1
Exhibit 10.1(d)
EXECUTION
THIRD AMENDMENT TO RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO RESTATED CREDIT AGREEMENT (herein
called the "Amendment") made as of December 20, 1999 by and among
Hecla Mining Company, a Delaware corporation ("Borrower"), the
undersigned subsidiary guarantors ("Subsidiary Guarantors"), Bank
of America, N.A., f/k/a Bank of America National Trust and
Savings Association, successor by merger to Bank of America,
N.A., f/k/a NationsBank, N.A., individually and as agent
("Agent"), and the Lenders, including Agent, party to the
Original Agreement ("Lenders"), defined below.
W I T N E S S E T H:
WHEREAS, Borrower, Subsidiary Guarantors, Agent and Lenders
entered into that certain Restated Credit Agreement dated as of
May 7, 1999 (as amended, supplemented, or restated, the "Original
Agreement") for the purpose and consideration therein expressed,
whereby Lenders became obligated to make loans to Borrower as
therein provided; and
WHEREAS, Borrower, Subsidiary Guarantors, Agent and Lenders
desire to amend the Original Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein and in the
Original Agreement, in consideration of the loans which may
hereafter be made by Lenders to Borrower, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto do hereby agree as
follows:
ARTICLE I.
Definitions and References
Section 1.1. Terms Defined in the Original Agreement.
Unless the context otherwise requires or unless otherwise
expressly defined herein, the terms defined in the Original
Agreement shall have the same meanings whenever used in this
Amendment.
Section 1.2. Other Defined Terms. Unless the context
otherwise requires, the following terms when used in this
Amendment shall have the meanings assigned to them in this
Section 1.2.
2
"Amendment" means this Third Amendment to Restated
Credit Agreement.
"Amendment Documents" means (i) this Amendment, (ii)
that certain Second Amendment to LLC Pledge Agreement of
even date herewith between Borrower and Agent, (iii) that
certain Security Agreement of even date herewith by Mountain
West, L.L.C. in favor of Agent, as secured party, and (iv)
all financing statements and other instruments and
certificates relating to the foregoing.
"Credit Agreement" means the Original Agreement as
amended hereby.
ARTICLE II.
Amendments to Original Agreement
Section 2.1. Defined Terms.
(a) Section 1.1 of the Original Agreement is hereby amended
to delete the definitions of "Eligible MWCA Inventory" and
"Eligible Other Inventory".
(b) The definitions of "Eligible Inventory", "Minimum Net
Proceeds", "MWCA Triggering Event", and "Subsidiary Guarantor" in
Section 1.1 of the Original Agreement are hereby amended in their
entirety to read as follows:
" 'Eligible Inventory' means any Product which is owned by
Borrower or any Subsidiary Guarantor (excluding each of MWCA,
Inc. and Mountain West, L.L.C. following the sale of all or
substantially all of the assets or all of the outstanding capital
stock thereof) and which:
(a) is located at a mine or a processing plant owned by
Borrower or any Subsidiary Guarantor (excluding each of MWCA,
Inc. and Mountain West, L.L.C. following the sale of all or
substantially all of the assets or all of the outstanding capital
stock thereof) or is in transit to a smelter, mill or refinery
owned by any such Persons; and
(b) such mine or processing plant, or such smelter, mill or
refinery:
(i) IS LOCATED IN THE UNITED STATES in a state in
respect of which Agent has received an opinion of counsel,
in form and substance satisfactory to Agent, to the effect
that the Product located in such state is subject to an
enforceable and duly perfected security interest in favor of
Agent or, if in transit, will be located in such a state
immediately upon reaching its destination, or
3
(ii) IS NOT LOCATED IN THE UNITED STATES, but the
aggregate amount of all such Product included in the
Borrowing Base shall not exceed twenty percent (20%) of all
Eligible Inventory; and
(c) if such Product is located in the United States, such
Product is subject to an enforceable security interest in favor
of Agent which is duly perfected and of first priority, or if in
transit, will be duly perfected and of first priority immediately
upon reaching its destination; and
(d) such Product is fully and adequately insured pursuant
to Section 6.8 with Agent named as loss payee as its interests
may appear; and
(e) such Product is categorized on the Borrower's
Consolidated balance sheet as 'Products on hand and in Transit;
Concentrates and Metals in transit, and Industrial mineral
product.' "
" 'Minimum Net Proceeds' means (x) net proceeds from the
sale of assets, capital stock, or ownership interests of MWCA,
Inc. and Mountain West, L.L.C. plus (y) Net Proceeds from New
Equity in an amount equal to or greater than $25,000,000."
" 'MWCA Triggering Event' means the first to occur of any of
the following (a) the failure by Borrower to sell all of the
capital stock or all or substantially all of the assets of MWCA,
Inc. by December 31, 1999 or (b) the occurrence of a Default or
Event of Default hereunder."
" 'Subsidiary Guarantor' means each of MWCA, Inc., Mountain
West, L.L.C., Kentucky-Tennessee Clay Company, K-T Feldspar
Corporation, and any other Subsidiary who has guaranteed some or
all of the Obligations pursuant to Section 6.14."
