Exhibit 10.18
CREDIT AGREEMENT
CREDIT AGREEMENT made this 27th day of March, 2002, between
IIG CAPITAL LLC, a limited liability company organized and existing under the
laws of New York, with offices at 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX
00000 as agent for The IIG Trade Opportunities Fund N.V. and the Venezuela
Recovery Fund N.V. (the "Lender"), and HECLA MINING COMPANY, a corporation
organized and existing under the laws of Idaho, with offices at 0000 Xxxxxxx
Xxxxx, Xxxxx x'Xxxxx, Xxxxx 00000-0000 (the "Borrower").
WITNESSETH:
WHEREAS, the Borrower is a party to a Restated Mining Venture
Agreement dated as of May 6, 1994 (as the same may be amended, supplemented or
otherwise modified from time to time, the "Joint Venture Agreement") pursuant to
which the Borrower currently holds a 29.7331 % ownership interest (the "JV
Interest") in and to a joint venture known as the "Green's Creek Joint Venture "
(the "Joint Venture"), including all income generated by or allocable to the JV
Interest;
WHEREAS, the Borrower has requested that the Lender make available to
it a credit facility in an amount up to the lesser of (i) 70% of an amount equal
to (A) all cash distributions forecast by Borrower from the JV Interest over a
twenty-four (24) month period commencing the date hereof, less (B) the Facility
Fees and any other fees payable by Borrower to Lender under any agreement
between them; or (ii) a maximum of seven million five hundred thousand dollars
U.S. ($7,500,000), secured by a pledge of its JV Interest; and
WHEREAS, the Lender is prepared to provide such credit facility upon
all of the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, receipt whereof is hereby acknowledged, the parties
hereto agree as follows:
SECTION 1. DEFINITIONS.
As used herein, the following terms shall have the following meanings
(all terms defined in this Section 1 or in other provisions of this Agreement in
the singular to have the same meanings when used in the plural and vice versa):
"Bankruptcy Code" shall mean the Federal Bankruptcy Code of
1978, as amended from time to time.
"Borrower's Account" shall mean Borrower's wire transfer
account at:
Bank Name: Idaho Independent Bank
ABA#: 000000000
Account #: 0200030021
Account Name: Hecla Mining Company
or such other account as may be designated in writing to Lender.
"Business Day" shall mean a day other than a Saturday, Sunday
or other day on which commercial banks in New York City, New York; Curacao,
Netherlands Antilles; and Coeur d'Alene, Idaho, United States of America are
authorized or required by law to close.
"Commencement Date" shall mean the date of first disbursement
of the Loan under Section 2.3. hereof.
"Credit Facility" shall have the meaning given to that term in
Section 2.1 hereof.
"Default" shall mean any Event of Default and any event which
with notice or lapse of time or both would become such an Event of Default.
"Default Interest Rate" shall mean an interest rate per annum
equal to the Interest Rate plus three per cent (3%).
"Deposit Account" shall have the meaning giving to that term
in Section 5.2 hereof.
"Dollars" and "$" shall mean lawful money of the United States
of America.
"Event of Default" shall have the meaning given to that term
in Section 10 hereof.
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"Facility Fee" shall have the meaning assigned to that term in
Section 2.5 hereof.
"Final Maturity Date" shall mean the last date upon which any
amount of Principal or Interest is payable hereunder pursuant to the Payment
Schedule, unless the Loan is earlier repaid in accordance herewith.
"Interest Period" shall mean, from and after the Commencement
Date, each and every successive period of one (1) month each with the first
Interest Period commencing on and including the Commencement Date and the last
Interest Period terminating on the Final Maturity Date.
"Interest Payment Date" shall mean the last Business Day of
each Interest Period ending after the Commencement Date.
"Interest Rate" shall mean an interest rate per annum equal to
nine PER CENT (9%);
"Joint Venture Agreement" shall mean that certain Restated
Mining Venture Agreement dated as of May 6, 1994 entered into by and among the
Borrower and KENNECOTT GREENS CREEK MINING COMPANY and CSX ALASKA MINING COMPANY
(collectively the "JV Parties") for the exploration and exploitation of mineral
rights in the Juneau Recording District, Alaska, and more particularly
identified in the Joint Venture Agreement. A copy of the Joint Venture Agreement
is attached to this Agreement as Exhibit A.
