificate of an officer of the Company certifying
that, as of the date of delivery of such certificate, there is not
outstanding any citation, violation or similar notice indicating
that such real property contains conditions which are not in
compliance with local codes or ordinances relating to building or
fire safety or structural soundness (other than any provisions of
such codes or ordinances the validity or applicability of which is
being contested in good faith by appropriate proceedings
diligently prosecuted and as to which enforcement proceedings have
not been instituted or, if instituted, have been stayed);
K. a certificate of the Company, 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
Company has performed all covenants and agreements described in
this Section 5(f) and satisfied all conditions on its part to be
performed or satisfied hereunder and (ii) upon the execution of
the Collateral Documents (as defined in the Indenture), and, with
respect to Collateral (as defined in the Indenture), filings under
the UCC in all required jurisdictions and recording of the
Mortgages in the appropriate recording offices, the holders of
Securities will have a valid and perfected lien on the Collateral
with the priority contemplated in Article 10 of the Indenture
subject to no other lien, charge, encumbrance or interest (other
than as permitted by each Collateral Document); and
L. an opinion from local Missouri counsel that shall be
satisfactory to the Initial Purchaser and, among other things,
shall opine that when each of the Mortgages have been duly and
validly authorized by the Company and, when duly executed and
delivered by the Company (assuming the due authorization,
execution and delivery thereof by the other parties thereto), they
will be the legally valid and binding obligations of the Company
enforceable against the Company in accordance with its terms,
except that the
20
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.
M. An opinion (satisfactory to Initial Purchaser and its
counsel) of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ or Missouri counsel to
the Company to the effect that the Company has all requisite
corporate power and authority to execute, deliver and perform its
obligations under the Mortgages for all Mortgaged Property and any
ancillary collateral documents, certificates or agreements to
which it is a party and that each of the Mortgages have been duly
and validly authorized, executed and delivered by the Company.
(g) For so long as any of the Notes remain outstanding, the Issuers
will furnish to the Initial Purchaser 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.
(h) Prior to the Closing Date, each of the Issuers will furnish to the
Initial Purchaser, 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 Memorandum.
(i) 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) which could be integrated with the sale
of the Notes in a manner which would require the registration under the Act
of the Notes.
21
(j) 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.
(k) 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.
(l) 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.
(m) In connection with Notes offered and sold in an offshore
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 (including those
costs and expenses relating to the execution and performance of the Collateral
Documents), 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 Memorandum and any amendment or supplement
thereto, and any "Blue Sky" memoranda, (ii) all arrangements relating to the
delivery to the Initial Purchaser of copies of the foregoing documents, (iii)
the fees and disbursements of United States, Peruvian, Cayman Islands and
Missouri counsel, the accountants and any other experts or advisors retained by
the Issuers, (iv) preparation (including printing), issuance and delivery to the
Initial Purchaser of the Notes,
22
(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
Purchaser 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 and (ix) 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 Purchaser
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 Purchaser of its obligations hereunder after
all conditions hereunder have been satisfied in accordance herewith), the
Issuers agree to promptly reimburse the Initial Purchaser upon demand for all
out-of-pocket expenses (including all reasonable fees, disbursements and charges
of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, United States counsel for the Initial Purchaser)
that shall have been incurred by the Initial Purchaser in connection with the
proposed purchase and sale of the Notes.
7. Conditions of the Initial Purchaser's Obligations. The obligation of
the Initial Purchaser 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 Purchaser shall have received the
opinion, dated as of the Closing Date and addressed to the Initial Purchaser
and Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, of Estudio Ferrero Abogados, special
Peruvian counsel for the Issuers, in form and substance satisfactory to
counsel for the Initial Purchaser 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 described in the Memorandum. Each of Doe Run Mining and
Doe Run Peru is duly qualified to do business as a foreign entity in
good standing in
23
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
and the Guarantees and to consummate the transactions contemplated
hereby and thereby; this Agreement, the Indenture, the Registration
Rights 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 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 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 passage of time or both, would constitute a
24
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
Purchaser) 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 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 Memorandum, and to
25
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 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
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 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
26
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 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 Memorandum under the headings
"Industry," "Business" and "Enforceability of Civil Liabilities,"
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 Purchaser 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 Purchaser and counsel for the Initial
Purchaser, at which conferences the contents of the 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 Memorandum, no facts have come to
its attention which lead it to believe that the 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
Memorandum). The opinions of Estudio Ferrero Abogados described in this Section
shall be rendered to the Initial Purchaser at the request of the Company and
shall so state therein.
References to the 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.
27
(b) On the Closing Date, the Initial Purchaser shall have received the
opinion, dated as of the Closing Date and addressed to the Initial Purchaser
and Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, of ▇▇▇▇▇▇ and ▇▇▇▇▇▇, Special Cayman
Islands counsel for the Company, in form and substance satisfactory to
counsel for the Initial Purchaser 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 Purchaser, 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 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
Purchaser) 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
28
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
Indenture, 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
29
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.