Section 2.2. Agreement to Deliver Security Documents; Sale
of MWCA, Inc. Section 6.16(c) of the Original Agreement is
hereby amended in its entirety to read as follows:
"(c) MWCA, Inc. has delivered to Agent Security
Documents pursuant to Section 6.16(a) above. Agent has
agreed to hold such Security Documents in anticipation of
the sale described in Section 6.16(b) and to record the
related financing statements (i) only if Borrower fails to
sell all of the capital stock or all or substantially all of
the assets of MWCA, Inc. by December 31, 1999 or (ii) if
earlier, after the occurrence of a Default hereunder."
4
Section 2.3. Guaranty. Mountain West, L.L.C. hereby (i)
agrees to irrevocably, absolutely, and unconditionally guarantee
to Lenders the prompt, complete, and full payment when due, and
no matter how the same shall become due, of all Obligations
pursuant to the terms set forth in Article VIIA of the Credit
Agreement, (ii) acknowledges and agrees that by becoming a
Subsidiary Guarantor hereunder, it agrees to become bound by all
terms and provisions of the Credit Agreement relating to
Subsidiary Guarantors, including the Guaranty provisions of
Article VIIA of the Credit Agreement, (iii) that it has received
a copy of the Credit Agreement prior to its execution of this
Amendment, and (iv) that it has received ample time and
opportunity to review the provisions of Article VIIA of the
Credit Agreement.
Section 2.4. Security Schedule. Schedule 2 to the
Original Agreement is hereby amended in its entirety to read as
set forth in Exhibit A attached hereto.
Section 2.5. Borrower's Subsidiaries. Schedule 3 to the
Original Agreement is hereby amended in its entirety to read as
set forth in Exhibit B attached hereto.
Limited Consent
Section 2.6. MWCA, Inc. Borrower has informed Agent that
it intends to transfer or assign to Mountain West, L.L.C. certain
real and personal property owned by MWCA, Inc. that is located in
the States of Idaho, Montana, and South Dakota (the "Transfer
Property" and the "Transfer"). Subject to the terms and
conditions set forth in this Amendment, upon receipt of written
notification to Agent at least five (5) Business Days prior to
the consummation of the Transfer, Agent and each Lender consent
to the consummation of the Transfer; provided that (i) the
Transfer Property transferred or assigned pursuant to the
Transfer shall be subject to all prior liens and security
interests of Agent and Lenders in and to the Transfer Property
which arise under any Loan Document, (ii) Borrower shall provide
to Agent copies of the instruments (recorded, as appropriate)
conveying the Transfer Property to Mountain West, L.L.C. and
(iii) all conditions set forth in Article III below have been
satisfied.
ARTICLE III.
Conditions of Effectiveness
Section 3.1. Effective Date. This Amendment shall become
effective as of the date first above written when and only when:
(a) Agent shall have received all of the following, at
Agent's office, duly executed and delivered and in form and
substance satisfactory to Agent, all of the following:
5
(i) the Amendment;
(ii) a certificate of the Secretary or Assistant
Secretary of Borrower and each Subsidiary Guarantor dated
the date of this Amendment certifying: (i) that resolutions
adopted by the Board of Directors of such Person authorize
the execution, delivery and performance of this Amendment
and the other Amendment Documents by such Person; (ii) the
names and true signatures of the officers of such Persons
authorized to sign this Amendment and the other Amendment
Documents; and (iii) that all of the representations and
warranties set forth in Article IV hereof are true and
correct at and as of the time of such effectiveness;
(iii) a copy of the Articles of Organization of
Mountain West, L.L.C. certified by the Secretary of State of
Idaho;
(iv) each Amendment Document;
(v) a favorable opinion of Xxxxxxxxx X. Xxxxx, Esq.,
Corporate Counsel and Assistant Secretary of the Borrower,
substantially in the form set forth in Exhibit C; and
(vi) such other supporting documents as Agent may
reasonably request.
(b) Borrower shall have paid, in connection with such Loan
Documents, all recording, handling, amendment and other fees
required to be paid to Agent pursuant to any Loan Documents.
(c) Borrower shall have paid, in connection with such Loan
Documents, all other fees and reimbursements to be paid to Agent
pursuant to any Loan Documents, or otherwise due Agent and
including fees and disbursements of Agent's attorneys.
ARTICLE IV.
Representations and Warranties
Section 4.1. Representations and Warranties of Borrower.
In order to induce each Lender to enter into this Amendment,
Borrower represents and warrants to each Lender that:
(a) The representations and warranties contained in
subsections of Section 5.1 of the Original Agreement are true and
correct at and as of the time of the effectiveness hereof.
6
(b) Borrower and each Subsidiary Guarantor are duly
authorized to execute and deliver this Amendment and the other
Amendment Documents and are and will continue to be duly
authorized to borrow monies and to perform their respective
obligations under the Credit Agreement. Borrower and each
Subsidiary Guarantor have duly taken all corporate or limited
liability company action necessary to authorize the execution and
delivery of this Amendment and the other Amendment Documents and
to authorize the performance of their respective obligations
hereunder and thereunder.