"JV Interest" shall mean all of Borrower's right, title and
interest in and to the Joint Venture Agreement as defined in Section 1.38
thereof.
"Lien" shall mean any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind.
"Loan" shall mean the loan provided for in Section 2.1 hereof.
"Material Adverse Effect" shall mean a material adverse effect
on (a) the property, assets, business, operations, or financial condition of the
Borrower taken as a whole, or (b) the ability of the Borrower to perform its
obligations under any of the Transaction Documents to which it is a party.
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"Note" shall mean that Promissory Note or Notes identified in
Section 2.4 in the form attached hereto as Exhibit B hereto and to be executed
simultaneously with, and as a condition to, any draw down of Principal
hereunder.
"Payment Schedule" shall mean the schedule set forth in
Exhibit C hereto for payment of Principal and Interest on the Loan.
"Person" shall mean an individual, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization or a government
or any department or agency thereof.
"Pledge" shall mean, with respect to any Pledged Assets, the
Borrower executing and delivering to the Lender a Security Agreement with
respect to such Pledged Assets. The terms "Pledging" and "Pledged" shall have a
correlative meaning.
"Pledged Assets" shall mean the JV Interest and Borrower's
right to cash distributions therefrom .
"Principal Amount" shall mean the principal amount of the Loan
outstanding from time to time.
"Principal Payment Date" shall mean the last Business Day of
each Interest Period ending after the Commencement Date.
"Security Agreement" shall mean that certain Security
Agreement among the Lender and the Borrower, substantially in the form of
Exhibit D hereto, as the same may be modified and supplemented and in effect
from time to time.
"Security Documents" shall mean, collectively, the Security
Agreement and any UCC financing statements required to be filed thereunder.
"Transaction Documents" shall mean this Agreement, the Note,
the Joint Venture Agreement, the Security Agreement and the Security Documents.
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"UCC" shall mean the Uniform Commercial Code as in effect in
the State of New York, the State of Alaska or the State of Idaho from time to
time (and, unless otherwise defined herein or the context otherwise requires,
terms defined in the UCC shall have their respective defined meanings when used
herein).
SECTION 2. CREDIT FACILITY; BORROWING; PROMISSORY NOTE; FACILITY FEE.
2.1 Credit Facility.
The Lender agrees, on the terms of this Agreement, to make the
Loan in one or more installments to the Borrower during the period commencing on
the Commencement Date and continuing to, but not including, the Final Maturity
Date in an aggregate principal amount at any one time outstanding (the "Credit
Facility") of up to, but not exceeding, the lesser of: (i) 70% of an amount
equal to (A) all cash distributions to Borrower forecast by Borrower from the JV
Interest over a twenty-four (24) month period commencing the date hereof, less
(B) the Facility Fees and any other fees payable by Borrower to Lender under any
agreement; or (ii) a maximum of seven million five hundred thousand dollars U.S.
($7,500,000). Borrower may draw down the Loan in one or more installments during
the term hereof, subject to the following:
1. Any draw down which is made on or before the first anniversary of this
Agreement shall be repaid on or before the second anniversary of this
Agreement.
2. Any draw down made after the first anniversary of this Agreement must
be repaid within twelve (12) months of draw down.
2.2 Use of Proceeds.
The Borrower shall be permitted to use the proceeds of the
Loan for any business purposes.
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2.3 Borrowing.
(a) The Borrower shall give the Lender notice of the borrowing. Notice
of borrowing by the Borrower shall be irrevocable and shall be effective only if
received by the Lender not later than 10:00 a.m. New York time at least ten (10)
Business Days prior to the date of the borrowing; provided, that Borrower agrees
to use its best efforts to deliver to Lender each notice of borrowing earlier
than ten (10) Business Days, if commercially reasonable, and Lender agrees to
use its best efforts to make funds available to Borrower in less than ten (10)
Business Days, if commercially reasonable. Such notice shall include the date of
borrowing (which must be a Business Day), the amount of the borrowing, and the
bank account information for disbursement of the Loan. Not later than 11:00 a.m.
