Exhibit
10.23.1


 


	
  US$139,062,500.00

  	
  September 12, 2002

  



 


SUBORDINATED
PROMISSORY NOTE


 


For value
received, DOE RUN PERU S.R.L., with. Taxpayer Registration Number 20376303811,
with domicile in Avenida Víctor Audrés Belaunde 147, Via Principal 155, Centro
Empresarial Real, Torre Real Tres, Piso 9, San Isidro, duly represented by
Kenneth Ernest Hecker, identified with Identity Card for Residents Non
Immigrants N-100471, and Anthony Wayne Worcester, identified with Identity Card
for Residents Non Immigrants N-97937, with power of attorney registered
in the Electronic Act N. 11015369 of the Mercantile Companies Book of the Lima
Registry of Legal Entities (the “Borrower”), hereby promises to pay to or to
the order of The Doe Run Resources Corporation, a company organized under the
laws of the State of New York and with offices and domicile at 1801 Park 270
Drive Suite 300, St. Louis, MO 63146 United States of America (the “Holder”) or
at such other location as the Holder shall have designated from time to time in
writing, in lawful money of the United States of America and in immediately
available funds, the principal sum of One hundred thirty-nine million,
sixty-two thousand, five hundred and no/100 U.S. Dollars (U.S.$ 139,062,500.00)
or such lesser principal amount as may then be outstanding hereunder. The
Outstanding Principal Amount shall hear no interest until the Initial Due Date,
as defined below. If the same is not paid on or prior to the Initial Due Date,
such Outstanding Principal Amount shall thereafter bear interest at a floating
rate of interest per annum equal to the sum of (a) the rate (i) as quoted to
the Borrower by Citibank, N.A., New York office or other major New York or
London commercial bank designated by the Borrower front time to time, at which
such hank is offered U.S dollar deposits in. the London Interbank Eurodollar
Market in an amount equal to the principal amount to which such rate shall be
applied, for one week borrowings. or (ii) as obtained by the Borrower from the
display that appears as page “LIBOR” on the Reuters Monitor Money Rates Service
(or such other page as may replace the LIBOR page on that service for the
purpose of displaying London Interbank Offered Rates of major banks) as of
11:00 am. London, England time (“LIBOR”) plus (b) 4%, calculated in arrears on
the basis of a 360-day year for the actual number of days involved and shall be
paid in arrears semi-annually calculated from the Initial Due Date, or upon
payment in full, whichever comes first. Except for such prepayments as are
specifically permitted pursuant to the terms of this Note, the Outstanding
Principal Amount shall be repaid on The Initial Due Date or at any time during
the 359-day period following the Initial Due Date, on demand. The “Initial Due
Date” shall be October 1, 2005 or such later date as extended by application of
the provisions of Section 2(a)(ii).


 


For purposes of
this Note, the term “Outstanding Principal Amount” at any time shall mean the
amount of U.S.$ 139,062,500.00, less the amount of any principal repaid
pursuant to the provisions of this Note.


 


Application of
Payments under this Note is set forth in Section 1. This Note is subordinated
as provided in Section 2. The Outstanding Principal Amount may be reduced
as provided in Section 1. Events of Default are set out in Section 4.
Responsibility for withholding taxes is set out in Section 5. Miscellaneous
provisions are set out in Sections 6, 7 and 8.


 

















 


Presentation,
demand, protest and notice of dishonor are hereby waived by the Borrower.


 


1.             Application of
Payments.  All payments received by
the Holder pursuant to this Note shall be applied in the following manner:


 


(a)                                  firstly,
if an Event of Default, as defined in Section 4, has occurred, to all costs and
expenses of the Holder or its agents, including legal fees and disbursements,
arising as a result thereof;


 


(b)                                 secondly,
to current interest accrued on any amount being paid; and


 


(c)                                  thirdly,
to reduce the Outstanding Principal Amount.