(c) The execution and delivery by Borrower and each
Subsidiary Guarantor of this Amendment and the other Amendment
Documents, the performance by Borrower and each Subsidiary
Guarantor of their respective obligations hereunder and
thereunder and the consummation of the transactions contemplated
hereby and thereby do not and will not conflict with any
provision of law, statute, rule or regulation or of the
certificate of incorporation, bylaws, or other organizational
documents of Borrower or any Subsidiary Guarantor, or of any
material agreement, judgment, license, order or permit applicable
to or binding upon Borrower or any Subsidiary Guarantor, or
result in the creation of any lien, charge or encumbrance upon
any assets or properties of Borrower or any Subsidiary Guarantor.
Except for those which have been obtained, no consent, approval,
authorization or order of any court or governmental authority or
third party is required in connection with the execution and
delivery by Borrower or any Subsidiary Guarantor of this
Amendment and the other Amendment Documents or to consummate the
transactions contemplated hereby and thereby.
(d) When duly executed and delivered, each of this
Amendment, the other Amendment Documents, and the Credit
Agreement will be a legal and binding obligation of Borrower and
each Subsidiary Guarantor, enforceable in accordance with its
terms, except as limited by bankruptcy, insolvency or similar
laws of general application relating to the enforcement of
creditors' rights and by equitable principles of general
application.
(e) The audited annual Consolidated financial statements of
Borrower dated as of December 31, 1998 and the unaudited
quarterly Consolidated financial statements of Borrower dated as
of September 30, 1999 fairly present the Consolidated financial
position at such dates and the Consolidated statement of
operations and the changes in Consolidated financial position for
the periods ending on such dates for Borrower. Copies of such
financial statements have heretofore been delivered to each
Lender. Since such dates no material adverse change has occurred
in the financial condition or businesses or in the Consolidated
financial condition or businesses of Borrower.
(f) No operating agreement (or other similar limited
liability company agreement) has been consented to, adopted or
approved by or on behalf of Mountain West, L.L.C.
7
ARTICLE V.
Miscellaneous
Section 5.1. Ratification of Agreements. The Original
Agreement as hereby amended is hereby ratified and confirmed in
all respects. The Loan Documents, as they may be amended or
affected by the various Amendment Documents, are hereby ratified
and confirmed in all respects. Any reference to the Credit
Agreement in any Loan Document shall be deemed to be a reference
to the Original Agreement as hereby amended. The execution,
delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right,
power or remedy of Lenders under the Credit Agreement, the Notes,
or any other Loan Document nor constitute a waiver of any
provision of the Credit Agreement, the Notes or any other Loan
Document.
Section 5.2. Survival of Agreements. All representations,
warranties, covenants and agreements of Borrower herein shall
survive the execution and delivery of this Amendment and the
performance hereof, including without limitation the making or
granting of the Loans, and shall further survive until all of the
Obligations are paid in full. All statements and agreements
contained in any certificate or instrument delivered by any
Related Person hereunder or under the Credit Agreement to any
Lender shall be deemed to constitute representations and
warranties by, and/or agreements and covenants of, Borrower under
this Amendment and under the Credit Agreement.
Section 5.3. Loan Documents. This Amendment is a Loan
Document, and all provisions in the Credit Agreement pertaining
to Loan Documents apply hereto.
Section 5.4. Governing Law. This Amendment shall be
governed by and construed in accordance the laws of the State of
Texas and any applicable laws of the United States of America in
all respects, including construction, validity and performance.
Section 5.5. Counterparts; fax. This Amendment may be
separately executed in counterparts and by the different parties
hereto in separate counterparts, each of which when so executed
shall be deemed to constitute one and the same Amendment. This
Amendment may be validly executed and delivered by facsimile or
other electronic transmission.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS OF THE PARTIES.
[The remainder of this page has been intentionally left blank.]
8
IN WITNESS WHEREOF, this Amendment is executed as of the
date first above written.
BORROWER: HECLA MINING COMPANY
By: /s/ Xxxx X. Xxxxxxxx
---------------------------
Xxxx X. Xxxxxxxx
Vice President and Chief
Financial Officer
SUBSIDIARY GUARANTORS: MWCA, INC.
By: /s/ J. Gary Childress
---------------------------
J. Gary Childress
Vice President
KENTUCKY-TENNESSEE CLAY COMPANY
By: /s/ J. Gary Childress
---------------------------
J. Gary Childress
Vice President
K-T FELDSPAR CORPORATION
By: /s/ J. Gary Childress
---------------------------
J. Gary Childress
Vice President
MOUNTAIN WEST, L.L.C.
By: Hecla Mining Company, as
sole member
By: /s/ J. Gary Childress
---------------------------
J. Gary Childress
Vice President -
Industrial Minerals
9
AGENT AND LENDER: BANK OF AMERICA, N.A.
By: /s/ Xxxxxx Xxxxxxx
---------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
LENDERS: FIRST SECURITY BANK, N.A.
By: /s/ Xxxxx Xxxx
---------------------------
Name: Xxxxx Xxxx
Title: Vice President