New York time on the date specified for the borrowing hereunder, the Lender
shall make available the amount of the Loan by depositing the same, in
immediately available funds, in the bank account designated in the notice.
(b) The obligation of the Lender to make the Loan under the Credit
Facility is subject to the prior condition that there shall have been delivered
to the Lender in form and substance satisfactory to the Lender and the Lender's
counsel:
(i) a duly executed Note in an amount equal to the principal amount of
the draw down in question;
(ii) a duly executed original of the Security Agreement;
(iii) a certificate of either the President, Chief Executive Officer,
Vice President or Chief Financial Officer of the Borrower which: (A) provides a
copy of the organizational documents of the Borrower and of the resolutions or
other corporate documents of the Borrower authorizing the execution of the
Transaction Documents and certifying the authority of the persons executing the
same, certified by such officer to be true and correct and in full force and
effect; and (B) certifies that the representations and warranties of the
Borrower in this Agreement are true and correct, there has not been any Material
Adverse Effect, no Default exists, the Joint Venture Agreement is in full force
and effect and Borrower is not in default under the Joint Venture Agreement or
any event which with notice or lapse of time or both would become a default
under such contract; and
(iv) a copy of notice to the Joint Venture and the Joint Venture's
acceptance of the assignment to Lender of Borrower's cash distributions to which
it is entitled pursuant to the Joint Venture Interest.
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2.4 Promissory Note.
Each draw down on the Loan shall be evidenced by a promissory note of
the Borrower, substantially in the form of Exhibit B hereto (the "Note"), to be
dated as of the date of the draw down, payable to the Lender in a principal
amount equal to the amount borrowed in accordance with section 2.1 and section 3
hereof. Lender shall return the original Note to Borrower within ten (10)
Business Days of payment in full.
2.5 Facility Fee.
The Borrower agrees to pay to the Lender, (i) on the date hereof and on
the first anniversary hereof, a Facility Fee equal to a flat one and one-half
percent (1.5%) of $7.5 Million (or $112,500.00). The Borrower hereby authorizes
the Lender to withhold and retain such fees, as well as any other fees Borrower
may owe Lender under any other agreements between them, from the amount of the
Loan disbursed hereunder.
SECTION 3. PAYMENTS OF PRINCIPAL AND INTEREST.
3.1 Principal.
The Borrower hereby promises to pay to the Lender on the Final Maturity
Date the full principal amount of the Loan, less any amounts applied by the
Lender to principal in accordance with Section 4.1 hereof, and/or amounts
otherwise prepaid by the Borrower in accordance with Section 4.2 hereof.
3.2 Interest.
(a) The Borrower hereby promises to pay to the Lender interest on the
unpaid Principal Amount for the period from and including the date of the Loan
to but excluding the date the Loan shall be paid in full, at the Interest Rate.
(b) Notwithstanding the foregoing, the Borrower shall pay to the Lender
interest at the Default Interest Rate on any principal of the Loan, and on any
other amount payable by the Borrower hereunder or under the Note, which has not
been paid in full when due (whether at stated maturity, by acceleration or
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otherwise), for the period from and including the due date thereof to but
excluding the date the same is paid in full (both before and after judgment),
whether or not any notice of default in the payment thereof has been delivered.
(c) Accrued Interest on the unpaid Principal Amount (as hereinafter
defined) shall be payable on each Interest Payment Date, except that interest
which is payable at the Default Rate shall be payable from time to time on
demand.
(d) Interest shall be computed on the basis of a year of 360 days and
actual days elapsed (including the first day, but excluding the last day)
occurring in each Interest Period.
(e) Any determination made by the Lender as to the Interest Rate,
Default Interest Rate and the amounts of interest, principal and other amounts
due hereunder shall be conclusive in the absence of manifest error.
SECTION 4. INSTALLMENT PAYMENTS; PRE-PAYMENTS.
4.1 Installment Payments.
(a) The Principal Amount, together with interest thereon (as specified
above), shall be paid by the Borrower in accordance with the Payment Schedule
(each such payment, an "Installment"). All payments under this Agreement or
under the Note shall be payable on the date when due without presentment,
demand, protest or notice of any kind, all of which are hereby expressly waived.
Such payments shall be made to the Deposit Account (as hereinafter defined), in
Dollars and in immediately available funds, without setoff, recoupment,
counterclaim or any other deduction of any nature, including, but not limited
to, any claim against the Joint Venture or any JV Party.
4.2 Pre-payments.
The Borrower may prepay without premium or penalty any unpaid balance
of the Loan, together with any accrued interest thereon to the date of such
prepayment if (i) the date of prepayment is a Principal Payment Date or the last
Business Day of an Interest Period, and (ii) the Borrower provided written
notice to the Lender of such prepayment not less than ten (10)
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prior to the date of prepayment. Upon receipt of such notice by the Lender, such
prepayment shall be irrevocable and binding on the Borrower.
SECTION 5. SECURITY INTEREST, PLEDGE OF PLEDGED ASSETS AND DEPOSIT ACCOUNT.
5.1 Security Interest and Pledge of Pledged Assets.
As an inducement to the Lender to enter into this Agreement and in
order to secure the due and punctual payment by the Borrower of all amounts
owing by the Borrower under this Agreement, the Note(s) and the due and punctual
performance by the Borrower of the Borrower's other obligations hereunder or
under any other agreement between Borrower and Lender, the Borrower shall grant
to the Lender a first lien and security interest over the Pledged Assets in form
and substance acceptable to the Lender. The Borrower shall take, or cause to be
taken, such acts as the Lender may reasonably require to perfect the security
interest granted herein including, but not limited to providing notice to any JV
Party under the Joint Venture Agreement and instructing the Joint Venture itself
to make any and all cash distributions due Borrower with respect to the JV
Interest into the Deposit Account.
5.2 Deposit Account.
Pursuant to the Security Agreement, an account shall be established at
Citibank N.A., ABA Number 000000000, entitled "IIG Capital/Greenscreek" (Account
# Number 00000000) (the "Deposit Account") for the cash distributions from the
JV Interest to be paid to Lender.
SECTION 6. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Lender as follows:
(a) The Borrower is a corporation, duly organized, validly existing and
in good standing, under the laws of Idaho and has the power to own its property
and to carry on its business in each jurisdiction in which it operates;
(b) The Borrower has full power and authority to enter into this
Agreement, the Note and the Security Documents, all of which have been duly
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authorized by all proper and necessary action. No authorizations, consents or
approvals by any stockholder or public or governmental regulatory authority or
agency is required as a condition to the validity of this Agreement, the Note
and the Security Documents (or if required, has been obtained), and the Borrower
is in compliance with all laws and regulatory requirements to which it is
subject;
(c) This Agreement, the Note and the Security Documents constitute
valid and legally binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms;
(d) Other than a case styled United States vs. ASARCO et al., No. CV
94-0206-N-HLR, there are no proceedings pending or, to the knowledge of the
Borrower, threatened before any court, or tribunal or other administrative
agency, nor to the knowledge of the Borrower any circumstances or conditions
that might give rise to any such proceedings, which will or may have a Material
Adverse Effect on the financial condition or operations of the Borrower, any of
its properties or any subsidiary thereof or on the Borrower's performance of the
Transaction Documents;
(e) There are no charter, by-law or stock provisions of, no provisions
of any existing agreement, mortgage or contract binding on, the Borrower or
affecting its property, nor any order, writ, injunction or decree of any court
or governmental authority or agency, which would conflict with or in any way
prevent the execution, delivery or performance of the terms of this Agreement,
the Note and the Security Documents; provided, that Lender understands and
accepts that any exercise of its rights under the Security Documents is subject
to the terms of the Joint Venture Agreement;
(f) The Security Documents, when executed and delivered, shall create,
a legal, valid and enforceable security interest in all of the Pledged Assets,
and when the recordings and filings described therein, if any, have been
effected and properly indexed in the public offices listed therein, each of the
Security Documents will create a perfected, first priority lien on all right,
title, estate and interest of the Lender in the Pledged Assets. The recordings
and filings described in such Security Documents are all the actions necessary
or advisable in order to establish, protect and perfect such interest of the
Lender in the Pledged Assets;
(g) The Joint Venture Agreement constitutes, and each receivable with
respect to the JV Interest, upon becoming due and owing under the terms of the
Joint Venture Agreement, will constitute, the legal, valid and binding
obligation of the Joint Venture or the JV Parties, respectively, each
enforceable against the Joint Venture or such JV Party, respectively, in
accordance with its terms;
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(h) The Borrower has delivered to the Lender a true and complete copy
of the Joint Venture Agreement as in effect. The Joint Venture Agreement in the
form so delivered has not been terminated, rescinded or modified and is in full
force and effect. The Borrower has not received nor issued any notice of
termination, default, rescission or material modification with respect to the
Joint Venture Agreement, and the Borrower has no knowledge of any existing
circumstance or events which would, with the passage of time or the giving of
notice or both, result in a termination, default, rescission or material
modification of the Joint Venture Agreement.