 


2.             Subordination.


 


(a)                                  The
Borrower agrees, and the Holder by accepting this Note agrees, that the
indebtedness evidenced by this Note:


 


(i)                  is
expressly subordinated and subject in right of payment as to all amounts
payable hereunder to the prior payment in full of all Senior Debt, except to
the extent and in the manner set forth in this Section 2;


 


(ii)               that
in case of renewal or extension of the Senior Debt, the interest-free term of
this Note shall be automatically extended for the same period as such renewal
or extension;


 


(iii)            that
the subordination set out in this Section 2 is for the benefit of the holders
of the Senior Debt; and


 


(iv)           so long
as any Senior Debt is outstanding, no payment of principal or interest under
this Note shall be made except from Cash Flows Available for Distribution, as
the same is defined in the Senior Debt.


 


(b)                                 The
Holder agrees that it will not ask, demand, sue for, take, receive or retain
from the Borrower, by set-off or in any other manner, payment of all or any
part of the Outstanding Principal Amount., any interest, or any other amount
payable in respect of this Note, other than payments made at the times, in the
amounts and to the extent permitted under the provisions hereof, unless and
until all of the Senior Debt has been paid in full or unless the holders of
Senior Debt provide written consent to such payment or unless such payment is
made from Cash Flows Available for Distribution as provided above. The Holder
directs the Borrower to make, and the Borrower agrees to make, such prior
payment of the Senior Debt in priority to any payments due hereunder. The
Holder will not request or accept any security from the Borrower in respect of
the obligations of the Borrower under this Note unless the holders of the
Senior Debt provide written Consent to such security. The Holder unconditionally
waives notice of the incurring of Senior Debt or any part thereof.


 


2

















 


(c)                                  For
purposes of this Note, the term “Senior Debt” shall mean the principal of and
interest on, and other payments arising under (including any interest accruing
after the filing of a petition in bankruptcy or the commencement of any
insolvency or bankruptcy proceedings with respect to the Borrower), and all
commissions, fees, indemnities, premiums and other amounts payable in respect
of, any amounts now or hereafter owing by the Borrower under that certain
Working Capital Facility between the Borrower and Banco de Credito del Peru
(‘BCP”) and its successors and assigns, together with any extension,
modification or renewal of the same.


 


(d)                                 In
the event of:


 


(i)                                     any
insolvency or bankruptcy case or proceedings, or any receivership, liquidation,
reorganization, moratorium or other similar case or proceeding in connection
therewith, relative to the Borrower, or to its assets;


 


(ii)                                  any
liquidation, dissolution or other winding up of the Borrower. whether partial
or complete and whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy; or


 


(iii)                               any
general assignment by the Borrower for the benefit of its creditors or any
other general marshalling of assets and liabilities of the Borrower,


 


then and in any
such event the holders of Senior Debt, shall be entitled to receive payment in
full of all amounts due or to become due on or in respect of all Senior Debt
before the Holder of this Note shall be entitled to receive any payment of any
kind or character on account of this Note, whether in cash, property or
securities.


 


(e)                                  In
the event and during the continuation of any default in the payment when due of
any amount payable in respect of any Senior Debt, or in the event that any
event of default under any Senior Debt (or any event or condition that, with
the giving of notice or lapse of time, or both, would constitute an event of
default under any Senior Debt) shall have occurred and be continuing, unless
and until payment in full of the Senior Debt shall have been made or such event
of default under any Senior Debt (or any event or condition that, with the
giving of notice or lapse of time, or both, would constitute an event of
default under any Senior Debt) shall not be continuing, as the case may be,
then no payment shall be made by the Borrower on or in respect of this Note.


 


(f)                                    Whether
or not any default in payment shall exist under any Senior Debt or any event of
default under any Senior Debt (or any event or condition that, with the giving
of notice or lapse of time, or both, would constitute an event of default under
any Senior Debt) shall have occurred, the Holder shall not, without the prior
written consent of the holders of the outstanding Senior Debt, take any
collateral security for this Note.