(ix) The statements made in the 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 Purchaser or their counsel
may reasonably request.
References to the 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 Purchaser shall have received the
opinion, dated as of the Closing Date and addressed to the Initial
Purchaser, of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, special New York counsel for
the Company, in form and substance satisfactory to counsel for the Initial
Purchaser 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 ▇▇▇▇▇▇ and ▇▇▇▇▇▇ 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
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
30
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 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 Company has all requisite corporate power and authority
to execute deliver and perform each of its obligations under the
Security Agreement; the Security Agreement has been duly and validly
authorized by the Company and, when duly executed and delivered by the
Company (assuming due authorization, execution and delivery thereof by
the other parties thereto) will be the legally valid and binding
obligation of the Company 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.
31
(iv) 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 Purchaser 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.
(v) 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 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.
(vi) 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
32
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 Purchaser, 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.
(vii) 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.
(viii) The Company has all requisite corporate power and authority
to execute, deliver and perform its obligations under the Asset
Purchase Agreement and to consummate the transactions contemplated
thereby; the Asset Purchase Agreement and the consummation by the
Company of the transactions contemplated
33
thereby have been duly and validly authorized by the Company. The Asset
Purchase Agreement has been duly executed and delivered by the Company
and (assuming the due authorization and execution by ASARCO),
constitutes the valid and legally binding agreement of the Company and
ASARCO, enforceable against the Company and ASARCO 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.
(ix) 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.
(x) The Indenture, the Notes and the Registration Rights Agreement
conform in all material respects to the descriptions thereof contained
in the Memorandum.
(xi) 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 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.
(xii) 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 T, U or X of the
Board of Governors of the Federal Reserve System.
34
(xiii) 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 Purchaser or the validity
or enforceability of the Notes.
(xiv) No registration under the Act of the Securities is required
in connection with the sale of the Securities to the Initial Purchaser
as contemplated by this Agreement and the Memorandum or in connection
with the initial resale of the Securities by the Initial Purchaser 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 Purchaser's 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
Purchaser and the initial resale thereof and the due performance by the
Initial Purchaser of the agreements set forth in Section 8 hereof.
(xv) The statements made in the Memorandum under the headings
"Description of the Notes," "Certain U.S. Federal Income Tax
Considerations," "Notice to Investors," "Exchange Offer; Registration
Rights," and "Plan of Distribution," 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.
(xvi) 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
35
described in all material respects in the Memorandum and proceedings
which such counsel believes are not likely to have a Material 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 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 Purchaser shall have received the
opinion, in form and substance satisfactory to the Initial Purchaser, dated
as of the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial Purchaser, with respect to certain
legal matters relating to this Agreement and such other related matters as
the Initial Purchaser may reasonably require. In rendering such opinion,
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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) The Initial Purchaser 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 Purchaser.
(f) 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
36
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 Memorandum (exclusive of any amendment or
supplement thereto after the date hereof), subsequent to the date of the
most recent financial statements in such 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.
(g) The sale of the Notes hereunder shall not be enjoined (temporarily
or permanently) on the Closing Date.
(h) Subsequent to the date of the most recent financial statements in
the 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.
(i) The Initial Purchaser 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 except for Section 5(f) and agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date
of the most recent financial statements in the Memorandum (exclusive of
any amendment
37
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).
(j) On the Closing Date, the Initial Purchaser shall have received the
Registration Rights Agreement executed by each of the Issuers and such
agreement shall be in full force and effect.
(k) On the Closing Date, the Initial Purchaser shall have received:
(i) The Security Agreement (as defined in the Indenture), duly
executed by the Company and dated on or before the Closing Date,
together with:
A. original executed UCC-1 financing statements or other
documents under the provisions of the UCC or any other applicable
state law to be filed in each office where such filing is
necessary or appropriate to grant to the Trustee a lien of the
character contemplated by the Security Agreement and the priority
contemplated in Article 10 of the Indenture; and
B. evidence that all other actions necessary to perfect and
protect the liens created by the Security Agreement have been
taken.
(l) On the Closing Date, all material conditions to the consummation of
the transactions contemplated by the Asset Purchase Agreement shall have
occurred without waiver and the consummation of the transactions
contemplated by the Asset Purchase Agreement shall occur on the Closing
Date.
On or before the Closing Date, the Initial Purchaser and counsel for
the Initial Purchaser 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.
38
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 Purchaser and counsel for the Initial Purchaser. The Company shall
furnish to the Initial Purchaser such conformed copies of such documents,
opinions, certificates, letters, schedules and instruments in such quantities as
the Initial Purchaser shall reasonably request.
8. Offering of Notes; Restrictions on Transfer. (a) The Initial
Purchaser represents and warrants (as to itself only) that it is a qualified
institutional buyer (as defined in Rule 144A) (a "QIB"). The Initial Purchaser
agrees with the Company 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 Purchaser reasonably believe to be QIBs or, if any such
person is buying for one or more institutional accounts for which such person is
acting as fiduciary or agent, only when such person has represented to the
Initial Purchaser 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,(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)) and (C) a limited number of institutional "accredited
investors" (as defined in Rule 501(a)(1), (2), (3) or (7) under the Act) that
execute and deliver a letter containing certain representations and agreements;
provided, however, that, in the case of each of the foregoing clauses, in
purchasing such Notes such persons are deemed to have represented and agreed as
provided under the caption "Notice to Investors" contained in the Memorandum
(or, if the Memorandum is not in existence, in the most recent preliminary or
final memorandum).
(b) The Initial Purchaser represents and warrants 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
39
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 (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 Purchaser, 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:
40
(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 Purchaser and each such controlling
person for any legal or other expenses incurred by the Initial Purchaser 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 Purchaser furnished to the Issuers by the Initial
Purchaser 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, 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 Purchaser agrees 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
41
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 Purchaser 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 Purchaser may otherwise have to
the indemnified parties. The Initial Purchaser 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 of the Initial Purchaser, 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
Purchaser, in form and substance reasonably satisfactory to the Initial
Purchaser, 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
42
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 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 Purchaser 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
43
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 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 Purchaser agree that it would not
be equitable if the amount of such contribution were determined by pro rata
or per
44
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 Purchaser, 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 Purchaser 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 Purchaser 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 Purchaser 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
45
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 Purchaser, has had or has a Material Adverse
Effect, or there shall have been, in the sole judgment of the Initial
Purchaser, 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
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
Memorandum (without regard to any amendment thereto after the date
hereof) that is material and adverse and that makes it, in the Initial
Purchaser's judgment, impracticable to market the Notes on the terms
and in the manner contemplated in the 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
Purchaser, makes it impracticable or inadvisable
46
to proceed with the offering or the delivery of the Notes as
contemplated by the 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
Purchaser, 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
Purchaser, 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 Purchaser. The statements set
forth in the last paragraph on the front cover page in the third paragraph under
the heading "Plan of Distribution" in the Memorandum (to the extent such
statements relate to the Initial Purchaser) constitute the only information
furnished by the Initial Purchaser 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 Purchaser, shall be mailed or delivered to (i) ▇▇▇▇▇▇▇▇▇ &
Company, Inc., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Ladies and
Gentlemen; if sent to the Issuers, shall be mailed or delivered to the Issuers
c/o The Doe Run Resources Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Chief Executive Officer; with a copy to Cadwalader, ▇▇▇▇▇▇▇▇▇▇
& ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. 10038, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, 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
47
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 Purchaser,
directors, officers, employees or agents of the Initial Purchaser or by each
person, if any, who controls the Initial Purchaser, 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 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
48
Purchaser such additional amounts as shall be required to be paid so
that the net amount received by the Initial Purchaser, after all such deductions
or withholdings, shall not be less than the Initial Purchaser would have
received had no such deductions or withholdings been made or required and shall
promptly deliver to the Initial Purchaser all relevant tax receipts.
17. Currency Indemnity. The obligation of the Company in respect of any
sum due to the Initial Purchaser 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 Purchaser of any sum adjudged to
be so due in such other currency, on which (and only to the extent that) the
Initial Purchaser 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 Purchaser
hereunder, the Company agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify the Initial Purchaser against such loss. If the
United States dollars so purchased are greater than the sum originally due to
the Initial Purchaser hereunder, the Initial Purchaser agrees to pay to the
Company an amount equal the excess of the dollars so purchased over the sum
originally due to the Initial Purchaser hereunder.
18. Successors. This Agreement shall inure to the benefit of and be
binding upon the Initial Purchaser, the Company and their respective successors
and legal representatives, and nothing expressed or mentioned in this Agreement
is intended 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 Purchaser within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act and (ii) the
indemnities of the Initial Purchaser 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 Purchaser 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
49
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.
50
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 Purchaser.
Very truly yours,
THE DOE RUN RESOURCES
CORPORATION, as Issuer
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP and CFO
FABRICATED PRODUCTS, INC.,
as Guarantor
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: CFO
DOE RUN CAYMAN LTD.,
as Guarantor
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP and CFO
DOE RUN MINING S.R.L.,
as Guarantor
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Finance Manager
DOE RUN PERU S.R.L.,
as Guarantor
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Finance Manager
DOE RUN AIR S.A.C.,
as Guarantor
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Attorney in Fact
DOE RUN DEVELOPMENT S.A.C.,
as Guarantor
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Attorney in Fact
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
SCHEDULE 1
Principal
Amount of
Initial Purchaser Notes
----------------- ----------
▇▇▇▇▇▇▇▇▇ & Company, Inc............................................. $50,000,000
------------
Total...................................................... $50,000,000
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.L. Peru
Doe Run Peru S.R.L. Peru
Doe Run Air S.A.C. Peru
Doe Run Development S.A.C. Peru
Doe Run Exploration SA (Proprietary) South Africa
Limited