(i) No action other than the execution and delivery of this Agreement,
the Security Agreement and the Consents is necessary to Pledge the Pledged
Assets, including, but not limited to, any other recording, filing,
registration, giving of notice or other similar action. Upon execution and
delivery to Lender of the Consents and the giving of notice to the JV Parties of
the Pledge of the Pledged Assets, the Pledge of the Pledged Assets shall be duly
perfected for purposes of the UCC and the rights of the Lender in such Pledged
Assets will be subject to the Joint Venture Agreement but prior to the rights of
all other Persons;
(j) None of the Pledged Assets has been subordinated, compromised,
reduced or rescinded in whole or in part;
(k) Except as stated in the Joint Venture Agreement, there is no
present ability to exercise any right of rescission, setoff, counterclaim or
defense has been asserted and no facts exist which give rise to a contractual or
other basis therefor with respect to the Pledged Assets, and the Borrower has no
obligation to pay any amount to the JV Parties, and the Borrower does not know
of any claim (or any basis for any claim) which any JV Party has against the
Borrower arising under the terms of the Joint Venture Agreement;
(l) There are no past due Pledged Assets outstanding under the Joint
Venture Agreement on the date hereof;
(m) Except as provided in the Joint Venture Agreement, neither the
Pledged Assets nor any part thereof has been sold, transferred, assigned or
pledged by the Borrower to any Person other than to the Lender. Immediately
prior to the execution and delivery of this Agreement and upon any draw down of
Principal hereunder, the Borrower will be the sole owner of the Pledged Assets,
free of any Lien, and upon execution and delivery of this Agreement by the
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Borrower, and the taking of all other action contemplated hereby, the Lender
will receive a Pledge of all of the right, title and interest of the Borrower in
and to the Pledged Assets, free and clear of any Lien.
SECTION 7. AFFIRMATIVE COVENANTS.
Commencing from the date hereof and until payment in full of the
Principal Amount and interest thereon and performance of all other obligations
of the Borrower hereunder, the Borrower shall:
(a) upon request of the Lender, deliver to the Lender as soon as
available and in any event within sixty (60) days after the end of each of the
first three fiscal quarterly periods of each fiscal year of the Borrower,
statements of income, retained earnings and changes in financial position (or of
cash flow, as the case may be) of the Borrower for such period and for the
period from the beginning of the respective fiscal year to the end of such
period, and the related balance sheets as at the end of such period, setting
forth in each case in comparative form the corresponding figures for the
corresponding period in the preceding fiscal year in accordance with generally
accepted accounting principles, consistently applied, as at the end of, and for,
such period (subject to normal year-end audit adjustments);
(b) deliver to the Lender within thirty (30) days after the annual
meeting of the shareholders of the Borrower and in any event within one hundred
fifty (150) days of the close of each fiscal year of the Borrower, statements of
income, retained earnings and changes in financial position (or of cash flow, as
the case may be) of the Borrower for such year and the related balance sheets as
at the end of such year, setting forth in each case in comparative form the
corresponding figures for the preceding fiscal year, and accompanied by an
opinion thereon of independent certified public accountants of recognized
international standing, which opinion shall state that said financial statements
fairly present the financial condition and results of operations of the Borrower
as at the end of, and for, such fiscal year;
(c) provide promptly after the Borrower knows or has reason to believe
that any Event of Default has occurred, a notice of such Event of Default
describing the same in reasonable detail and, together with such notice or as
soon thereafter as possible, a description of the action that the Borrower has
taken and proposes to take with respect thereto;
(d) promptly give to the Lender notice of all legal or arbitral
proceedings, and of all proceedings by or before any governmental or regulatory
authority or agency relating to the Joint Venture, and any material development
in respect of such legal or other proceedings which could, in Borrower's
reasonable judgment, have a Material Adverse Effect;
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(e) keep insured by financially sound and reputable insurers the
Pledged Assets and maintain its property and business insured in substantially
the same manner as currently insured;
(f) as appropriate, maintain its existence in good standing and comply
with all laws, regulations and governmental requirements applicable to it or to
any of its property, business operations and transactions; provided, that no
Default or Event of Default shall be deemed to exist unless and until a breach
of Borrower's obligations under this Section 7(f) has a Material Adverse Effect;
(g) promptly advise the Lender in writing of any condition, event or
act which comes to its attention that would or may, in Borrower's reasonable
judgment, have a Material Adverse Effect;
(h) upon the reasonable request of the Lender from time to time,
forthwith (but in no event more than twenty (20) Business Days after such
request) perform and continue from time to time to perform all actions necessary
or deemed necessary or advisable by the Lender to create, preserve, perfect and
maintain the priority of or enforce the Pledge created by the Security
Documents, including without limitation, obtaining such consents of third
parties as the Lender may request; and
(i) provide Lender with a copy of monthly financial reports distributed
by the JV and keep Lender informed promptly regarding any events other than
variation in commodity prices that in its reasonable judgment will or may cause
a downturn in projected cash flow from the JV, over the term of the facility, of
10% or more.
SECTION 8. NEGATIVE COVENANTS.
Until payment in full of the Principal Amount and interest thereon and
performance of all other obligations of the Borrower hereunder, the Borrower
shall not, without the prior written consent of the Lender:
(a) enter into any merger or consolidation, or sell, lease, assign or
otherwise dispose of or transfer substantially all of its assets unless (i) no
Event of Default (as defined below) shall exist immediately before or
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immediately after such transaction, (ii) in the case of the merger or
consolidation, the Borrower is the survivor or, if the Borrower is not the
survivor, the survivor is a company which expressly assumes in writing the
Borrower's obligations hereunder and under the Note and (iii) in the case of the
transfer of assets, the transferee assumes in writing the Borrower's obligations
hereunder and under the Note and Lender consents to the transferee, which
consent shall not unreasonably be withheld;
(b) create, incur, assume or suffer to exist, any Lien upon any of the
Pledged Assets other than the Pledge provided for under the Security Agreement
or sell, lease, assign or otherwise dispose of or transfer the Pledged Assets.
SECTION 9. EVENTS OF DEFAULT.
If one or more of the following events of default shall occur, the
Principal Amount, plus unpaid interest and any other indebtedness of the
Borrower to the Lender, if any, at the option of the Lender, shall be due and
payable immediately and the Lender shall have the right to terminate this
Agreement forthwith and to sell or have sold the Pledged Assets and exercise any
other rights under the Security Documents or available by law; provided, that
Lender's rights in the event of any such event of default shall be limited to
exercise of all or any part of its rights arising out of the Pledge and Security
Agreement and Borrower shall not be liable to Lender under any of the
Transaction Documents in excess of the value of the Pledged Assets and shall not
otherwise have claim, access or recourse under any of the Transaction Documents
to Borrower or its affiliates or any other assets thereof; and provided further
that Lender agrees to be bound by the Joint Venture Agreement with respect to
any recourse that involves the Joint Venture Agreement, the JV Interest or
Pledged Assets that are also assets of the Joint Venture:
(a) The Borrower shall default in the payment of any portion of the
Principal Amount or interest thereon when due and payable, whether at maturity
or otherwise; or
(b) Any representation or warranty herein contained or in any financial
statement, certificate, report or opinion submitted to the Lender pursuant this
Agreement shall prove to have been incorrect or misleading in any material
respect when made; or
(c) A final judgment or judgments for the payment of money or any
judgment against or any attachment or other levy against the property of the
Borrower that is subject to the Security Agreement with respect to a claim in an
aggregate amount equal to at least 20% of the value of the JV Interest that is
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not covered by insurance, shall be rendered by one or more courts,
administrative tribunals or other bodies having jurisdiction against the
Borrower or its property, and the same shall not be discharged (or provision
shall not be made for such discharge), or a stay of execution thereof shall not
be procured, within sixty (60) days from the date of entry thereof unless an
appeal or other appropriate proceeding for review thereof is taken and a stay of
execution pending such appeal is obtained; or
(d) There is substantial change in ownership or control of the Borrower
that has a Material Adverse Effect; or
(e) The Borrower makes an assignment for the benefit of creditors,
admits in writing its inability to pay its debts generally as they become due,
files a petition in bankruptcy, is adjudicated insolvent or bankrupt, petitions
or applies to any tribunal for any receiver or any trustee of the Borrower or
any substantial part of its property, commences any action relating to the
Borrower under any reorganization, arrangement, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction, whether now or
hereafter in effect, or if there is commenced against the Borrower any such
action, or by any act indicates its consent to or approval of any trustee of any
substantial part of its property, or suffers any such receivership or trustee to
continue undischarged; or
(f) The Borrower shall default in the performance or observance of any
material covenant or provision in this Agreement or any other agreement with the
Lender and such default shall continue for a period of twenty (20) days; or
(g) The Lender shall for any reason other than as a result of acts or
omissions by Lender cease to have a valid, perfected and first priority lien on
any portion of the Pledged Assets (except as otherwise permitted hereunder or
under the Security Documents); or
(h) The Borrower fails to perform any of its material obligations
under, or, in any way, materially breaches the Joint Venture Agreement.
SECTION 10. EXPENSES AND INDEMNIFICATION.
(a) Within thirty (30) days after receipt of an itemized invoice, the
Borrower shall reimburse the Lender in Dollars one hundred percent (100%) of all
fees and expenses incurred by the Lender in connection with the negotiation,
preparation, execution and registration of this Agreement, the Note, the
Security Documents and any other documents required thereunder, including, but
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not limited to, fees and expenses of counsel to the Lender; provided, however,
that the total of all such legal fees and expenses shall not exceed ten thousand
dollars U.S. ($10,000).
(b) The Borrower shall reimburse the Lender in Dollars on demand for
all reasonable expenses incurred as a consequence of, or in connection with, the
enforcement in case of any Event of Default; provided, however, that in the
event the Borrower prevails in an action brought by Lender, Lender shall be
responsible for its own expenses
(c) If the Borrower fails to pay any amount payable hereunder or under
the Note as and when due, or the Borrower breaches this Agreement or otherwise
fails to perform any of its obligations hereunder for any reason, the Borrower
shall reimburse the Lender in Dollars on demand for all reasonable expenses,
losses, costs, claims, proceedings, damages or liability incurred by the Lender
as the consequence thereof, including, without limitation, the costs of
enforcement of this Agreement and the Note, the Security Documents and the fees
and expenses of counsel to the Lender in connection therewith; provided however
that Lender's recourse against Borrower under the Transaction Documents shall be
limited as stated in Section 10 of this Credit Agreement.
SECTION 12. GOVERNING LAW, JURISDICTION, ETC.
(a) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York, without reference to the
conflict of laws principles thereof.
(b) THE LENDER AND THE BORROWER, BY THEIR EXECUTION AND DELIVERY
HEREOF, EACH HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(c) The Borrower hereby irrevocably submits to the jurisdiction of any
New York State court or federal court sitting in New York City, United States of
America over any action or proceeding arising out of or relating to this
Agreement and the Borrower hereby irrevocably agrees that all claims in respect
to such action or proceeding may be heard and determined in such New York state
or federal court, as the case may be. The Borrower hereby irrevocably waives, to
the fullest extent it may effectively do so, the defense of an inconvenient
forum to the maintenance of such action or proceeding. The Borrower hereby
irrevocably consents to the service of copies of the summons and complaint and
any other process which may be served in any such action or proceeding by United
States certified mail, return receipt requested, to the Borrower's address;
service of process in any such action or proceeding, effective as aforesaid,
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shall be effective upon receipt by the Borrower and shall be deemed personal
service upon the Borrower and shall be legal and binding upon the Borrower for
all purposes. The Borrower agrees that a judgment, followed by the expiration of
time to appeal without an appeal being taken, in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this section shall
affect the right of the Lender to serve legal process in any other manner
permitted by law or affect the right of the Lender to bring any action or
processing against the Borrower or its property in the courts of any other
jurisdiction.
SECTION 13. MISCELLANEOUS.
The provisions of this Agreement shall be deemed to be severable, and
the invalidity of any provision hereof shall not affect the validity of the
remaining provisions hereof. The failure of either party to enforce at any time
any of the provisions hereof shall not be construed to be a waiver of such
provisions or of the right of such party thereafter to enforce any such
provisions. This Agreement constitutes the entire agreement and understanding of
the parties with respect to the subject matter hereof, and supersedes all prior
agreements, discussions and understandings between the parties with respect to
the subject matter hereof. No representation or statement not contained in this
Agreement shall be binding on the Lender as a warranty or otherwise. No
amendment, modification or assignment of this Agreement shall be binding on the
parties unless made in writing expressly referring to this Agreement and signed
by an authorized representative of each party. Notices and communications
hereunder shall be in writing and shall be sent by certified or registered mail,
postage prepaid, return receipt requested, or by facsimile to the parties at the
respective addresses indicated above or the respective facsimile numbers set
forth below, to the attention of the persons set forth below.
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IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be duly
executed as of the date first above written.
IIG CAPITAL LLC, as agent for The IIG Trade Opportunities Fund N.V., and the
Venezuela Recovery Fund N.V.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone No.:(000) 000 0000
Facsimile No.:(000) 000 0000
with copies to:
Fox Xxxxx & Camerini LLP
Attention: Xxxxxxxxxxx Xxxxxxx, Esq.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
HECLA MINING COMPANY copies to:
By: Vice President & General Counsel
------------------------------ 0000 Xxxxxxx Xxxxx
Name: Xxxxxxxx X. Xxxxx, Xx.
Title: President & COO Xxxxx x'Xxxxx, Xxxxx 00000-0000
0000 Xxxxxxx Xxxxx Telephone: 000-000-0000
Xxxxx x'Xxxxx, Xxxxx 00000-0000 Facsimile: 000-000-0000
Telephone: 000-000-0000
Facsimile: 208-769-7612
EXHIBIT A
JOINT VENTURE AGREEMENT
EXHIBIT C
PAYMENT SCHEDULE
In accordance with Section 4.1 of the Credit Agreement, the Payment Schedule
shall be as follows:
Simultaneously with giving notice of borrowing in accordance with section
2.3(a), Borrower will execute a Notice of Assignment to the Joint Venture that
assigns Borrower's right to cash distributions from the Joint Venture Agreement
to Lender and instruct that such distributions be deposited directly into the
Deposit Account. Borrower agrees not to change assignment of the cash
distributions without the prior written consent of Lender; provided that such
consent shall not be required if no amounts are owed to Lender pursuant to the
Credit Agreement.
The cash distributions will be used by Lender as Borrower's payment of principal
and interest owed to Lender pursuant to this Credit Agreement. Except as
hereinafter provided to the contrary, Lender shall be entitled to retain seventy
percent (70%) of such cash distributions until all amounts owed to Lender under
this Credit Agreement are paid in full. Any amount of the cash distributions in
excess of that owed to Lender shall be wire transferred to Borrower's Account
within two (2) Business Days from the date on which such excess is created.
Borrower may request additional borrowing from Lender even if there are amounts
owed to Lender so long as the limits on the Credit Facility set forth in Section
2.1 have not been exceeded.
Lender shall be entitled to retain up to 100% of the cash distributions referred
to above in the event Lender becomes aware of any event that, by itself or in
combination with other events or the passage of time or both, may or will cause
a reduction of 10% or more in the amount projected to be distributed to Borrower
by the Joint Venture during the term of this facility, until all amounts owed to
Lender under this Credit Agreement are paid in full.
Lender shall provide Borrower a monthly accounting, within five (5) days after
the end of a calendar month, of the amount of cash distributions received into
the Deposit Account, the amount of principal and interest paid, and the amount
of principal owed to Lender.
EXHIBIT B
PROMISSORY NOTE
EXHIBIT D
SECURITY AGREEMENT