 


(g)                                 No
failure on the part of the holders of Senior Debt, and no delay in exercising
any right, remedy or power hereunder shall operate as a waiver thereof by the


 


3

















 


holders of Senior
Debt, nor shall any single or partial exercise by the holders of Senior Debt of
any right, remedy or power hereunder preclude any other or future exercise of
any other right, remedy or power. Each and every right, remedy and power hereby
granted to the holders of Senior Debt, or allowed to the holders of Senior Debt
by law or other agreement shall be cumulative and not exclusive the one of the
other.


 


(h)                                 Without
in any way limiting the generality of the foregoing Subsection, the holders of
Senior Debt may, at any time and from time to time, without the consent of or
notice to the Holder, without incurring responsibility to the Holder, and
without impairing or releasing the subordination provided herein or the
obligations hereunder of the Holder, do any one or more of the following:


 


(i)                                     change
the manner, place or terms of payment of or extend the time of payment of, or
increase, renew or alter, the Senior Debt, or otherwise amend or supplement in
any manner the Senior Debt or any instrument evidencing the same or any
agreement under which Senior Debt is outstanding;


 


(ii)                                  sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing any Senior Debt:


 


(iii)                               release
any person liable in any manner for the Senior Debt; and


 


(iv)                              exercise
or refrain from exercising any rights against the Borrower and any other
person.


 


(i)                                     Upon
payment in full of all Senior Debt, the Holder shall be subrogated to the
rights of the holders of Senior Debt to receive any distribution of remaining
assets of the Borrower, or payments by or on behalf of the Borrower, made on
the Senior Debt, until this Note shall be paid in full.


 


(j)                                     These
subordination provisions are intended solely to define the relative rights of
the Holder and its successors and assigns on the one hand and the holders of
Senior Debt and their respective successors and assigns on the other hand.


 


3.             Endorsement of
Annex.  The Holder shall endorse on
Annex A attached hereto all payments of Outstanding Principal Amount. Such
endorsements shall be presumptive evidence as to the Outstanding Principal
Amount from time to time, but the failure to make such endorsements shall not
affect the obligations of the Borrower hereunder.


 


4.             Events of Default
and Remedies.


 


(a)                                  Each
of the following events shall be an “Event of Default”:


 


(i)                                     if
default occurs in the payment of the Outstanding Principal Amount or on
interest or any other amount on this Note when due and payable, and


 


4

















 


such default
continues for a period of five Banking Days, whether or not the Holder gives
notice of such default;


 


(ii)                                  if
the Borrower commences a proceeding under the Bankruptcy Law of Peru, as now or
hereafter amended (which as of the date of this Note is referred to as “Texto
Unico Ordinado de la Ley de Reestructuración Patrimonial”) or under any other
insolvency or similar law (whether now or hereafter in effect) of any jurisdiction
relating to the Borrower, or there is commenced against the Borrower any such
proceeding which remains undismissed for the period of time permitted for
denial under the applicable law, if any, or if the Borrower is adjudged
bankrupt or insolvent: or


 


(iii)                               the
Borrower resolves to dissolve or is dissolved or makes a general assignment for
the benefit of creditors, or any action is taken by the Borrower for the
purpose of effecting any of the foregoing (other than a merger or consolidation
as permitted under the terms of the Senior Debt); or


 


(iv)                              a
receiver or trustee or other officer or representative of a court or of
creditors, or any court or governmental agency, shall under color of legal
authority take and hold possession of any substantial part of the property or
assets of the Borrower for a period in excess of 180 days; or


 


(v)                                 an
event of default occurs pursuant to the Senior Debt (but in all cases, any
payment of this Note shall be subject to the subordination in favor of such
Senior Debt as set out in Section 2).


 


(b)                                 If
any Event of Default occurs and is continuing, then the Holder may declare the
principal amount of the Note to be due and payable immediately, by written
notice to the Borrower, and upon any such declaration, such Outstanding
Principal Amount shall become immediately due and payable as specified in the
first paragraph of this Note, all of the foregoing subject always to the
subordination set out in Section 2. At any time after such a declaration of
acceleration has been made and before a judgment or decree for payment of the
money due has been obtained the Holder may, by written notice to the Borrower,
rescind and annul such declaration and its consequences. No such rescission
shall affect any subsequent default or impair any right consequent thereon.


 


(c)                                  The
Borrower covenants that if the Holder declares that repayment of the
Outstanding Principal Amount is accelerated, the Borrower will, upon demand of
the Holder, but subject to Section 2, pay to the Holder the whole amount then
due and payable on this Note, and henceforth interest shall accrue not only on
the Outstanding Principal Amount but, to the extent that payment of such
interest shall be legally enforceable, also upon any overdue installments of
interest, at the rate of interest set out in this Note. The Borrower further
covenants and agrees to pay, upon any Event of Default and in addition to the
foregoing, such further 


 


5

















 


amounts as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Folder,
its agents and counsel.


 


(d)                                 The
Holder may waive any past default hereunder and its consequences, and, upon any
such waiver, such default shall be deemed not to have occurred, and any Event
of Default arising therefrom shall be deemed to have been cured for every
purpose of this Note, but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.


 


5.                                       Withholding
Taxes.  The Outstanding Principal
Amount and any interest on this Note shall be payable without deduction or
withholding for or on account of any present or future taxes, duties, fees or
other charges levied or imposed on this Note or the Holder by the Republic of
Peru or any political subdivision or taxing authority thereof or therein. If
the Borrower is required by law to make any such deduction or withholding, it
will pay such additional amounts as may be necessary so that the net payment of
the Outstanding Principal Amount to the Holder and every net payment of
interest on this Note paid to the Holder will not be less than the amount
provided for herein to be then due and payable, provided that if the Holder is
otherwise liable to taxation in the Republic of Peru by reason of any
relationship with or activity within the Republic of Peru other than its
ownership of this Note, and the Borrower is required to withhold or deduct
taxes solely by reason of such relationship or activity, the Borrower shall not
be obliged to pay to the Holder additional amounts equal to the withheld
amounts. To the extent that the Holder receives any reimbursement or other
amount on account of taxes remitted on the Holder’s behalf by the Borrower such
that the Holder makes double recovery, such reimbursement or other amount shall
be applied by the Holder to the repayment of monies owning under this Note.


 


6.                                       Binding
Effect; Assignments.  This Note
shall be binding upon the successors and assigns of the Borrower and shall
inure to the benefit of the successors and assigns of the Holder.


 


7.                                       Certain
Definitions.  For the purposes of
this Note, the term ‘Banking Day” shall mean any day on which banks are
generally open for business in both New York, New York, United States of
America, and Lima, Peru. As used in this Note, the terms “Borrower” and
“Holder” shall be deemed to include their respective successors and assigns


 


6

















 


8.                                       Governing
Law.  This Note and the rights and
obligations of the parties hereunder shall be governed by and construed in
accordance with the laws of the State of New York, U.S.A., other than
principles of conflicts of law, and the Borrower hereby undertakes and agrees
that this Note may be enforced in any state or federal district court in the
Borough of Manhattan.  With respect to
this Note and the enforcement thereof, the Borrower irrevocably submits to the
non-exclusive jurisdiction of the state and/or federal district courts of the
Borough of Manhattan and irrevocably waives any objection which it may have now
or hereafter to such jurisdiction and agrees not to claim that any such court
is not a convenient or appropriate forum.


 


	
   

  	
  DOE RUN PERU
  S.R.L.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kenneth
  Ernest Hecker

  
	
   

  	
   

  	
  Kenneth Ernest
  Hecker

  
	
   

  	
   

  	
  Date: September
  12, 2002

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Anthony
  Wayne Worcester

  
	
   

  	
   

  	
  Anthony Wayne
  Worcester

  
	
   

  	
   

  	
  Date: September
  12, 2002

  



 


7

















 


ANNEX
ONE


 


OUTSTANDING
PRINCIPAL


 


	
  Payment Date:

  	
   

  	
  Principal Payment 

  Amount

  	
   

  	
  Remaining Principal 

  Amount

  	
   

  	
  Notes: