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Exhibit 10
DATED AS OF MARCH 24, 2000
HECLA MINING COMPANY
as Borrower
STANDARD BANK LONDON LIMITED
as Initial Lender
STANDARD BANK LONDON LIMITED
as Collateral Agent
and
STANDARD BANK LONDON LIMITED
as Administrative Agent
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FACILITY AGREEMENT
-----------------------------
ASHURST XXXXXX XXXXX
Xxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 000 0000 0000
Fax: 000 0000 0000
TCW/627S00008/1630708.5
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INDEX
1. DEFINITIONS; INTERPRETATION
1.1 Defined Terms
1.2 Use of Defined Terms
1.3 Accounting and Financial Determinations
1.4 Change in Accounting Principles
1.5 General Provisions as to Certificates and Opinions, etc.
1.6 Interpretation
2. COMMITMENTS AND PROCEDURES FOR MAKING LOANS;
CONTINUATION PROCEDURES
2.1 Commitments; Making Loans
2.2 Continuation Elections
2.3 Records
2.4 Funding
2.5 Obligations Several
3. PRINCIPAL PAYMENTS; INTEREST; FEES
3.1 Principal Payments
3.2 Interest Payments
3.3 Fees
4. INCREASED COSTS; TAXES; MARKET DISRUPTIONS; GENERAL
PAYMENT PROVISIONS
4.1 Dollars Unavailable
4.2 Increased Costs, etc.
4.3 Funding Losses
4.4 Increased Capital Costs
4.5 Illegality
4.6 Taxes
4.7 Mitigation
4.8 Payments, Computations, etc.
4.9 Proration of Payments
4.10 Set-off
4.11 Application of Proceeds
5. CONDITIONS PRECEDENT TO MAKING LOANS
5.1 Initial Loans
6. REPRESENTATIONS AND WARRANTIES
6.1 Organization, Power, Authority, etc.
6.2 Due Authorization; Non-Contravention
6.3 Validity, etc.
6.4 Financial Information
6.5 Legal Status
6.6 Absence of Default
6.7 Litigation, etc.
6.8 Materially Adverse Effect
6.9 Taxes and Other Payments
6.10 Subsidiaries
6.11 Environmental Warranties
6.12 ERISA Liabilities
6.13 Regulations T, U and X
6.14 Government Regulation
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6.15 Pari Passu
7. COVENANTS
7.1 Informational and Financial Covenants
7.2 Affirmative Covenants
7.3 Negative Covenants
8. EVENTS OF DEFAULT
8.1 Events of Default
8.2 Action if Bankruptcy
8.3 Action if Other Event of Default
9. THE AGENTS
9.1 Actions
9.2 Funding Reliance, etc.
9.3 Exculpation
9.4 Successors
9.5 Loans by Standard Bank
9.6 Standard Bank as Administrative Agent
9.7 Credit Decisions
9.8 Copies, etc.
10. MISCELLANEOUS
10.1 Waivers, Amendments, etc
10.2 Notices
10.3 Costs and Expenses
10.4 Indemnification
10.5 Survival
10.6 Severability
10.7 Headings
10.8 Counterparts; Effectiveness
10.9 Governing Law; Entire Agreement
10.10 Successors and Assigns
10.11 Sale and Transfer of Loans; Participations in Loans
10.12 Other Transactions
10.13 Forum Selection and Consent to Jurisdiction; Waiver of Immunity
10.14 Waiver of Jury Trial
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SCHEDULES AND EXHIBITS
SCHEDULE I Disclosure Schedule
SCHEDULE II Additional Costs Rate
EXHIBIT A Borrowing Notice
EXHIBIT B Continuation Notice
EXHIBIT C Lender Assignment Agreement
EXHIBIT D Agreement to Release
EXHIBIT E Subsidiary Security Agreement
EXHIBIT F-1 Opinion of Debevoise & Xxxxxxxx, New York
counsel to the Finance Parties
EXHIBIT F-2 Opinion of Xxxxxxx X Xxxxx, Vice President,
General Counsel and Secretary of Hecla Mining
EXHIBIT G Process Agent Acceptance
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THIS FACILITY AGREEMENT is dated as of March 24, 2000 (this "Agreement")
AMONG:-
(1) HECLA MINING COMPANY, a Delaware corporation ("Hecla Mining" or the
"Borrower");
(2) STANDARD BANK LONDON LIMITED, a bank organized under the laws of England
("Standard Bank"), as the initial lender (in such capacity, the "Initial
Lender");
(3) STANDARD BANK LONDON LIMITED, in its capacity as the collateral agent (in
such capacity, the "Collateral Agent"); and
(4) STANDARD BANK LONDON LIMITED, in its capacity as the administrative agent
(in such capacity, the "Administrative Agent").
WITNESSETH:-
WHEREAS, Hecla Mining and its Subsidiaries (such and other capitalized terms
used as defined in Section 1.1) are active in the exploration and development of
precious metals and industrial minerals in the United States and other
jurisdictions;
WHEREAS, Hecla Mining is party to (1) the Restated Credit Agreement as of May 7,
1999, as amended prior to the date hereof (the "Nationsbank Credit Agreement")
among Hecla Mining, as borrower, certain subsidiaries of Hecla Mining, the bank
parties thereto and Nationsbank, N.A., now known as Bank of America, N.A. ("Bank
of America") as agent and (2) the Subordinated Loan Agreement dated as of June
25, 1999 and amended as of July 19, 1999 (as so amended, the "Existing Standard
Credit Agreement") among Hecla Mining, as borrower, Standard Bank, as initial
lender, Standard Bank, as collateral agent, and Standard Bank, as collateral
agent;
WHEREAS, in order to refinance the Indebtedness arising under the Nationsbank
Credit Agreement (other than, subject at all times to the terms of this
Agreement, with respect to the Industrial Revenue Bonds) and for general
corporate purposes, the Borrower has requested that the Initial Lender make
funds available to it and the Initial Lender is willing to make such loans
available to the Borrower on the terms and subject to the conditions of this
Agreement and the other Loan Documents; and
WHEREAS, the Nationsbank Credit Agreement is currently secured, inter alia, by
the shares of certain of Hecla Mining's Subsidiaries, and it is a condition
precedent to the making of the Loans hereunder that such security be released
and that certain assets be pledged in favor of the Collateral Agent, as more
particularly set forth in the Subsidiary Security Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy
whereof is hereby acknowledged by each party hereto, the parties hereto hereby
agree as follows:-
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1. DEFINITIONS; INTERPRETATION
1.1 Defined Terms
The following terms, when used in this Agreement, including its preamble
and recitals, shall have the following meanings:
"Account Control Agreement" means the account control agreement dated on
or about the date hereof between the Borrower and Bank of America, as
agent and individually.
"Additional Costs Rate" means, for any Interest Period, the applicable
rate determined by the Administrative Agent and the relevant Lenders in
accordance with Schedule II.
"Administrative Agent" is defined in the preamble.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls or is controlled by or under common control with such
Person (excluding any trustee under, or any committee with responsibility
for administering, any compensation, welfare or similar plan). A Person
shall be deemed to be "controlled by" any other Person if such other
Person possesses, directly or indirectly, power:
(a) to vote twenty percent (20%) or more of the securities (on a fully
diluted basis) having ordinary voting power for the election of
directors or managing general partners of such Person; or
(b) to direct or cause the direction of the management and policies of
such Person, whether by contract or otherwise.
"Agents" means, collectively, the Administrative Agent and the Collateral
Agent.
"Aggregate Commitment Amount" means U.S.$55,000,000, as may be reduced
pursuant to Section 2.1(d).
"Agreement" is defined in the preamble.
"Agreement to Release" means the Agreement executed by Bank of America,
the Borrower and the Collateral Agent, substantially in the form at
Exhibit D attached hereto.
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"Applicable Law" means, with respect to any Person or matter, any
supranational, national, provincial, federal, state, regional or local
statute, law, rule, treaty, convention, regulation, order, decree or other
requirement relating to such Person or matter and, where applicable, any
interpretation thereof by any Governmental Agency having jurisdiction with
respect thereto or charged with the administration or interpretation
thereof (in each case, whether or not having the force of law, but if not
having the force of law, such statute, law, etc. being of the type with
which such Person would comply in the ordinary course of business).
"Applicable Margin" means two and one quarter per cent (2.25%) per annum.
"Approval" means each and every approval, authorization, license, permit,
consent, filing and registration by or with any Governmental Agency or
other Person necessary for the execution, delivery or performance of this
Agreement or any other Loan Document or for the validity or enforceability
hereof or thereof.
"Approved Credit Quality" means at least A-1 (or any successor rating) by
Standard & Poor's Rating Group, a division of McGraw Hill, Inc. and/or P-1
(or any successor rating) by Xxxxx'x Investors Services, Inc.
"Approved Sale Transaction" means the sale or other disposition by the
Borrower of its interest in Greens Creek or any of its Material
Subsidiaries (but excluding for the avoidance of doubt MWCA) and/or the
associated business or the assets (in whole or in substantial part) of any
of the foregoing, where the resulting Net Sales Proceeds are used to
prepay the Loans pursuant to Section 3.1.2.
"Assignee Lender" is defined in Section 10.11.1.
"Assignor Lender" is defined in Section 10.11.1.
"Authorized Representative" means those officers of the Borrower whose
signatures and incumbency shall have been certified pursuant to Section
5.1.1.
"Bank of America" is defined in the second recital.
"Borrower" is defined in the preamble.
"Borrowing Date" means the Business Day on which Loans are made pursuant
to Section 2.1.
"Borrowing Notice" means a loan request and certificate duly executed by
an Authorized Representative of the Borrower, substantially in the form of
Exhibit A attached hereto.
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"Business Day" means:-
(a) any day which is not Saturday, Sunday, a legal holiday or any other
day on which banks are closed in London, England or New York, New
York; and
(b) relative to the making, continuing or the calculation of the LIBO
Rate, any day on which dealings in Dollars are carried on in the
London interbank market.
"Capital Expenditures" means, for any period and with respect to any
Person, the sum of:
(a) the aggregate amount of all expenditures of such Person for fixed or
capital assets (including expenditure incurred in connection with
deferred development costs) made during such period which, in
accordance with U.S. GAAP, would be classified as capital
expenditures; and
(b) the aggregate amount of all Capitalized Lease Liabilities incurred
during such period.
"Capitalized Lease Liabilities" means all monetary obligations of any
Person under any leasing or similar arrangement which, in accordance with
U.S. GAAP, would be classified as capitalized leases, and, for the
purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with U.S. GAAP, and
the stated maturity thereof shall be the date of the last payment of rent
or any other amount due under such lease prior to the first date upon
which such lease may be terminated by the lessee without payment of a
penalty.
"Cash Equivalent Investment" means, at any time:
(a) any security, maturing not more than one year after the purchase
thereof, issued by the United States Treasury that is maintained in
book-entry form on the records of a Federal Reserve Bank in the United
States;
(b) commercial paper, maturing not more than nine months from the date of
issue, which (i) has a rating of at least Approved Credit Quality and
(ii) is issued or guaranteed by a company (other than the Borrower or
any Affiliate thereof) or a bank or commercial financial institution;
or
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(c) any negotiable certificate of deposit or banker's acceptance
denominated in Dollars, maturing not more than one year after the
purchase thereof, or any money market funds in any case issued (or, in
the case of a banker's acceptance, accepted) by a commercial banking
institution organized under the laws of an OECD member country that
has a combined capital and surplus and undivided profits of not less
than U.S.$1,000,000,000 (or the equivalent thereof in any other
currency).
"Change in Control" means the occurrence of either of the following
events:-
(a) any Person or two or more Persons acting as a group shall acquire
beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Act of 1934,
and including holding proxies to vote for the election of directors
other than proxies held by the Borrower's management or their
designees to be voted in favor of Persons nominated by the Borrower's
Board of Directors) of 25% or more of the outstanding voting
securities of the Borrower, measured by voting power (including both
common stock and any preferred stock or other equity securities
entitling the holders thereof to vote with the holders of common
stock in elections for directors of Borrower); or
(b) a majority of the directors of the Borrower shall consist of Persons
not nominated by the Borrower's Board of Directors (not including as
Board nominees any directors which the Board is obligated to
nominate pursuant to shareholders agreements, voting trust
arrangements or similar arrangements).
"Collateral Agent" is defined in the preamble.
"Commitment" means each Lender's obligation to make, maintain and/or
continue its Loans in an amount equal to its Commitment Amount in each
case pursuant to the terms and subject to the conditions of this
Agreement.
"Commitment Amount" means (a) relative to any Initial Lender, the amount
set forth opposite its name on the signature pages hereto under the
heading "Commitment Amount" and (b) relative to any Assignee Lender, the
amount under the heading "Commitment Amount" assumed from the Assignor
Lender pursuant to the Lender Assignment Agreement by which such Assignee
Lender became a party to this Agreement, in each case as such amount may
be adjusted pursuant to any Lender Assignment Agreement pursuant to which
such Assignor Lender or Assignee Lender, as the case may be, is a party.
"Commitment Termination Date" means the earliest to occur of the
following:-
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(a) April 30, 2000;
(b) the occurrence of any Enforcement Event;
(c) the Borrowing Date on which the Loans shall have been made pursuant to
Section 2.1; and
(d) the termination of the Commitments pursuant to Section 2.1(d).
"Contingent Liability" means any agreement, undertaking or arrangement by
which any Person guarantees, endorses or otherwise becomes or is
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or otherwise
to invest in, a debtor, or otherwise to assure a creditor against loss)
the indebtedness, obligation or any other liability of any other Person
(other than by endorsements of instruments in the course of collection),
or guarantees the payment of dividends or other distributions upon the
shares of any other Person. The amount of any Person's obligation under
any Contingent Liability shall (subject to any limitation set forth
therein) be deemed to be the outstanding principal amount (or maximum
principal amount, if larger) of the debt, obligation or other liability
guaranteed thereby.
"Continuation Notice" means a notice of continuation and certificate duly
executed by an Authorized Representative of the Borrower, substantially in
the form of Exhibit B attached hereto.
"Contractual Obligation" means, relative to any Person, any provision of
any security issued by such Person or of any Instrument or undertaking to
which such Person is a party or by which it or any of its property is
bound.
"Default" means any Event of Default or any condition or event which,
after notice, lapse of time, the making of any required determination or
any combination of the foregoing, would constitute an Event of Default.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I.
"Dollar" and the sign "U.S.$" mean lawful money of the United States.
"Effective Date" is defined in Section 10.8.
"Enforcement Event" means either:-
(a) an Insolvency Event; or
(b) the occurrence of any other Event of Default and the acceleration of
the Obligations pursuant to Section 8.3.
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"Environmental Law" means, with respect to any Person, any Applicable Law
relating to or imposing liability or standards of conduct concerning
public health and safety and the protection of the environment that is
applicable to such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means the Borrower and all members of a controlled group
of corporations and all trades or business (whether or not incorporated)
under common control that, together with the Borrower, are treated as a
single employer under Section 414 of the Internal Revenue Code.
"ERISA Plan" means any employee pension benefit plan subject to Title IV
or ERISA maintained by any ERISA Affiliate with respect to which any
Related Person has a fixed or contingent liability.
"Event of Default" is defined in Section 8.1.
"Existing Standard Credit Agreement" is defined in the second recital.
"Facility" means the Loans and the financial accommodations made to the
Borrower in connection therewith.
"Finance Parties" means, collectively, the Lenders and the Agents.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means any period of twelve consecutive calendar months
ending on December 31.
"F.R.S. Board" means the Board of Governors of the Federal Reserve System.
"Governmental Agency" means any supranational, national, federal, state,
regional or local government or governmental department or other entity
charged with the administration, interpretation or enforcement of any
Applicable Law.
"Greens Creek" means the Greens Creek gold mine operated pursuant to the
Restated Mining Venture Agreement, dated May 6, 1994, as amended prior to
the date hereof, between Kennecott Greens Creek Mining Company, Hecla
Mining and CSX Alaska Mining Inc.
"Greens Creek Financing" means any financing of any potential purchase by
the Borrower or any of its Subsidiaries of the remaining interest (not
currently held by the Borrower) in Greens Creek and any project financing
of Greens Creek.
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"Hazardous Material" means:
(a) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material, substance or waste within the meaning of any
Environmental Law; or
(b) any petroleum product.
"Hecla Mining" is defined in the preamble.
"Hedging Obligations" means, with respect to any Person, all liabilities
of such Person under commodity swap agreements, interest rate swap
agreements, interest rate cap agreements and interest rate collar
agreements, and all other agreements, options and arrangements designed to
protect such Person against fluctuations in interest rates, currency
exchange rates or metal prices.
"Impermissible Qualification" means, relative to the opinion or report of
any independent certified public accountant or any independent chartered
accountant as to any financial statement of the Borrower, any
qualification or exception to such opinion or report:
(a) which is of a "going concern" or similar nature;
(b) which relates to any limited scope of examination of matters relevant
to such financial statement which has resulted from any action of the
Borrower the result of which is, directly or indirectly, to prevent
such accountant from making such examination as such accountant deems
appropriate.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money or metals and all
obligations evidenced by bonds, debentures, notes, or other similar
Instruments on which interest charges are customarily paid;
(b) all obligations, contingent or otherwise, relative to the face amount
of all letters of credit, whether or not drawn, and bankers'
acceptances and similar instruments, in each such case issued for the
account of such Person;
(c) all obligations of such Person as lessee under leases which have been
or should be, in accordance with U.S. GAAP, recorded as Capitalized
Lease Liabilities;
(d) net payment liabilities of such Person under all Hedging Obligations;
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(e) whether or not so included as liabilities in accordance with U.S.
GAAP, all obligations of such Person to pay the deferred purchase
price of property or services, and indebtedness (excluding prepaid
interest thereon) secured by a Lien on property owned or being
purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not
such indebtedness shall have been assumed by such Person or is limited
in recourse; and
(f) all Contingent Liabilities of such Person in respect of any of the
foregoing items which are the obligations of any other Person.
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Industrial Revenue Bonds" means the U.S. $9,800,000 aggregate principal
amount of Solid Waste Disposal Revenue Bonds (Hecla Mining Company
Project) Series 1997.
"Initial Lender" is defined in the preamble.
"Insolvency Event" means the occurrence of any Default described in
Section 8.1.6.
"Instrument" means any contract, agreement, indenture, mortgage, document
or writing (whether by formal agreement, letter or otherwise) under which
any obligation is evidenced, assumed, or undertaken, or any Lien (or right
or interest therein) is granted or perfected or purported to be granted or
perfected.
"Interest Period" means, relative to any Loan:
(a) initially, the period from the date such Loan was made on the
Borrowing Date to the day which numerically corresponds to such date
one, two, three or six months thereafter (or such other date as agreed
between all the Lenders and the Borrower but, subject, at all times to
the provisions of Section 4.1);
(b) thereafter, each period from the last day of the immediately preceding
Interest Period applicable to such Loan to the day which numerically
corresponds to such date one, two, three or six months thereafter (or
such other date as agreed between all the Lenders and the Borrower
and, subject as provided in clause (a)) as the Borrower may
irrevocably select in the relevant Continuation Notice delivered
pursuant to Section 2.2;
provided, however, that:
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(c) absent the timely selection of an Interest Period for a then
outstanding Loan, the Borrower shall be deemed to have selected an
Interest Period identical to that then in effect with respect to such
Loan;
(d) if such Interest Period for any Loan would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the
next following Business Day, unless such Business Day occurs in the
next following calendar month, in which case such Interest Period
shall end on the immediately preceding Business Day;
(e) the Borrower shall not be permitted to select, and there shall not be
applicable, any Interest Period for any Loan that would end later than
the Maturity Date;
(f) at any one time, there shall only be permitted to be in effect a
maximum of four Interest Periods with respect to the Loans; and
(g) the Administrative Agent shall be able to select Interest Periods
satisfactory to it pursuant to the terms and conditions of Section
3.2.2 or after any Enforcement Event.
"Investment" means, relative to any Person and without duplication:
(a) any loan or advance made by such Person to any other Person (excluding
commission, travel and similar advances to officers and employees made
in the ordinary course of business);
(b) any Contingent Liability entered into by such Person; and
(c) any ownership or similar interest held by such Person in any other
Person.
The amount of any Investment shall be the original principal or capital
amount thereof less all returns of principal or equity thereon (and
without adjustment by reason of the financial condition of such other
Person) and shall, if made by the transfer or exchange of property other
than cash, be deemed to have been made in an original principal or capital
amount equal to the fair market value of such property.
"La Camorra Credit Agreement" means the credit agreement, dated as of June
25, 1999, between (1) Hecla Resources Investments Limited, as borrower,
(2) MHV, as additional obligor, (3) the lenders party thereto and (4)
Standard Bank, as administrative agent and collateral agent.
"Lender Assignment Agreement" means an Assignment Agreement, duly executed
by an Assignor Lender and an Assignee Lender, substantially in the form of
Exhibit C attached hereto.
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"Lenders" means, collectively, the Initial Lender and the Assignee
Lenders.
"Lending Office" means (a) with respect to each Initial Lender, the office
of such Initial Lender designated as such below its signature hereto or
such other office of such Initial Lender as may be designated from time to
time by notice from such Initial Lender to the Administrative Agent and
the Borrower, (b) with respect to each Assignee Lender, the office of such
Assignee Lender designated as such in the Lender Assignment Agreement
pursuant to which it became a Lender or as may be designated from time to
time by notice from such Assignee Lender to the Administrative Agent and
the Borrower and (c) with respect to the Administrative Agent, the office
of the Administrative Agent designated as such from time to time by notice
to the Borrower and each Lender.
"LIBO Rate" means:-
(a) the rate (rounded upwards, if necessary, to the nearest four decimal
places) which is the offered rate at or about 11.00 a.m. two Business
Days prior to the relevant Interest Period for Dollar deposits for a
period equal to the relevant Interest Period which appears on the
display designated as the British Bankers' Association Interest
Settlement Rate as quoted on the Reuters' Screen page no. LIBOR = (or
such other page or service as may replace page no. LIBOR = of such
service (as the case may be)) for the purpose of so displaying the
British Bankers' Association Interest Settlement Rate for London
interbank offered rates and, in the absence of any such replacement
page or service, such other page of such other service as the
Administrative Agent, the relevant Lenders and the Borrower may agree,
or
(b) if no relevant rate appears on Reuters' Screen page no. LIBOR = or if
such Reuters' Screen page is unavailable at the relevant time the
arithmetic mean (rounded upwards, if necessary, to the nearest four
decimal places) of the respective rates, as supplied to the
Administrative Agent at its request, quoted by the Reference Banks to
prime banks in the London Interbank Market at or about 11.00 a.m. two
Business Days prior to the relevant Interest Period in an amount
comparable to the amount of the relevant Loans and for a period equal
to the Interest Period for delivery on the first day of that Interest
Period.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, encumbrance, lien (statutory or otherwise), charge against or
interest in property to secure payment of a debt or performance of an
obligation or other priority or preferential arrangement of any kind or
nature whatsoever.
"Loan" means any Lender's loans under this Agreement, whatever outstanding
or to be made.
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"Loan Documents" means, collectively, this Agreement, the Subsidiary
Security Agreement, the Agreement to Release and each other Instrument
executed by the Borrower or any Affiliate of any thereof evidencing any
obligation (monetary or otherwise) in connection with and pursuant to this
Agreement and the transactions contemplated hereby and representing
obligations incurred to any of the Finance Parties.
"Material Subsidiary" means any direct or indirect Subsidiary of the
Borrower designated as such in Item 3 ("Subsidiaries") of the Disclosure
Schedule and any other Subsidiary of the Borrower with assets in excess of
U.S.$1,000,000 (or its equivalent in any other currency).
"Materially Adverse Effect" means an effect, resulting from any occurrence
of whatever nature (including any adverse determination in any labor
controversy, litigation, arbitration or governmental investigation or
proceeding), which is materially adverse to the ability of the Borrower to
make any payment or perform any other material obligation required under
any Loan Document to which it is a party.
"Maturity" means, relative to the Loans, any date on which the Loans are
stated to be due and payable, in whole or in part, whether by required
repayment, prepayment, declaration or otherwise.
"Maturity Date" means April 10, 2001.
"MHV" means Minera Hecla Venezolana, C.A., a company organized under the
laws of Venezuela.
"MWCA" means MWCA, Inc., an Idaho corporation.
"Nationsbank Credit Agreement" is defined in the second recital.
"Net Sales Proceeds" means with respect to any Approved Sale Transaction
by any Person, the difference of (a) gross sales proceeds received by such
Person from such Approved Sale Transaction minus, (b) costs paid by such
Person for all legal, underwriting, printing, advisory, technical and
similar services in connection with such Approved Sale Transaction minus,
(c) any Indebtedness assumed or incurred by such Person in connection with
such Approved Sale Transaction.
"Obligations" means all obligations of the Borrower with respect to the
repayment or performance of all obligations (monetary or otherwise)
arising under or in connection with the Facility.
"OECD" means the Organization for Economic Cooperation and Development.
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"Organic Document" means the certificate of incorporation and by-laws of
the Borrower and all shareholder agreements, voting trusts and similar
arrangements applicable to any of its authorized shares of capital stock
or other equity interests.
"Participant" is defined in Section 10.11.2.
"Percentage" means, relative to any Lender and at any time, the ratio
(expressed as a percentage) of (i) the Principal Amount of such Lender's
Loans at such time to (ii) the Principal Amount of all the Lenders' Loans
at such time.
"Permitted Liens" means the Liens permitted pursuant to Section 7.3.3.
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency or any other entity,
whether acting in an individual, fiduciary or other capacity.
"Pledged Share Issuers" means, collectively Kentucky-Tennessee Clay
Company, a Delaware corporation, and K-T Feldspar Corporation, a North
Carolina corporation.
"Principal Amount" means the principal amount of the Loan.
"Process Agent" is defined in Section 10.13.
"Process Agent Acceptance" means a letter from the Process Agent to the
Administrative Agent, substantially in the form of Exhibit G attached
hereto.
"Regulatory Change" means the occurrence after the Effective Date of any
change in or abrogation of, or introduction, adoption, effectiveness,
interpretation, reinterpretation or phase-in of any:-
(a) statute, law, rule, or regulation applicable to any Finance Party, or
(b) guideline, interpretation, directive, consent decree, administrative
order, request or determination (whether or not having the force of
law but, if not having the force of law, such guideline, etc. being of
the type with which such Finance Party would comply in the ordinary
course of business) applicable to such Finance Party of any court,
central bank or governmental or regulatory authority charged with the
interpretation or administration of any statute, law, rule or
regulation referred to in clause (a) or of any fiscal, monetary, or
other authority having jurisdiction over such Finance Party.
18
"Related Person" means any of the Borrower and each Material Subsidiary.
"Required Lenders" means, at any time, Lenders having, in the aggregate, a
Percentage of more than sixty-six and two-thirds (66 - 2/3%).
"Requirement of Law" means, as to any Person, its Organic Documents and
any Applicable Law or Contractual Obligation binding on or applying to
such Person.
"Securities Pledge and Letter of Credit Agreement" means securities pledge
and letter of credit agreement dated on or about the date hereof between
the Borrower and Bank of America.
"Standard Bank" is defined in the preamble.
"Subsidiary" means with respect to any Person, any corporation at least a
majority or more of the outstanding shares of capital stock of which
having ordinary voting power to elect a majority of the board of directors
or other governing body of such corporation (irrespective of whether at
the time capital stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any contingency)
is at the time owned by such Person, by such Person and one or more other
Subsidiaries of such Person, or by one or more other Subsidiaries of such
Person.
"Subsidiary Security Agreement" means the Agreement created by Hecla
Mining, as grantor, and the Collateral Agent, substantially in the form of
Exhibit E attached hereto.
"Tax Credit" is defined in Section 4.7(b).
"Tax Payment" is defined in Section 4.7(b).
"Taxes" means any present or future income, franchise, excise, stamp or
other taxes, fees, duties, withholdings or other charges of any nature
imposed by any taxing authority of any jurisdiction.
"Termination Event" means (a) the occurrence with respect to any ERISA
Plan of (i) a reportable event described in Sections 4043(b)(5) or (6) of
ERISA or (ii) any other reportable event described in Section 4043(b) of
ERISA other than a reportable event not subject to the provision for 30-
day notice to the Pension Benefit Guaranty Corporation pursuant to a
waiver by such corporation under Section 4043(a) of ERISA, or (b) the
withdrawal of any ERISA Affiliate from an ERISA Plan during a plan year in
which it was a "substantial employer" as defined in Section 4001(a)(2) of
ERISA, or (c) the filing of a notice of intent
19
to terminate any ERISA Plan or the treatment of any ERISA Plan amendment
as a termination under Section 4041 of ERISA, or (d) the institution of
proceedings to terminate any ERISA Plan by the Pension Benefit Guaranty
Corporation under Section 4042 of ERISA, or (3) any other event or
condition which might constitute grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any
ERISA Plan.
"U.S. GAAP" is defined in Section 1.3.
1.2 Use of Defined Terms
Unless otherwise defined or the context otherwise requires, terms for
which meanings are provided in this Agreement shall have such meanings
when used in this Agreement and each notice and other communication
delivered from time to time in connection therewith.
1.3 Accounting and Financial Determinations
Unless otherwise specified, all accounting terms used herein or in any
other Loan Document shall be interpreted, all accounting determinations
and computations hereunder or thereunder shall be made, and all financial
statements required to be delivered hereunder or thereunder shall be
prepared in accordance with, generally accepted accounting principles in
the U.S. ("U.S. GAAP").
1.4 Change in Accounting Principles
If, after the Effective Date, there shall be any material change to the
Borrower's Fiscal Year, or in the application of the accounting principles
used in the preparation of the financial statements referred to in Section
6.4 as a result of the promulgation of rules, regulations, pronouncements
or opinions by agencies having jurisdiction over financial reporting and
accounting standards which changes result in a change in the method of
calculation of, or have an adverse impact on, financial standards or terms
applicable to the Borrower found in this Agreement or any other Loan
Document, the Borrower and the Administrative Agent agree promptly to
enter into negotiations in order to amend such financial standards or
terms so as to reflect equitably such changes with the desired result that
the evaluations of the Borrower's financial condition shall be the same
after such changes as if such changes had not been made; provided,
however, that until the Required Lenders have given their consent (such
consent not to be unreasonably withheld, conditioned or delayed) to the
Administrative Agent to such amendments, such Borrower's financial
condition shall continue to be evaluated on the same principles as those
used in the preparation of the financial statements of the Borrower
referred to in Section 6.4.
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1.5 General Provisions as to Certificates and Opinions, etc.
Whenever the delivery of a certificate is a condition precedent to the
taking of any action by either Agent or any Lender hereunder, the truth
and accuracy of the facts and the diligent and good faith determination of
the opinions stated in such certificate shall in each case be conditions
precedent to the right of the Borrower to have such action taken, and any
certificate executed by the Borrower shall be deemed to represent and
warrant that the facts stated in such certificate are true and accurate as
of the date stated.
1.6 Interpretation
Unless a clear contrary intention appears, this Agreement and each other
Loan Document shall be construed and interpreted in accordance with the
provisions set forth below:-
(a) the singular number includes the plural number and vice versa;
(b) reference to any Person includes such Person's successors, executors,
administrators, substitutes and assigns but, if applicable, only if
such successors, executors, administrators, substitutes and assigns
are permitted by this Agreement or such other Loan Document, and
reference to a Person in a particular capacity excludes such Person in
any other capacity or individually;
(c) reference to any gender includes any other gender;
(d) reference to any agreement, document or Instrument means such
agreement, document or Instrument as amended, supplemented, novated,
refinanced, replaced, waived, restated or modified, and in effect from
time to time in accordance with the terms thereof and, if applicable,
the terms hereof;
(e) reference to any promissory note includes any promissory note which is
an extension or renewal thereof or a substitute or replacement
therefor;
(f) reference to any Applicable Law means such Applicable Law as amended,
modified, codified or re-enacted, in whole or in part, and in effect
from time to time, including rules and regulations promulgated
thereunder;
(g) "hereunder", "hereof", "hereto", "herein" and words of similar import
shall be deemed references to this Agreement or such other Loan
Document, as the case may be, as a whole and not to any particular
Article, Section, clause or other provision hereof or thereof;
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(h) any reference to any particular Article, Section or clause shall be to
such Article, Section or clause of this Agreement or such other Loan
Document;
(i) "including" means including without limiting the generality of any
description preceding such term;
(j) relative to the determination of any period of time, "from" means
"from (and including)" and "to" means "to (but excluding)";
(k) any reference to a time of day is a reference to London time;
(l) reference to a "company" or "corporation" shall be construed as a
reference to the analogous form of business entity used in any
relevant jurisdiction;
(m) when an expression is defined, another part of speech or grammatical
form of that expression has a corresponding meaning; and
(n) any reference to the "knowledge" of the Borrower or its Authorized
Representative with respect to a certain matter means either such
Person's actual knowledge with respect to such matter or that of which
a Person, in the position of the Borrower or Authorized Representative
and acting reasonably, would be expected to have knowledge.
2. COMMITMENTS AND PROCEDURES FOR MAKING LOANS; CONTINUATION PROCEDURES
2.1 Commitments; Making Loans
(a) Subject to the terms and on the conditions of this Agreement, the
Lenders agree that their Commitments consist of obligations to make,
maintain and/or continue Loans, in an amount not to exceed the
Aggregate Commitment Amount (for all the Lenders) or each Lender's
Commitment Amount. The Loans may be made on a single Borrowing Date
during the period from the Effective Date to the Commitment
Termination Date.
(b) By delivering a Borrowing Notice to the Administrative Agent on or
before 10:00 a.m., the Borrower may request on any Business Day during
the period described in clause (a), on not less than three nor more
than five Business Days' notice (counting the date on which such
notice is given), that Loans be made by all Lenders on the Borrowing
Date set forth in such Borrowing Notice in a principal amount equal to
the Aggregate Commitment Amount then in effect. Upon receipt of a
Borrowing Notice requesting Loans to be made, the Administrative Agent
shall promptly notify each Lender of the contents thereof, and such
Borrowing Notice shall not thereafter be revocable by the Borrower.
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(c) Subject to the terms and conditions of this Agreement, the Loans
requested to be made in the relevant Borrowing Notice shall be made on
the specified Borrowing Date. On such Borrowing Date and subject to
such terms and conditions, each Lender shall, on or before 10:00 a.m.,
credit a specifically designated account of the Administrative Agent
at its Lending Office, with an amount of Dollars equal to such
Lender's Percentage of the aggregate Principal Amount of the Loans
requested to be made. To the extent funds are received by the
Administrative Agent from the Lenders in respect of the Loans as
requested pursuant to the relevant Borrowing Notice, the
Administrative Agent shall make such funds available to the Borrower
(or to such accounts as the Borrower may direct, including accounts of
Bank of America and Standard Bank in order to repay the Indebtedness
(except as set forth in Section 7.3.2(l)) then outstanding under the
Nationsbank Credit Agreement and (if the Borrower shall request) the
Existing Standard Credit Agreement) by crediting the Principal Amount
of such Loans to such account of the Borrower as it may direct.
(d) The Borrower may, from time to time on any Business Day prior to the
Commitment Termination Date upon which there then remains any portion
of the Aggregate Commitment Amount, voluntarily reduce the Aggregate
Commitment Amount, as then in effect, in whole or, if in part, in
multiples of U.S.$1,000,000; provided, however, that the Borrower
shall give the Administrative Agent not less than three or nor more
then five Business Days prior written notice (counting the date on
which such notice is given) of any such reduction which notice shall
be irrevocable once given. On the Commitment Termination Date, the
Aggregate Commitment Amount (if still remaining) shall, automatically,
and without any action by any Person be reduced to zero.
2.2 Continuation Elections
(a) To continue all or part of a Loan for the same (or for a different)
Interest Period, the Borrower must deliver a Continuation Notice to
the Administrative Agent no later than 10.00 a.m. five Business Days
prior to the expiration of the relevant Interest Period then in
effect. To the extent the Borrower wishes to issue a Continuation
Notice with respect to part (but not all) of the Loans, such
Continuation Notice must relate to Loans in an aggregate Principal
Amount of multiples of U.S.$1,000,000, and a maximum of four Interest
Periods with respect to the Loans may be outstanding at any one time
after giving effect thereto.
(b) (i) Each new Interest Period will commence on the expiration of the
preceding Interest Period relating to all or that portion of
those Loans made pursuant to a Borrowing Notice or continued
pursuant to a Continuation Notice.
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(ii) If the Borrower fails to deliver a Continuation Notice as and
when required, it, subject as provided in clauses (d) and (e) of
the definition of "Interest Period", will be deemed to have
requested that any then current Loan be continued for an Interest
Period that is the same as the duration of the Interest Period
then currently in effect with respect to that Loan.
(c) A Continuation Notice once given shall be irrevocable.
2.3 Records
Each Lender's Loans shall be evidenced by loan accounts maintained by such
Lender. The Borrower hereby irrevocably authorizes each Lender to make (or
cause to be made) appropriate account entries, which account entries, if
made, shall evidence inter alia the date of, the type of, the principal
amount of, any repayments of, the interest rate on, and the Interest
Period applicable to, the Loans then outstanding to such Lender. Any such
account entries indicating the outstanding Principal Amount of Loans
outstanding to such Lender shall be prima facie evidence of the Principal
Amount thereof owing and unpaid, but the failure to make any such entry
shall not limit or otherwise affect the obligations of the Borrower
hereunder to make payments of the amount of, or interest on, such Loans
when due. The Administrative Agent shall also maintain records with
respect to each of the matters set forth in the first sentence of this
Section and each other party hereto agrees to deliver such information to
the Administrative Agent as it may reasonably request for the purpose of
maintaining such records. In case of any discrepancy between the records
of the Administrative Agent and the records of any Lender with respect to
any matter referred to in this Section, the records of such Lender shall
be deemed to control.
2.4 Funding
Each Lender may, if it so elects, but subject to Applicable Law, fulfil
its obligation to make, maintain or continue any portion of its Loans by
causing an offshore branch, Affiliate or banking facility of such Lender
to make, maintain or continue such Loans; provided, however, that in such
event any Loans shall be deemed to have been made by such Lender, and the
obligation of the Borrower to repay such Loan, and pay interest thereon,
shall nevertheless be to such Lender and shall be deemed to be held by it,
to the extent of such Loan, for the account of such foreign branch,
Affiliate or international banking facility; and provided, further,
however, that the Borrower shall be under no obligation to pay any amount
to such Lender pursuant to Section 4.1, 4.2, 4.3, 4.4, 4.5 or 4.6 which
arises solely as a consequence of an election made by such Lender pursuant
to this Section.
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2.5 Obligations Several
The obligations of the Lenders to make, maintain and/or continue Loans
under this Article are several. No Lender's obligation under this Article
shall be affected by any other Lender's failure to meet its obligations
hereunder.
3. PRINCIPAL PAYMENTS; INTEREST; FEES
3.1 Principal Payments
3.1.1 Scheduled Repayment
The Borrower shall repay the Principal Amount of the Loans in full on
the Maturity Date.
3.1.2 Prepayment - Mandatory
The Borrower shall repay the Principal Amount of the Loans (whether in
whole or in part, but if in part, in multiples of U.S. $1,000,000) within
five (5) Business Days after the effective financial closing date (however
described) of any Approved Sale Transaction to the extent of all Net Sale
Proceeds received therefrom.
3.1.3 Prepayments - Voluntary
In addition to its obligations under Sections 3.1.1 and 3.1.2, the
Borrower may, from time to time on any Business Day (subject to Section
4.3) make a voluntary prepayment, in whole or in part, of the then
outstanding Principal Amount of all Loans; provided, however, that:
(a) the Borrower shall give the Administrative Agent not less than five
Business Days' prior written notice (counting the date on which such
notice is given) of any such voluntary prepayment, which notice, once
given, shall be irrevocable; and
(b) all such partial voluntary prepayments shall be in an aggregate
Principal Amount of multiples of U.S.$1,000,000.
3.1.4 Principal Payments Generally
(a) Each repayment or prepayment of any Loans made pursuant to this
Section shall be without premium or payment of any other additional
amount, except as may be required pursuant to Section 4.3. Amounts
repaid or prepaid may not be re-borrowed. Any repayment or
prepayment of the Principal Amount of any Loans shall include accrued
interest on the date of repayment or prepayment on the Principal
Amount being repaid or prepaid.
(b) Loans required to be repaid or prepaid pursuant to this Section shall
be paid in Dollars.
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3.2 Interest Payments
The Borrower shall make payments of interest in accordance with this
Section.
3.2.1 Rate
The Borrower shall pay interest on the Principal Amount of the Loans
outstanding from time to time) at a rate per annum equal to the sum of
(i) the LIBO Rate, (ii) the Applicable Margin plus (iii) the Additional
Costs Rate, if relevant.
3.2.2 Post-Maturity Rate
After the Maturity of all or any portion of the Principal Amount of the
Loans or after any other Obligations shall have become due and not been
paid, the Borrower shall pay interest (after as well as before judgment) on
the Principal Amount of each Loan so matured or on any such other
Obligations, at a rate per annum equal to the sum of (i) the LIBO Rate for
such Interest Periods (of a minimum of three months) as the Administrative
Agent may from time to time select, (ii) the Applicable Margin, (iii) the
Additional Costs Rate (if relevant) plus (iv) two percent (2%).
3.2.3 Payment Dates; Calculation of Interest
Interest accrued on each Loan shall be payable, without duplication, on:
(a) the last day of each Interest Period with respect to such Loan (and,
in addition to such day, if such Interest Period shall exceed three
months, on each date which is the last day of each successive three-
monthly period occurring during such Interest Period);
(b) the Maturity of such Loan; and
(c) with respect to any portion of any Loan repaid or prepaid pursuant to
Section 3.1 or 4.5 the date of such repayment or prepayment, as the
case may be.
Interest accrued on each Loan after the Maturity thereof and interest on
other overdue amounts, shall be payable upon demand. The amount of
accruing interest on any Loans shall be calculated during each Interest
Period applicable thereto by the Administrative Agent on the daily
outstanding principal amount of such Loans. All interest shall be
computed on the basis of the actual number of days (including the first
26
day but excluding the last day) during the period for which such interest
is payable over a year comprised of 360 days. Subject to clauses (d) and
(e) of the definition of "Interest Period", whenever any payment to be
made shall otherwise be due on a day which is not a Business Day, such
payment shall be made on the next succeeding Business Day and such
extension of time shall be included in computing interest, if any, in
connection with such payment.
3.2.4 Rate Determinations
All determinations by the Administrative Agent of the rate of interest
applicable to any Loan shall be conclusive absent demonstrated error.
3.3 Fees
The Borrower confirms and agrees that it will pay to the Administrative
Agent such underwriting, arrangement and agency fees (in such amounts, on
such dates and pursuant to such terms) for the account of the
Administrative Agent as are described in a letter of even date herewith
from the Borrower to the Administrative Agent.
4. INCREASED COSTS; TAXES; MARKET DISRUPTIONS; GENERAL PAYMENT PROVISIONS
4.1 Dollars Unavailable
(a) If, at any time that the Administrative Agent shall be required to
make any determination of the LIBO Rate for any Interest Period and it
shall have determined or shall have been notified (for any reason
whatsoever) that in the case of any Loans outstanding or to be
outstanding during such Interest Period, either (x) Dollar
certificates of deposit or Dollar deposits, as the case may be, in the
relevant amount and for the relevant Interest Period are not available
to the Lenders in the London interbank market, or (y) by reason of
circumstances affecting the Lenders in the London interbank market,
adequate means do not exist for ascertaining the interest rate
applicable hereunder to such Loan, then the Administrative Agent shall
promptly give telephonic notice of such determination confirmed in
writing to the Borrower (which determination shall, in the absence of
demonstrated error, be conclusive and binding on the Borrower).
(b) As soon as practicable following the giving of the notice described in
clause (a), the Administrative Agent, the affected Lenders acting
reasonably and the Borrower shall negotiate for a period not exceeding
30 days with a view to agreeing to an alternative basis for making or
maintaining the Loans affected by the circumstances described in
clause (a). During such period interest shall accrue on the principal
amount of each affected
27
Lender's affected Loans at the rate applicable to such Loans
immediately prior to the giving of such notice. If no such
alternative basis is agreed within such time period, each affected
Lender's affected Loans shall bear interest at a rate per annum equal
to the sum of (i) the cost to such Lender of funding such Loans (as
determined by such Lender which determination shall, in the absence of
demonstrated error, be conclusive and binding on the Borrower), (ii)
the Applicable Margin plus (iii) the Additional Costs Rate as in
effect from time to time with respect to such Lender.
4.2 Increased Costs, etc.
(a) The Borrower agrees to reimburse each Lender for any increase (other
than as specifically covered in any other Section of this Article) in
the cost to such Lender of making, continuing or maintaining (or of
its obligation to make, continue or maintain) any Loans, and for any
reduction (other than as specifically covered in any other Section of
this Article) in the amount of any sum receivable by such Lender
hereunder in respect of making, continuing or maintaining any portion
of any such Loans in either case, from time to time by reason of any
Regulatory Change (including, solely with respect to any Lender that
is a bank or commercial financial institution, with respect to
Regulation D of the F.R.S. Board but excluding the Additional Costs
Rate (if relevant)), then, in any such event, such Lender shall
promptly notify the Administrative Agent and the Borrower thereof
stating in reasonable detail the reasons therefor and the additional
amount required fully to compensate such Lender for such increased
cost or reduced amount. Such notice shall, in the absence of
demonstrated error, be conclusive and binding on the Borrower.
(b) As soon as practicable following the giving of any notice described in
clause (a), the affected Lender, the Administrative Agent and the
Borrower shall negotiate for a period not exceeding 30 days with a
view to avoiding or minimizing the circumstances described in clause
(a). If no steps mutually agreeable to the affected Lender, the
Administrative Agent and the Borrower are decided within such 30 day
period, the Borrower may elect either to prepay the principal amount
of and interest on such affected Lender's then outstanding Loans
(subject, however, to Section 4.3) or pay, within five days after the
expiry of such 30 day period, any additional amount required fully to
compensate such affected Lender for the increased cost or reduced
amount described in clause (a).
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4.3 Funding Losses
In the event that any Lender shall incur any loss or expense (including
any loss or expense incurred by reason of the liquidation or reemployment
of Dollar deposits or other funds acquired by such Lender to make,
continue or maintain any portion of the Principal Amount of any Loan) as a
result of:-
(a) any payment or prepayment of the Principal Amount of Loans on a date
other than as and when required, whether pursuant to Section 3.1 or
otherwise; or
(b) any action of the Borrower resulting in any Loans not being made or
continued, in accordance with the Borrowing Notice or Continuation
Notice, as the case may be, as given therefor,
then, upon the request of such Lender to the Borrower (with a copy to the
Administrative Agent) the Borrower shall pay to the Administrative Agent
for the account of such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss or
expense. A statement as to any such loss or expense (including
calculations thereof in reasonable detail) shall be submitted by such
Lender to the Administrative Agent and the Borrower and shall, in the
absence of demonstrated error, be conclusive and binding on the Borrower.
4.4 Increased Capital Costs
(a) If any Regulatory Change affects or would affect the amount of capital
required to be maintained by any Lender which is a bank or commercial
financial institution or any Person controlling such Lender, and such
Lender determines (in its reasonable discretion) that the rate of
return on its or such controlling Person's capital is reduced to a
level below that which such Lender or such controlling Person could
have achieved but for the occurrence of any such Regulatory Change,
then, in any such case upon notice from time to time by such Lender to
the Borrower, the Borrower may, at its option (i) within five days of
receipt of such notice, pay directly to such Lender additional amounts
sufficient to compensate such Lender or such controlling Person for
the portion of such reduction in rate of return which is reasonably
allocable to the Facility or (ii) prepay the principal amount of and
interest on such affected Lender's then outstanding Loans (subject,
however, to Section 4.3). A statement of such Lender as to any such
additional amount or amounts (including calculations thereof in
reasonable detail) shall, in the absence of demonstrated error, be
conclusive and binding on the Borrower. In determining such amount,
such Lender may use any method of averaging and attribution that it
(in its reasonable discretion) shall deem applicable.
29
(b) Notwithstanding clause (a), the Borrower shall not be obligated to pay
any amount to any Lender in respect of any such reduction in the rate
of return or increased cost which arises as a consequence of (i) any
law or directive implementing the proposals for international
convergence of capital measurement and capital standards published by
the Basle Committee on Banking Regulations and Supervisory Practices
in July 1988 and/or (ii) the Council of the European Communities
Directive of April 17, 1989, on the own funds of credit institutions
(89/299/EC) and the Council of the European Communities Directive of
December 18, 1989, on a solvency ratio for credit institutions
(89/647/EC) to the extent that the impact of any such law or directive
can reasonably be calculated at the Effective Date. In addition, no
Lender may make any claim for compensation in respect of any such
reduction in return or increased cost to the extent that a
notification of the event leading to such reduction in the rate or
return or increased cost is not given to the Borrower within six
months of such Lender's obtaining knowledge thereof.
4.5 Illegality
(a) If, as the result of any Regulatory Change, any Lender shall determine
(which determination, in the absence of demonstrated error, shall be
conclusive and binding on the Borrower) that it is unlawful for such
Lender to make any Loan or the obligations of such Lender to make such
Loan shall, upon such determination (and telephonic notice thereof
confirmed in writing to the Administrative Agent and the Borrower),
forthwith be suspended until such Lender shall become aware that the
circumstances causing such suspension no longer exist and shall
forthwith notify the Administrative Agent and the Borrower to such
effect, at which time the obligation of such Lender to make such Loan
shall be reinstated.
(b) If, as the result of any Regulatory Change, any Lender shall determine
(which determination, in the absence of demonstrated error, shall be
conclusive and binding on the Borrower) that it is unlawful for such
Lender to continue its Loan, then, upon notice by such Lender to the
Administrative Agent and the Borrower, such Lender shall consult with
the Borrower and the Administrative Agent for a period of up to 30
days from the date of such notice, with a view to agreeing upon a
mutually acceptable alternative arrangement which will avoid or
minimize such illegality. If, no steps mutually agreeable to the
affected Lender, the Administrative Agent and the Borrower are decided
within such 30 day period, the Borrower may, at its option, to the
extent not prohibited from doing so by the relevant illegality or
unlawfulness, continue such Lender's then outstanding Loans or
30
prepay, within five days after the expiry of such 30 day period
(unless required to do so prior thereto) the principal amount of and
interest on such affected Lender's then outstanding Loans (subject,
however, to Section 4.3).
(c) If the relevant illegality or unlawfulness makes it unlawful for a
Lender to maintain its Loan, then upon notice by such Lender to the
Administrative Agent and the Borrower, the Borrower shall, as soon as
practicable after receiving such notice, prepay the Principal Amount
of any interest on such affected Lender's outstanding Loans (subject,
however, to Section 4.3)
4.6 Taxes
All payments by the Borrower of principal of, and interest on, the Loans
and all other amounts payable pursuant to the relevant Finance Parties
shall be made free and clear of, and without deduction for any Taxes
(other than franchise taxes and taxes imposed on or measured by the
recipient's net income or receipts). In the event that any withholding or
deduction from any payment to be made by the Borrower hereunder or under
any other Loan Document is required in respect of any such Taxes pursuant
to any Applicable Law, then the Borrower will:-
(a) pay directly to the relevant authority the full amount to be so
withheld or deducted;
(b) promptly forward to the Administrative Agent an official receipt or
other documentation satisfactory to the Administrative Agent
evidencing such payment to such authority; and
(c) pay to the Administrative Agent for the account of each Person
entitled thereto such additional amount or amounts as is necessary to
ensure that the net amount actually received by such Person will be
equal to the full amount such Person would have received had no such
withholding or deduction been required.
Moreover, if any such Taxes are directly asserted against any Finance
Party with respect to any payment received by such Finance Party, such
Finance Party may pay such Taxes and the Borrower will promptly pay such
additional amounts (including any penalties, interest or expenses) as is
or are necessary in order that the net amount received by such Person
after the payment of such Taxes (including any Taxes on such additional
amount) shall equal the amount such Person would have received had such
Taxes not been asserted.
31
If the Borrower fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent, for its own
account and/or, as the case may be, the account of the relevant Finance
Party, the required receipts or other required documentary evidence, the
Borrower shall indemnify the Administrative Agent or the relevant Finance
Party, as the case may be, for any incremental Taxes, interest or
penalties that may become payable by any such Person as a result of any
such failure. For the purposes of this Section, a distribution hereunder
or under any other Loan Document by the Administrative Agent or any
Finance Party, as the case may be, to or for the account of any Finance
Party shall be deemed a payment by the Borrower.
The Finance Parties agree to co-operate with the Borrower in completing
and delivering or filing tax-related forms which would reduce or eliminate
any amount of the nature referred to in this Section; provided, however,
that no Finance Party shall be under any obligation to execute and deliver
any such form if, in the reasonable opinion of such Finance Party,
completion of any such form could result in an adverse consequence with
respect to the business or tax position of such Finance Party.
4.7 Mitigation
(a) In the event that the Borrower makes payment of any amount pursuant to
Section 4.4 or 4.6 or that any Lender seeks payment of an amount
pursuant to Section 4.4 or 4.6 or because of circumstances resulting
in the 30 day negotiation period described in Section 4.1(b), 4.2(b)
or 4.5(b), such affected Lender agrees that it will take such
reasonable steps as may reasonably be open to it to mitigate the
effects of the circumstances described in the foregoing Sections (such
steps to include the transfer of such Lender's Lending Office to
another jurisdiction and the application for a Tax Credit); provided,
however, that no Lender shall be obligated to (i) take any such steps
if, in its opinion, such steps would require it to achieve less than
its expected return with respect to the Facility or would have an
adverse effect upon its assets or financial condition or (ii) achieve
any particular result or incur any liability to the Borrower by virtue
of any such steps resulting in less than complete mitigation of the
relevant circumstances.
(b) If, pursuant to clause (a), any Lender effectively obtains a refund of
tax or credit (a "Tax Credit") against a payment made by the Borrower
pursuant to Section 4.6 (a "Tax Payment"), and such Lender is able to
identify such Tax Credit as being attributable to such Tax Payment,
then such Lender, after actual receipt of such Tax Credit, shall
reimburse the Borrower for such amount as such Lender shall reasonably
determine to be the proportion of
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such Tax Credit as shall be reasonably attributable to such Tax
Payment; provided, however, that no Lender shall be required to make
any such reimbursement which would cause it to lose the benefit of
such Tax Credit or would otherwise adversely affect any matter
relating to such Lender in connection with the assessment or payment
of any Taxes. If any Lender shall claim any Tax Credit pursuant to
this Section, it shall have absolute discretion in the extent, order
and manner in which it does so. No Lender shall be obligated to
disclose information regarding its tax affairs or computations to the
Borrower.
4.8 Payments, Computations, etc.
(a) All payments by the Borrower pursuant to this Agreement or any other
Loan Document shall be paid in Dollars, except as specifically set
forth therein. All payments under this Agreement or any other Loan
Document shall be made by the Borrower to the Administrative Agent for
the account of each Finance Party entitled thereto.
(b) All payments under the Facility shall be made by the Borrower to the
Administrative Agent for the account of each Finance Party entitled
thereto, by delivery of Dollars in immediately available funds to an
account of the Administrative Agent in New York City at the
Administrative Agent's Lending Office, which account shall be
designated from time to time by notice to the Borrower from the
Administrative Agent, for the account of each Finance Party entitled
thereto and, if such payment shall be of less than the amount of the
relevant payment Obligation then due and owing, for the pro rata
benefit of each Finance Party entitled to share in such payment in
accordance with its respective portion of the aggregate unpaid amount
of similar payment Obligations. All such payments shall be made,
without setoff, deduction, or counterclaim, not later than 11:00 a.m.,
New York City time, on the date when due. Any payments received
hereunder after the time and date specified in this Section shall be
deemed to have been received by the Administrative Agent on the
next following Business Day. The Administrative Agent shall promptly
remit to each Finance Party its share (calculated as aforesaid), if
any, of such payments. Such remittance shall be to an account
designated by such Finance Party to the Administrative Agent by notice
from time to time and maintained at its Lending Office.
4.9 Proration of Payments
If any Lender shall obtain any payment or other recovery (whether
voluntary, involuntary, by application of setoff, or otherwise) on account
of the principal amount of or interest on any Loan in excess of its pro
rata share of payments then or therewith obtained by all
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Lenders entitled thereto upon the principal amount of and interest on all
Loans, such Lender shall purchase from the other Lenders such
participations in Loans held by them as shall be necessary to cause such
purchasing Lender to share the excess payment or other recovery rateably
with each of them; provided, however, that if all or any portion of the
excess payment or other recovery is thereafter recovered from such
purchasing holder, the purchase shall be rescinded and the purchase price
restored to the extent of such recovery, but without interest. The
Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section may, to the fullest extent permitted by
Applicable Law, exercise all its rights of payment (including pursuant to
Section 4.10) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of such
participation. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim under the Facility in
lieu of a setoff to which this Section applies, such Lender shall, to the
extent practicable, exercise its rights in respect of such secured claim
in a manner consistent with the rights of the Lenders entitled under this
Section to share in the benefit of any recovery on such secured claim.
4.10 Set-off
In addition to and not in limitation of any rights of any of the Finance
Parties under Applicable Law, each Finance Party (or any branch thereof)
shall, upon the occurrence of any Enforcement Event, have the right to
appropriate and apply to the payment of the Obligations owing to it
(whether or not then due), any and all balances, credits, deposits,
accounts or moneys of the Borrower then or thereafter maintained with such
Finance Party in whatever currency (and, as security for the Obligations
owing to each such Finance Party, but not to the exclusion of any other
rights such Finance Party may have, the Borrower hereby grants to each
such Finance Party a continuing security interest in any and all balances,
etc., as aforesaid); provided, however, that any such appropriation and
application shall be subject to the provisions of Section 4.9.
4.11 Application of Proceeds
(a) If at any time any amount (including any proceeds received in respect
of any sale of, collection from, or other realization upon, all or any
part of any collateral security subject of the Subsidiary Security
Agreement) received by either Agent is less than the amount then due
and payable pursuant to this Agreement or any other Loan Document such
amount may, in the discretion of the Administrative Agent, be held by
the Administrative Agent as additional collateral security for, or then
or at any time thereafter be applied (after payment of any amounts
payable to the Agents pursuant to Sections 10.3 and 10.4 and similar
provisions contained in the other Loan Documents) in whole or in
part by the Administrative Agent against, all or any part of the
Obligations in the following order:-
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(i) first, to amounts outstanding to the Finance Parties under any
Loan Document in respect of any amount other than interest on,
or the Principal Amount of, any Loan;
(ii) second, pro rata to amounts outstanding to the Finance Parties
under any Loan Document in respect of interest on any Loan; and
(iii) third, pro rata to amounts outstanding to the Finance Parties
under any Loan Document in respect of the Principal Amount of
any Loan.
(b) Any surplus of such cash or cash proceeds held by the Administrative
Agent and remaining after payment in full of all the Obligations, and
the termination of all Commitments (if not then already terminated),
shall be paid over to or to whomsoever may be lawfully entitled to
receive such surplus.
5. CONDITIONS PRECEDENT TO MAKING LOANS
5.1 Initial Loans
The obligations of the Lenders to make the Loans shall be subject to the
prior or concurrent satisfaction of each of the conditions precedent set
forth in this Article. Unless specifically stated to the contrary, each
document, certificate and other Instrument delivered pursuant to this
Section shall be dated on, or prior to, and shall be in full force and
effect on, the Borrowing Date.
The Administrative Agent shall have received:
5.1.1 Resolutions, etc.
(a) a certificate of an Authorized Representative of the Borrower to the
effect that (i) the representations of the Borrower set forth in each
Loan Document to which it is a party shall be true and correct as at
both the Effective Date and the Borrowing Date (after giving effect to
the making of the Loans) and (ii) no Default shall have then occurred
and be continuing; and
(b) a certificate of the Secretary or similar officer of the Borrower as
to:
(i) resolutions of its Board of Directors or similar body then in force
and effect authorizing the execution, delivery and performance of
each Loan Document and any other document to be executed by it in
connection with the transactions contemplated thereby;
(ii) the incumbency and signatures of those of its officers authorized
to act with respect to each Loan Document and any other document
executed or to be executed by it; and
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(iii) its Organic Documents as then in effect,
upon which certificate the Administrative Agent may conclusively rely
until it shall have received a further certificate of the Secretary or
similar officer of the relevant Person cancelling or amending such prior
certificate.
5.1.2 Agreement to Release, etc.
(a) counterparts of the Agreement to Release, duly executed by Bank of
America, Hecla Mining and the Collateral Agent; and
(b) evidence that, subject only to payment of that portion of the Loans
allocated to repaying the Nationsbank Credit Agreement, the collateral
(designated by the Collateral Agent to be security under the
Subsidiary Security Agreement) securing the Nationsbank Credit
Agreement prior to the Borrowing Date is to be released in favor of
the Borrower and, in addition, satisfactory provisions for the
delivery to the Collateral Agent of that collateral which is in
certificated form shall have been made.
5.1.3 Subsidiary Security Agreement
(a) counterparts of the Subsidiary Security Agreement, duly executed by
the Collateral Agent and an Authorized Representative of the Borrower;
(b) evidence of the delivery (or provision for delivery) of all the shares
of capital stock of the Pledged Share Issuers, together with stock
powers executed in blank; and
(c) evidence that all filings and registrations required under the laws of
New York (or provision for the same) shall have been duly made.
5.1.4 Progress Agent Acceptance
Counterparts of the Process Agent Acceptance, duly executed by the Process
Agent, together with the evidence of the appointment of the Process Agent
by the Borrower.
5.1.5 Opinions
Opinions of:
(a) Debevoise & Xxxxxxxx, New York counsel to the Finance Parties,
substantially in the form of Exhibit F-1 attached hereto; and
(b) Xxxxxxx X. Xxxxx, Vice President, General Counsel and Secretary to the
Borrower, substantially in the form of Exhibit F-2 attached hereto.
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5.1.6 Borrowing Notice
The Administrative Agent shall have received a Borrowing Notice relating
to the Loans, executed by an Authorized Representative of the Borrower.
5.1.7 Concerning the Industrial Revenue Bonds
The Administrative Agent shall have received copies of documents relating
to the Industrial Revenue Bonds, together with the Securities Pledge and
Letter of Credit Agreement and the Account Control Agreement.
5.1.8 Closing Fees, Expenses, etc.
The Administrative Agent shall have received (including, to the extent
necessary, from the proceeds of the Loans to be made on the Borrowing
Date) for the account of the Finance Parties entitled thereto, all fees
and expenses (including those of the Agent's advisors then invoiced) due
and payable on or prior to such Borrowing Date.
5.1.9 Compliance with Warranties, No Defaults, etc.
The representations and warranties of the Borrower set forth in Article 6
and in all other Loan Documents shall be true and correct as of the date
initially made, and both immediately before and after the making of the
requested Loans:
(a) such representations and warranties shall be true and correct with the
same effect as if then made (unless stated to relate solely to an
earlier date, in which case such representations and warranties shall
be true and correct as of such earlier date); and
(b) no Default shall have then occurred and be continuing.
6. REPRESENTATIONS AND WARRANTIES
In order to induce the Finance Parties to enter into this Agreement and to
make, maintain and/or continue the Loans hereunder, the Borrower,
individually for itself and with respect to matters hereinafter relating
to it, represents and warrants unto each of the Finance Parties, in each
case as set forth in this Article. The representations and warranties set
forth in this Article shall be made on the Effective Date and upon the
delivery of the Borrowing Notice and shall be deemed to be made as at the
Borrowing Date.
6.1 Organization, Power, Authority, etc.
(a) The Borrower is a corporation duly incorporated, validly existing and
in good standing under the laws of Delaware.
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(b) The Borrower is qualified to do business and is in good standing
(where such concept is applicable) as a foreign company in each
jurisdiction where the nature of its business makes such qualification
necessary and has full power and authority, and holds all requisite
Approvals, to own and hold under lease its property and to conduct its
business substantially as currently conducted by it. The Borrower has
full power and authority to enter into and perform its obligations
under this Agreement and the other Loan Documents executed or to be
executed by it.
6.2 Due Authorization; Non-Contravention
The execution and delivery by the Borrower of this Agreement and each
other Loan Document executed or to be executed by it and the performance
by the Borrower of its obligations hereunder and thereunder, have been
duly authorized by all necessary corporate action on its part, do not and
will not require any Approval (other than the filings, notarizations and
registrations contemplated by this Agreement in connection with the
effectiveness, perfection and priority of the Subsidiary Security
Agreement) do not and will not conflict with, result in any violation of,
or constitute any default under, any provision of any Requirement of Law
or Approval binding on it, and will not result in or require the creation
or imposition of any Lien on any of its properties pursuant to the
provisions of any Contractual Obligation (other than pursuant to this
Agreement and the Subsidiary Security Agreement).
6.3 Validity, etc.
(a) This Agreement constitutes, and each other Loan Document executed or
to be executed by the Borrower constitutes, or on the due execution
by each party thereto and delivery thereof will constitute, the legal,
valid and binding obligation of the Borrower enforceable in accordance
with its terms, subject as to enforceability, to Applicable Laws
relating to bankruptcy and the enforceability of creditors' rights
generally and by the fact that the availability of equitable remedies
is discretionary.
(b) The Subsidiary Security Agreement will, upon the taking of the various
actions described hereunder and thereunder, create in favor of the
stated beneficiary or secured party (howsoever denominated)
thereunder, a valid and perfected first-priority Lien on all of the
assets, properties and rights purported to be covered thereby as
security for the relevant obligations expressed to be covered thereby,
subject to no Liens, except (i) Permitted Liens and (ii) for the
specific exceptions set forth in the legal opinions delivered pursuant
to this Agreement.
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6.4 Financial Information
All balance sheets and all other financial information of the Borrower
which have been furnished by it to the Administrative Agent for the
purposes of or in connection with this Agreement or any transaction
contemplated hereby, including:-
(a) the consolidated balance sheet (in substantially final form) at
December 31, 1999 and the related consolidated statements of
operations and cashflows, loss and deficit and change in financial
position for the Fiscal Year then ended, of Hecla Mining and its
Subsidiaries in respect of which an opinion was given by
PricewaterhouseCoopers LLC; and
(b) the consolidated balance sheet at September 30, 1999 and the related
consolidated statement of profit and loss and cashflows for the
Fiscal Quarter then ended, of Hecla Mining and its Subsidiaries,
certified by the principal financial or accounting Authorized
Representative of Hecla Mining,
have been prepared in accordance with U.S. GAAP consistently applied
throughout the periods involved (except as disclosed therein) and do
present fairly (subject in the case of interim financial statements to
year-end audit adjustments) the financial position of the Borrower as at
the dates thereof and the results of its operations for the periods then
ended. The Borrower on the date hereof does not have any material
Contingent Liability or liability for taxes, long-term leases or unusual
forward or unusual long-term commitments which are not reflected in its
financial statements described in this Section or in the notes thereto.
6.5 Legal Status
Neither the Borrower nor any of its properties or revenues enjoys any
right of immunity from suit, set off, attachment prior to judgment or in
aid of execution, or execution on a judgment in respect of its obligations
under any of the Loan Documents to which it is a party.
6.6 Absence of Default
The Borrower is not in default in the payment of or in the performance of
any material obligation applicable to any Indebtedness (subject to any
applicable grace period), or in default under any Requirement of Law or
the terms or conditions upon which any Approval has been granted.
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6.7 Litigation, etc.
Except as disclosed in Item 1 ("Litigation") of the Disclosure Schedule,
there is no pending or, to the knowledge of the Borrower, threatened labor
controversy, litigation, arbitration or governmental investigation or
proceeding against the Borrower (or any of its Material Subsidiaries) or
to which any of its business, operations, properties, assets or revenues
is subject as to which there is a reasonable likelihood of an adverse
outcome to the Borrower or any of its Material Subsidiaries and which, if
adversely determined, would result in a Materially Adverse Effect. In the
case of any litigation described in Item 1 ("Litigation") of the
Disclosure Schedule, there has been no development in such litigation
which would result in a Materially Adverse Effect.
6.8 Materially Adverse Effect
Since the date of the most recent audited financial statements referred to
in Section 6.4, there have been no occurrences which, individually or in
the aggregate, would result in a Materially Adverse Effect.
6.9 Taxes and Other Payments
Except as disclosed in Item 2 ("Taxes") of the Disclosure Schedule, the
Borrower has filed (and has caused its Material Subsidiaries to file) all
tax returns and reports required by any Applicable Law to have been filed
by it and has paid all taxes and governmental charges thereby shown to be
owing and all claims for sums due for labor, material, supplies, personal
property and services of every kind and character provided with respect
to, or used in connection with its business and no claim for the same
exists except as permitted hereunder, except (i) any such taxes and
governmental charges which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with
U.S. GAAP shall have been set aside on the books of the Borrower or any
relevant Material Subsidiary, (ii) any such tax and governmental charge
which has not been timely invoiced as a result of the negligence of the
relevant taxing authority, or (iii) in the case of any other claims, where
failure to make payment therefor would not result in a Materially Adverse
Effect.
6.10 Subsidiaries
All of the Subsidiaries (including the Material Subsidiaries) of the
Borrower as of the Effective Date are listed in Item 3 ("Subsidiaries")
of the Disclosure Schedule.
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6.11 Environmental Warranties
Except as disclosed in Item 4 ("Environmental Matters") of the Disclosure
Schedule or except where failure of any of the following statements to be
true and correct would not reasonably be expected to have a Materially
Adverse Effect:-
(a) All facilities and property (including underlying groundwater) owned,
operated, leased or utilized by the Borrower or any of its Material
Subsidiaries have been, and continue to be, owned, operated, leased or
utilized by such Person in compliance with all Environmental Laws in
all material respects.
(b) There have been no past, and there are no pending or, to the
Borrower's knowledge, threatened:
(i) claims, complaints, notices or requests for information received
the Borrower or any of its Material Subsidiaries with respect to
any alleged violation of any Environmental Law, or
(ii) complaints, notices or inquiries to the Borrower or any of its
Material Subsidiaries regarding potential liability under any
Environmental Law.
(c) There have been no releases or emissions of Hazardous Materials at, on
or under any property now or previously owned, operated or leased by
the Borrower or any of its Material Subsidiaries.
(d) Each of the Borrower and its Material Subsidiaries has been issued,
and is in material compliance, with all Approvals relating to
environmental matters and necessary or reasonably advisable for its
operations as presently conducted.
(e) No property now or previously owned, operated or leased by the
Borrower or any of its Material Subsidiaries in connection with its
operations as presently conducted is listed or proposed for listing
on any governmental or regulatory list of sites requiring
investigation or clean-up.
(f) There are no underground or above-ground storage tanks, active or
abandoned, including petroleum storage tanks, on or under any property
now or previously owned, operated or leased by any of the Borrower or
its Material Subsidiaries in connection with its operations as
presently conducted.
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(g) None of the Borrower or its Material Subsidiaries has directly
transported or directly arranged for the transportation of any
Hazardous Material to any location which is listed or proposed for
listing on any governmental or regulatory list which is the subject of
any enforcement action or other investigation which may lead to
material claims against any such Person for any remedial work, damages
to natural resources or personal injury.
(h) There are no polychlorinated biphenyls or friable asbestos present at
any property now or previously owned, operated or leased by any of the
Borrower or its Material Subsidiaries in connection with its
operations as presently conducted.
(i) No conditions exist at, on or under any property now or previously
owned, leased, operated, licensed or used by any of the Borrower or
its Material Subsidiaries in connection with its operations as
presently conducted which, with the passage of time, or the giving of
notice or both, would give rise to liability under Environmental Law.
6.12 ERISA Liabilities
All currently existing ERISA Plans are listed in Item 5 ("ERISA Plans")
the Disclosure Schedule. Except as disclosed in the Disclosure Schedule,
no Termination Event has occurred with respect to any ERISA Plan and the
Related Persons are in compliance with ERISA in all material respects. No
Related Person is required to contribute to, or has any other absolute or
contingent liability in respect of, any "multiemployer plan" as defined in
Section 4001 of ERISA. Except as set forth in the Disclosure Schedule:
(a) no "accumulated funding deficiency" (as defined in Section 4.12(a) of
the Internal Revenue Code) exists in excess of U.S. $1,000,000 with
respect to any ERISA Plan, whether or not waived by the Secretary of
the Treasury or his delegate; and
(b) the current value of each ERISA Plan's benefits does not exceed the
current value of such ERISA Plan's assets available for the payment of
such benefits by more than U.S.$1,000,000.
6.13 Regulations T, U and X
The Borrower is not engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of
purchasing or carrying margin stock, and none of the proceeds of any Loans
will be used for a purpose which violates or would be inconsistent with,
F.R.S. Board Regulations T, U and X. Terms for which meanings are
provided in F.R.S. Board Regulations T, U or X or any regulations
substituted therefor, as from time to time in effect, are used in this
Section with such meanings.
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6.14 Government Regulation
Neither the Borrower nor any Subsidiary thereof is an "investment company"
within the meaning of the Investment Company Act of 1940, or a "holding
company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a
"holding company", in each case within the meaning of the Public Utility
Holding Company Act of 1935.
6.15 Pari Passu
Upon discharge in full of the Indebtedness arising under the Nationsbank
Credit Agreement (but subject to Section 7.3.2(l)), the payment
obligations of the Borrower under this Agreement rank at least pari passu
in right of payment with all of the Borrower's other unsecured and
unsubordinated Indebtedness, other than any such Indebtedness which is
preferred by mandatory provisions of Applicable Law.
7. COVENANTS
7.1 Informational and Financial Covenants
The Borrower agrees with each Finance Party that, until all Commitments
have terminated and all Obligations have been paid and performed in full
the Borrower will perform its relevant obligations set forth in this
Section.
7.1.1 Financial Information, etc.
The Borrower will deliver to the Administrative Agent copies of the
following reports and information:-
(a) promptly when available, and in any event within 90 days after the
close of each of its Fiscal Years, its consolidated balance sheet at
the close of such Fiscal Year and related consolidated statements of
operations and cashflows, loss and deficit, and changes in financial
position, as may be relevant (with comparable information at the close
of and for the prior Fiscal Year) and reported on without
Impermissible Qualification by an independent certified public or
chartered accountant of recognized international standing; and
43
(b) promptly when available, and in any event within 45 days after the
close of the first three Fiscal Quarters of each of its Fiscal Years,
its consolidated balance sheet at the close of such Fiscal Quarter and
related consolidated statements of operations and cashflows, loss and
deficit, and changes in financial position, as may be relevant, for
such Fiscal Quarter and for the period in such Fiscal Year ending on
the last day of such Fiscal Quarter (with comparable information at
the close of and for the corresponding Fiscal Quarter of the prior
Fiscal Year and for the corresponding portion of such prior Fiscal
Year) and certified by its accounting or financial Authorized
Representative.
7.1.2 Defaults
As soon as practicable and in any event within three Business Days after
obtaining knowledge of the occurrence of any Default relating to it, the
Borrower will furnish to the Administrative Agent a statement of its chief
financial Authorized Representative setting forth details of such Default
and the action which it has taken and proposes to take with respect
thereto.
7.1.3 Miscellaneous Information
The Borrower will deliver to the Administrative Agent copies of the
following reports and information:-
(a) without duplication of any other clause of this Section, notice of the
occurrence as soon as possible and in any event within three Business
Days after the Borrower knows or has reason to know of any
circumstance which has a reasonable likelihood of having a Materially
Adverse Effect;
(b) (i) promptly after the sending or filing thereof, copies of all
reports that it or any of its Material Subsidiaries sends to its
public shareholders and copies of registration statements and material
filings made with the U.S. Securities and Exchange Commission or any
other national securities exchange or commission, and (ii) without
duplication of sub-clause (i), promptly upon the making, filing or
receipt thereof, copies of each material report and document delivered
to, filed with, or received from any Governmental Agency which
contains details of any event or circumstance which could or might
have a Materially Adverse Effect;
(c) as soon as practicable details of any litigation, arbitration or
administrative proceedings, which if resolved against the Borrower
(or any of its Subsidiaries) could result in the Borrower (or any
such Subsidiary) suffering a loss in excess of U.S.$1,000,000 (or the
equivalent thereof in any other currency); and
44
(d) all other information relating to its or its Subsidiaries' financial
condition, operations or assets the Administrative Agent (or any
Lender by notice to the Administrative Agent, which notice shall be
copied to the Borrower) may from time to time reasonably request.
7.1.4 Books and Records; Access
The Borrower will (and will cause its Material Subsidiaries to) keep
financial records and statements reflecting all of its business affairs
and transactions in accordance with U.S. GAAP.
7.1.5 Accuracy of Information
All factual information hereafter furnished by or on behalf of the
Borrower in writing to any of the Finance Parties for the purposes of or
in connection with this Agreement or any transaction contemplated hereby
will be true and accurate in every material respect on the date as of
which such information is dated or certified and such information shall
not be incomplete by omitting to state any material fact necessary to make
such information not misleading.
7.2 Affirmative Covenants
The Borrower agrees with each Finance Party that, until all Commitments
have terminated and all Obligations have been paid and performed in full,
the Borrower will perform its relevant obligations set forth in this
Section.
7.2.1 Compliance with Laws, etc.
The Borrower will (and will cause its Material Subsidiaries to) comply (a)
in all material respects with all Applicable Laws and (b) in the case of
the Borrower, the terms of any Loan Document to which it is a party.
7.2.2 Maintenance of Corporate Existence
The Borrower will (and will cause its Material Subsidiaries to) do and
will cause to be done at all times all things necessary to maintain and
preserve its corporate existence and to be duly qualified to do business
and be in good standing (where such concept is relevant) as a foreign
corporation in each jurisdiction where the nature of its business requires
it to be so qualified and where there is a reasonable likelihood of a
Materially Adverse Effect if any such Person is not so qualified.
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7.2.3 Payment of Taxes, etc.
The Borrower will (and will cause its Material Subsidiaries to) pay and
discharge, as the same may become due and payable, all taxes, assessments,
fees and other governmental charges or levies against it or on any of its
property, as well as claims of any kind or character (including claims for
sums due for labor, material, supplies, personal property and services);
provided, however, that the foregoing shall not require any of the
foregoing Persons to pay or discharge any such tax, assessment, fee,
charge or levy (i) if such tax, etc. has not been timely invoiced as a
result of the negligence of the relevant taxing authority, or so long as
it shall be diligently contesting the validity or amount thereof in good
faith by appropriate proceedings and shall have set aside on its books
adequate reserves in accordance with U.S. GAAP with respect thereto or
(ii) in the case of any such claims due, to claims where failure to make
payment therefor would not result in a Materially Adverse Effect.
7.2.4 Proceeds
The Borrower shall apply the proceeds of the Loans strictly in accordance
with the terms of this Agreement, including the third recital.
7.2.5Environmental Covenant
(a) The Borrower will, and will cause each of its Material Subsidiaries
to, use and operate all of its assets, facilities and properties in
material compliance with, keep all material Approvals relating to
environmental matters in effect and remain in material compliance with
and handle all Hazardous Materials in material compliance with, all
applicable Environmental Laws except where failure to be in compliance
with the foregoing would not reasonably be expected to have a
Materially Adverse Effect;
(b) The Borrower will (and ensure that each of its Material Subsidiaries)
immediately notify the Administrative Agent and (upon the request of
the Administrative Agent) provide copies upon receipt of all material
written claims, complaints or notices or inquiries relating to the
condition of its facilities and properties or compliance with all
applicable Environmental Laws, and shall diligently contest, in
appropriate proceedings, or promptly cure (to the extent necessary to
terminate such action or proceeding) any actions and proceedings
relating to compliance with all applicable Environmental Laws except
where failure to be in compliance with the foregoing would not
reasonably be expected to have a Materially Adverse Effect; and
(c) The Borrower will provide such information which the Administrative
Agent may reasonably request from time to time to evidence compliance
with this Section.
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7.2.6 Pari Passu
The Borrower will ensure that, upon discharge of the Indebtedness arising
under the Nationsbank Credit Agreement (subject to Section 7.3.2(l)), its
payment Obligations under this Agreement rank at least pari passu in right
of payment with all of its other unsecured and unsubordinated Indebtedness
other than any such Indebtedness which is preferred by mandatory provisions
of Applicable Law.
7.3 Negative Covenants
The Borrower agrees with each Finance Party that, until all Commitments
have terminated and all Obligations have been paid and performed in full,
the Borrower will perform its relevant obligations set forth in this
Section.
7.3.1 Business Activities; Place of Business; Organic Documents; Fiscal Year
The Borrower shall not:-
(i) change any chief executive office or principal place of business
without first taking (to the satisfaction of the Collateral
Agent) all actions necessary to protect and perfect the Liens
granted pursuant to the Subsidiary Security Agreement;
(ii) amend its Organic Documents in any material respect or change its
corporate name; or
(iii) change its Fiscal Year.
7.3.2 Indebtedness
The Borrower will not (and will not permit its Material Subsidiaries to)
create, incur, assume, or suffer to exist or otherwise become or be liable
in respect of any Indebtedness other than (without duplication):-
(a) Indebtedness in respect of the Loans and other Obligations;
(b) Indebtedness in respect of taxes, assessments or governmental charges,
and Indebtedness in respect of claims for labor, materials or supplies
incurred in the ordinary course of business to the extent that payment
thereof shall not at the time be required to be made in accordance
with the provisions of Section 7.2.3;
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(c) Indebtedness in respect of judgments or awards, enforcement of which
has not been stayed by reason of a pending appeal or otherwise, for a
period of more than 21 days, which do not, in the aggregate, exceed
U.S.$1,000,000 (or the equivalent thereof in any other currency) or
the payment of which is not covered in full by insurance (subject to
any customary deductibles) maintained with responsible insurance
companies;
(d) any other Indebtedness disclosed in Item 6 ("Indebtedness") of the
Disclosure Schedule;
(e) until the Borrowing Date, Indebtedness arising under the Nationsbank
Credit Agreement, which (other than as set forth in clause (l)) shall
be discharged with the proceeds of the Loans and, until discharge
thereof (on or after the Borrowing Date) with the proceeds of the
Loans, Indebtedness arising under the Existing Standard Credit
Agreement;
(f) Indebtedness existing at the time of the purchase of any asset or
property in the ordinary course of business and/or incurred only in
connection with the acquisition, development and improvement of such
asset or property and without any recourse to (or any other form of
financial support from) the Borrower or any of its relevant Material
Subsidiaries;
(g) Indebtedness in respect of and otherwise permitted by the La Camorra
Credit Agreement;
(h) intercompany Indebtedness not in excess of an aggregate principal
amount of U.S. $5,000,000 (or the equivalent thereof in any other
currency);
(i) Indebtedness incurred in connection with any Greens Creek Financing;
provided, however, that at the time the Borrower proposes to incur
such Indebtedness, the Borrower shall have demonstrated to the
reasonable satisfaction of the Required Lenders that one or more
Approved Sales Transactions will occur prior to the Maturity Date and
the proceeds thereof will be sufficient to repay the Obligations prior
to the Maturity Date;
(j) Indebtedness in respect of Hedging Obligations incurred hereinafter
which, in the opinion of the Lenders, acting reasonably, would not
impose undue financial constraints on the Borrower;
(k) without duplication of any other sub-clause of this Clause,
Indebtedness not in excess of an aggregate amount of U.S.$5,000,000
(or the equivalent thereof in any other currency) including in respect
of Capitalized Lease Liabilities, the purchase of capital assets on
instalment terms and trade letters of credit; and
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(l) until June 30, 2000, Indebtedness (not to exceed U.S. $9,940,959.00)
in favor of Bank of America to support a letter of credit issued by
Bank of America for the benefit of Hecla Mining and relating to the
Industrial Revenue Bonds.
7.3.3 Liens
The Borrower will not (and will not permit its Material Subsidiaries to)
create, incur, assume or suffer to exist any Lien upon any of its
properties, revenues or assets, whether now owned or hereafter acquired,
except:
(a) Liens in favor of any of the Finance Parties granted pursuant to any
Loan Document;
(b) Liens arising from mandatory provisions of Applicable Law;
(c) Liens specifically permitted by the Subsidiary Security Agreement;
(d) Liens for taxes, assessments or other governmental charges or levies
not at the time delinquent or thereafter payable without penalty or
being contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with U.S. GAAP shall have been set
aside on its books or in the case of any other claims, where failure
to make payment therefor would not be likely to result in a Materially
Adverse Effect;
(e) Liens of carriers, warehousemen, mechanics, materialmen, suppliers and
landlords incurred in the ordinary course of business for sums not
overdue or being contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with U.S. GAAP shall
have been set aside on its books;
(f) Liens incurred in the ordinary course of business in connection with
workmen's compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure performance of
tenders, statutory obligations, leases and contracts (other than for
borrowed money) entered into in the ordinary course of business or to
secure obligations on surety or appeal bonds;
(g) judgment Liens (relating to judgments or awards which do not in the
aggregate, exceed U.S.$1,000,000 (or the equivalent thereof in any
other currency)) in existence less than 21 days after the entry
thereof or with respect to which execution has been stayed or the
payment of which is covered in full (subject to a customary
deductible) by insurance maintained with responsible insurance
companies;
(h) any other Lien disclosed in Item 7 ("Liens") of the Disclosure
Schedule;
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(i) Liens arising under and permitted by the La Camorra Credit Agreement;
(j) until the Borrowing Date, Liens under and permitted by the Nationsbank
Credit Agreement and (until the discharge thereof with the proceeds of
the Loans) the Existing Standard Credit Agreement;
(k) Liens securing Indebtedness described in Section 7.3.2 (f), (i), (j),
(k) and (l); provided, however, that for the avoidance of doubt, the
Liens described in Section 7.3.2(l) may not cover any collateral
subject of the Subsidiary Security Agreement;
(l) Liens securing the purchase price of equipment or filed in connection
with leases of equipment; and
(m) Liens granted to operators of mining joint ventures to secure the
obligations of the Borrower or any Material Subsidiary of the Borrower
that is not an operator of such joint ventures.
7.3.4 ERISA Plans
The Borrower will not, and will not permit any other Related Person to,
incur any obligation to contribute to any "multiemployer plan" as defined
in Section 4001 of ERISA.
7.3.5 Capital Expenditures
The Borrower will not (and will not permit any of its Material
Subsidiaries to) make or commit to make any Capital Expenditures other
than (i) Capital Expenditures not to exceed in the aggregate
U.S.$20,000,000 (or the equivalent in any other currency) during the
period prior to the Maturity Date which amount shall include Capital
Expenditures planned, as at the Effective Date, to be incurred in respect
of Greens Creek (prior to any purchase of the ownership interest therein
not currently owned by the Borrower), (ii) as may be permitted pursuant to
the terms of any possible Greens Creek Financing after any purchase of the
ownership interest in Greens Creek not currently owned by the Borrower and
(iii) in the case of MHV, as set forth in or as otherwise permitted by the
La Camorra Credit Agreement.
7.3.6 Investments
None of the Borrower or any of its Subsidiaries will form or suffer to
exist any Subsidiary (other than those Subsidiaries disclosed in Item 3 of
the Disclosure Schedule ("Subsidiaries")) and , without duplication of the
foregoing, will not make, incur, assume or suffer to exist any Investment
in any other Person, except (without duplication);
(a) Investments in existing projects and other investments existing on the
Effective Date and identified in Item 8 ("Ongoing Investments") of the
Disclosure Schedule;
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(b) Cash Equivalent Investments purchased and held from time to time;
(c) intercompany Indebtedness not in excess of an aggregate principal
amount of U.S.$5,000,000 (or the equivalent thereof in any other
currency);
(d) Investments permitted as Capital Expenditures pursuant to Section
7.3.5;
(e) without duplication of any of the foregoing, Investments contemplated
by and permitted under the La Camorra Credit Agreement;
(f) Investments made by way of acquisitions of other Persons or businesses
with the common shares of the Borrower used as sole consideration for
such acquisitions; and
(g) Investments in respect of Greens Creek in conjunction with or after
any purchase of the ownership interest therein not currently owned by
the Borrower provided that such Investments are permitted by the terms
of any Greens Creek Financing.
7.3.7 Consolidation, Merger, etc
The Borrower will not, and will not permit any Material Subsidiary to,
liquidate or dissolve, consolidate with, or merge into or with, any other
corporation, or purchase or otherwise acquire all or substantially all of
the assets of any Person (or of any division thereof); provided, however,
that the foregoing shall not apply to (i) any possible purchase of the
remaining interest (not currently held by the Borrower) in Greens Creek
and (ii) acquisitions of other Persons or businesses with the common
shares of the Borrower used as sole consideration for such acquisitions.
7.3.8 Asset Dispositions
The Borrower will not, and will not permit any of its Material Subsidiaries
to, sell, transfer, lease or otherwise dispose of any of, or grant options,
warrants or other rights with respect to, any of its assets (including
accounts receivable) to any Person, unless:-
(a) such disposition is made in the ordinary course of business and
consists of finished goods inventories (which may consist, without
limitation, of concentrates, ore, refined metal or other product forms
customarily sold as end products in the mining and minerals industry);
(b) such disposition is of obsolete or replaced assets, which are no
longer used or useful to the Borrower or such Material Subsidiary;
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(c) the net book value of all assets disposed of by the Borrower and its
Material Subsidiaries (excluding, however, assets proposed of pursuant
to clauses (a) and (b)) in the same Fiscal Year does not exceed
U.S.$5,000,000 or the equivalent thereof in any other currency
calculated at the time of the relevant disposition) and fair value in
cash is received therefor; provided, however, that if the Borrower
shall request consent from the Administrative Agent for an asset sale
not otherwise permitted by this Clause and the Administrative Agent
shall, as a condition to its consent thereto, stipulate that the
proceeds from such sale be used to prepay the Loans, then only such
proceeds received from such sale as would exceed U.S.$5,000,000 (or
the equivalent thereof as aforesaid) may be used for any mandatory
prepayment of the Loans;
(d) such disposition is an Approved Sale Transaction and the Net Sales
Proceeds resulting therefrom shall be used to make a mandatory
prepayment of the Loans pursuant to Section 3.1.2;
(e) a disposition of the shares of MWCA, any of its Subsidiaries or any
related businesses or assets; or
(f) without duplication of any of the foregoing, such disposition is
permitted under the La Camorra Credit Agreement.
7.3.9 Transactions with Affiliates
The Borrower will not enter into, or cause, suffer or permit to exist:
(a) any arrangement or contract pursuant to which any Indebtedness is
extended by the Borrower or any of its Material Subsidiaries to any
Affiliate unless permitted by Section 7.3.6(c);
(b) any arrangement or contract with any of its Affiliates of a nature
customarily entered into by Persons which are Affiliates of each other
(including management or similar contracts or arrangements relating to
the allocation of revenues, taxes and expenses or otherwise) requiring
any payments to be made by the Borrower or any of its Material
Subsidiaries to any Affiliate unless such arrangement is fair and
equitable to the Borrower or any such Material Subsidiary; and
(c) any other transaction, arrangement or contract with any of its other
Affiliates which would not be entered into by a prudent Person in the
position of the Borrower or any of its Material Subsidiaries with, or
which is on terms which are less favorable to, the Borrower or any
such Material Subsidiary than are obtainable from, any Person which is
not one of its Affiliates.
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7.3.10 Restrictive Agreements, etc.
The Borrower will not enter into any agreement (excluding this Agreement
and the Loan Documents) prohibiting the creation or assumption of any Lien
upon its properties, revenues or assets, whether now owned or hereafter
acquired, or the ability of the Borrower to amend or otherwise modify this
Agreement or any other Operative Document.
8. EVENTS OF DEFAULT
8.1 Events of Default
The term "Event of Default" shall mean any of the events set forth in this
Section.
8.1.1 Non-Payment of Obligations
The Borrower:-
(a) shall default in the payment or prepayment when due of any Principal
Amount; or
(b) shall default in the payment when due of any other Obligation (and
such default shall continue unremedied for a period of three Business
Days).
8.1.2 Non-Performance of Certain Covenants
The Borrower shall default in the due performance and observance of any of
its obligations under Section 7.2.2, 7.2.4, 7.2.6 or 7.3 (other than (i)
to the extent such default shall have arisen as a result of any action or
event beyond the control of the Borrower, Section 7.3.2 or 7.3.3 or (ii)
if any such default is capable of cure or remedy, such default shall
continue unremedied for a period of 21 Business Days (or such longer
period as the Administrative Agent may agree, if the Administrative Agent
determines that such default is reasonably capable of being cured in such
longer period) after notice thereof shall have been given to the Borrower
by the Administrative Agent).
8.1.3 Non-Performance of Other Obligations
The Borrower shall default in the due performance or observance of any
term, condition, covenant or agreement, whether contained herein or in any
other Loan Document executed by it (other than a default arising pursuant
to Section 8.1.1 or 8.1.2) and, if capable of cure or remedy, such default
shall continue unremedied for a period of 21 Business Days (or such longer
period as the Administrative Agent may agree, if the Administrative Agent
determines that such default is reasonably capable of being cured within
such longer period) after notice thereof shall have been given to the
Borrower by the Administrative Agent.
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8.1.4 Breach of Representation or Warranty
Any representation or warranty of the Borrower hereunder or in any other
Loan Document executed by it or in any other writing furnished by or on
behalf of the Borrower to any Finance Party for the purposes of or in
connection with this Agreement or any such Loan Document is or shall be
incorrect when made in any material respect.
8.1.5 Default on other Indebtedness
A default shall occur in the payment when due (subject to any applicable
grace period), whether by acceleration or otherwise, by the Borrower or
any of its Subsidiaries under any Indebtedness (excluding Indebtedness
described in Section 8.1.1) of the Borrower or any of its Subsidiaries
having a principal amount, individually or in the aggregate, in excess of
U.S.$1,000,000 (or the equivalent of any of the foregoing in any other
currency), or the maturity of any such Indebtedness shall be accelerated.
8.1.6 Bankruptcy, Insolvency, etc.
The Borrower or any of its Material Subsidiaries shall:-
(a) become insolvent or generally fail to pay, or admit in writing its
inability to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a trustee,
receiver, sequestrator or other custodian for such Person, or any
property of any thereof, or make a general assignment for the benefit
of creditors;
(c) in the absence of such application, consent or acquiescence, permit or
suffer to exist the appointment of a trustee, receiver, sequestrator
or other custodian for such Person or for a substantial part of the
property of any thereof, and such trustee, receiver, sequestrator or
other custodian shall not be discharged within 60 days, provided that
the Borrower hereby expressly authorizes the Administrative Agent to
appear in any court conducting any relevant proceeding during such
60-day period to preserve, protect and defend the rights of the
Finance Parties under the Loan Documents;
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(d) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution, winding up or
liquidation proceeding, in respect of any Person and, if such case or
proceeding is not commenced by such Person, such case or proceeding
shall be consented to or acquiesced in by such Person or shall result
in the entry of an order for relief or shall remain for 60 days
undismissed, provided that the Borrower hereby expressly authorizes
the Administrative Agent to appear in any court conducting any
relevant proceeding during such 60-day period to preserve, protect and
defend the rights of the Finance Parties under the Loan Documents;
(e) suffer any comparable event to any of the foregoing in any
jurisdiction; or
(f) take any corporate action authorizing, or in furtherance of, any of
the foregoing.
8.1.7 Impairment of Loan Documents
This Agreement or any other Loan Document shall terminate or cease in
whole or part to be the legal, valid, binding and enforceable obligation
of the Borrower; the Borrower shall, directly or indirectly, contest in
any manner such effectiveness, validity, binding nature or enforceability;
or any Lien securing any Obligation shall, in whole or in part, cease to
be a perfected Lien which, except as permitted by Section 7.3.3, ranks
first in priority (other than as a result of any action or omission by the
Collateral Agent).
8.1.8 Judgments
Any judgment or order for the payment of money in excess of U.S.$1,000,000
(or the equivalent thereof in any other currency) shall be rendered
against the Borrower or any of its Material Subsidiaries and either:-
(a) enforcement proceedings shall have been commenced by any creditor upon
such judgment or order; or
(b) there shall be any period of 21 consecutive days during which a stay
of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect, unless the payment of
such judgment is covered in full (subject to a customary deductible)
by insurance maintained with responsible insurance companies.
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8.1.9 Change in Control
Any Change in Control shall occur.
8.1.10 Materially Adverse Effect
Any event (other than as enumerated in any other provision of this
Article) shall occur or condition shall exist which constitutes a
Materially Adverse Effect.
8.2 Action if Bankruptcy
If an Insolvency Event shall occur, the Commitments (if not theretofore
terminated) shall automatically terminate, without notice, and the
outstanding principal amount of all outstanding Loans and all other
Obligations shall automatically be and become immediately due and payable,
without notice or demand.
8.3 Action if Other Event of Default
If any Event of Default (other than an Insolvency Event) shall occur for
any reason, whether voluntary or involuntary, and be continuing the
Administrative Agent may (acting with the consent of the Required
Lenders), and upon the direction of the Required Lenders, shall, upon
notice or demand to the Borrower, declare all or any portion of the
outstanding principal amount of the Loans to be due and payable and any or
all other Obligations to be due and payable and/or the Commitments (if not
theretofore terminated) to be terminated, whereupon the full unpaid amount
of such Loans and any and all other such Obligations which shall be so
declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, and/or, as the case may be,
such Commitments shall terminate.
9. THE AGENTS
9.1 Actions
Each Lender authorizes the Collateral Agent and the Administrative Agent
to act in the relevant capacity on behalf of such Lender under this
Agreement and each other Loan Document and, in the absence of other
written instructions from the Required Lenders received from time to time
by such Agent (with respect to which such Agent agrees that it will,
subject to the last paragraph of this Section, comply in good faith except
as otherwise advised by counsel to the effect that any such compliance
might subject such Agent to any liability of whatsoever nature), to
exercise such powers hereunder and thereunder as are specifically
delegated to or required of such Agent by the terms hereof and thereof,
together with such powers as may be reasonably incidental thereto.
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Without limiting the generality of the foregoing, each Lender hereby
authorizes the Collateral Agent to act on behalf of such Lender to execute
and accept on its behalf the Subsidiary Security Agreement and to take all
such actions thereunder necessary or appropriate with respect to
management or enforcement of the collateral security provided by the
Subsidiary Security Agreement and enforcement of the rights of the Finance
Parties thereunder.
Each Lender agrees (which agreement shall survive any termination of this
Agreement) to indemnify each Agent, pro rata, according to such Lender's
Percentage, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may at any time be
imposed on, incurred by, or asserted against such Agent in any way
relating to or arising out of this Agreement or any other Loan Document,
including the reimbursement of each Agent for all out-of-pocket expenses
(including attorneys' fees and expenses) incurred by such Agent hereunder
or in connection herewith or with any other Loan Document or in enforcing
the Obligations under this Agreement or any other Loan Document (subject
as aforesaid) in all cases as to which such are not reimbursed by the
Borrower; provided, however, that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
determined by a court of competent jurisdiction in a final proceeding to
have resulted from either Agent's gross negligence or wilful misconduct.
Neither Agent shall be required to take any action hereunder or under any
other Loan Document, or to prosecute or defend any suit in respect of this
Agreement or any other Loan Document, unless it is indemnified to its
satisfaction by the relevant Lenders against loss, costs, liability and
expense. If any indemnity in favor of either Agent shall become impaired,
it may call for additional indemnity and cease to do the acts indemnified
against until such additional indemnity is given.
9.2 Funding Reliance, etc.
Unless the Administrative Agent shall have been notified by telephone,
confirmed in writing, by any Lender by 5:00 p.m. on the day prior to the
proposed Borrowing Date that such Lender will not make available the
amount which would constitute its Percentage of the Loans to be made by
all the Lenders on such date, the Administrative Agent may assume that
such Lender has made such amount available to the Administrative Agent
and, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If and to the extent that such Lender shall not
have made such amount available to the Administrative Agent, such Lender
and the Borrower severally agree to repay the Administrative Agent
forthwith on demand such corresponding amount together with interest
thereon, for each day from the date the Administrative Agent made such
amount available to the Borrower to the date such amount is repaid to the
Administrative Agent, at the interest rate applicable at the time to the
relevant Loans.
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9.3 Exculpation
Neither Agent nor any of its directors, officers, employees or agents
shall be liable to any Finance Party for any action taken or omitted to be
taken by it under this Agreement or any other Loan Document, or in
connection herewith or therewith, except for its own wilful misconduct or
gross negligence, or responsible for any recitals or warranties herein or
therein, or for the effectiveness, enforceability, validity or due
execution of this Agreement or any other Loan Document, or to make any
inquiry respecting the performance by the Borrower of its obligations
hereunder or thereunder, or the validity, genuineness, creation,
perfection or priority of the Liens created by any Loan Document, or the
validity, genuineness, enforceability, existence, value or sufficiency of
any collateral security. Each Agent shall be entitled to rely upon advice
of counsel concerning legal matters and upon any notice, consent,
certificate, statement, or writing which it believes to be genuine and to
have been presented by a proper Person.
9.4 Successors
Either Agent may resign as such at any time upon at least 30 days' prior
notice to the Borrower and all the Lenders. If either Agent at any time
shall resign, the Required Lenders may appoint another Lender as the
relevant successor Agent which shall thereupon become such Agent
hereunder. If no such successor Agent shall have been so appointed as
aforesaid, and shall have accepted such appointment, within 30 days after
such retiring Agent's giving notice of resignation, then the retiring
Agent may, on behalf of the Required Lenders, appoint a relevant successor
Agent, which shall be one of the Lenders or a commercial banking
institution having a combined capital and surplus of at least
U.S.$500,000,000 (or the equivalent thereof in another currency). Upon
the acceptance of any appointment as an Agent hereunder by any successor
Agent, such successor Agent shall be entitled to receive from the relevant
retiring Agent such documents of transfer and assignment as such successor
Agent may reasonably request, and shall thereupon succeed to and become
vested with all rights, powers, privileges and duties of the relevant
retiring Agent and the retiring Agent shall be discharged from its duties
and obligations under this Agreement and each other Loan Document.
9.5 Loans by Standard Bank
Standard Bank shall have the same rights and powers with respect to the
Loans made by it or any of its Affiliates as any Lender and may exercise
the same as if it were not the Administrative Agent or the Collateral
Agent. Each of Standard Bank and its Affiliates may accept deposits from,
lend money to, and generally engage in any kind of business with the
Borrower or any Affiliate of any thereof as if Standard Bank were not an
Agent.
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9.6 Standard Bank as Administrative Agent
In acting as Administrative Agent for the Lenders, Standard Bank's banking
division will be treated as a separate entity from any other of its
divisions (or similar unit of the Administrative Agent in any subsequent
re-organization) or subsidiaries (the "Other Divisions") and, in the event
that the Administrative Agent should act for the Borrower or Affiliate
thereof in a corporate finance or other advisory capacity ("Advisory
Capacity"), any information given by such person to one of the Other
Divisions is to be treated as confidential and will not be available to
any of the Finance Parties without the consent of such persons provided
that:-
(a) the consent of the Borrower or Affiliate will not be required in
relation to any information which the Administrative Agent in its
discretion determines relates to a Default or in respect of which the
Lenders have given a confidentiality undertaking in a form
satisfactory to the Administrative Agent and the Borrower or Affiliate
acting reasonably; and
(b) if representatives or employees of the Administrative Agent receive
information in relation to the Borrower or Affiliate or while acting
in an Advisory Capacity they will not be obliged to disclose such
information to representatives or employees of the Administrative
Agent in their capacity as agent bank hereunder or to any of the
Lenders if to do so would breach any rule or regulation or fiduciary
duty imposed upon such Persons.
9.7 Credit Decisions
Each Lender acknowledges that, it has, independently of the Agents and
each other Lender, and based on the financial and other information
referred to in Section 6.4 and such other documents, information and
investigations as it has deemed appropriate, made its own credit decision
to maintain its Commitments and participate in the Facility. Each Lender
also acknowledges that it will, independently of the Agents and each other
Lender, and based on such other documents, information and investigations
as it shall deem appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time any rights
and privileges available to it under this Agreement or any other Loan
Document.
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9.8 Copies, etc.
Each Agent shall give prompt notice to each Lender of each notice or
request required or permitted to be given to such Agent by the Borrower
pursuant to the terms of this Agreement or any of the other Loan
Documents. Each Agent will distribute to the relevant Lenders each
Instrument received for its account (but excluding, for the avoidance of
doubt, any fee letter referred to in Section 3.3) and copies of all other
communications received by such Agent from the Borrower for distribution
to the Lenders by such Agent in accordance with the terms of this
Agreement or any other of the Loan Documents.
10. MISCELLANEOUS
10.1 Waivers, Amendments, etc
The provisions of this Agreement and of each other Loan Document (except
to the extent expressly otherwise set forth in such Loan Document) may
from time to time be amended, modified or waived, if such amendment,
modification or waiver is in writing and consented to by the Borrower, the
Required Lenders, the Collateral Agent (but only if such provision
involves the rights or obligations of the Collateral Agent) and the
Administrative Agent (but only if the relevant provision involves the
rights or obligations of the Administrative Agent); provided, however,
that no such amendment, modification or waiver which would:-
(a) modify any requirement hereunder that any particular action be taken
or a determination be made by, or with the consent of or in
consultation with all the Lenders or the Required Lenders shall be
effective unless consented to by each Lender;
(b) modify this Section, change the definition of "Required Lenders",
increase the Aggregate Commitment Amount, change the definition of
"Percentage", or otherwise subject any Lender to any additional
obligation hereunder, shall be effective without the consent of all
the Lenders;
(c) extend the due date for, or reduce the amount of, any payment or
prepayment of principal of or interest on any Loan or any other amount
payable hereunder or under any other relevant Loan Document shall be
made without the consent of all the Lenders;
(d) reduce any fee described in Section 3.3 or affect the interests,
rights or obligations of either Agent qua Agent shall be made without
the consent of such Agent; or
(e) except as specifically provided for in this Agreement or the
Subsidiary Security Agreement, authorize or effect the release of any
material collateral which is the subject of any Lien granted or
purported to be granted pursuant to the Subsidiary Security Agreement
shall be made without the consent of all the Lenders.
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No failure or delay on the part of any Finance Parties in exercising any
power or right under this Agreement or any other Loan Document to which it
is a party shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice
to or demand on the Borrower in any case shall entitle it to any notice or
demand in similar or other circumstances. No waiver or approval by any
Finance Party under this Agreement or any other Loan Document to which it
is a copy shall, except as may be otherwise stated in such waiver or
approval, be applicable to subsequent transactions. No waiver or approval
hereunder shall require any similar or dissimilar waiver or approval
thereafter to be granted hereunder.
10.2 Notices
All notices and other communications provided to any party hereto under
this Agreement or any other Loan Document shall be in writing or by telex
or by facsimile and addressed or delivered to it at the relevant address
for such party set forth below its signature hereto and designated as its
"Address for Notices" or at such other address as may be designated by
such party in the relevant Loan Document or a notice to the other parties.
Any notice, if sent by hand delivery or courier delivery, shall be deemed
received on the Business Day when delivered and, if transmitted by telex
or facsimile, shall be deemed given on the Business Day when transmitted
(answerback confirmed in the case of telexes and transmission confirmed by
the sending facsimile machine in the case of facsimiles).
10.3 Costs and Expenses
(a) Without prejudice to similar obligations of the Borrower under any
other Loan Document, the Borrower agrees to pay on demand all,
reasonable out-of-pocket expenses (inclusive of United Kingdom Value
Added Tax or any other similar tax) of each Agent for the negotiation,
preparation, execution and delivery of this Agreement and each other
Loan Document, including schedules and exhibits, and any amendments,
waivers, consents, supplements or other modifications to this
Agreement or any other Loan Document as may from time to time
hereafter be required (including the reasonable fees and expenses of
counsel and designated local counsel to either Agent from time to time
incurred in connection therewith), whether or not the transactions
contemplated hereby are consummated, and all expenses (inclusive as
aforesaid) of the Agents (including reasonable fees and expenses of
counsel and designated local counsel to either Agent and any stamp or
other taxes) incurred in connection with the preparation and review of
the form of any Instrument relevant to this Agreement or any
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other Loan Document, the consideration of legal questions relevant
hereto and thereto and the filing, recording, refiling or re-recording
of any Loan Document and all amendments or supplements to any thereof
and any and all other documents or Instruments of further assurance
required to be filed or recorded or refiled or re-recorded by the
terms hereof or of any other Loan Document.
(b) The Borrower agrees to reimburse each Finance Party upon demand for all
reasonable out-of-pocket expenses (including attorneys' fees and
expenses and inclusive of United Kingdom Value Added Tax or any other
similar tax) incurred by such Finance Party in connection with (i)
the negotiation of any restructuring or "work-out", whether or not
consummated, of any Obligations and (ii) the enforcement of any such
Obligations.
10.4 Indemnification
In consideration of the execution and delivery of this Agreement by each
Finance Party and the extension of the Commitments, the Borrower hereby
indemnifies, exonerates and holds each Finance Party and each of such
Finance Party's Affiliates, officers, directors, shareholders, employees
and agents (collectively, the "Indemnified Parties") free and harmless
from and against any and all actions, causes of action, suits, losses,
costs, liabilities and damages and expenses in connection therewith, in
each case arising from the claims of third parties including reasonable
attorneys' fees and disbursements (the "Indemnified Liabilities"),
incurred by the Indemnified Parties or any of them as a result of, or
arising out of, or relating to:-
(a) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Loan; or
(b) the entering into and performance of this Agreement and any other Loan
Document by any of the Indemnified Parties,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's
gross negligence or wilful misconduct, and if and to the extent that the
foregoing undertaking may be unenforceable for any reason, the Borrower
hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities for which each is
liable hereunder and which is permissible under Applicable Law.
10.5 Survival
The obligations of the Borrower under Sections 3.3, 4.2, 4.3, 4.4, 4.6,
10.3 and 10.4 and the obligations of the relevant Lenders under Section
9.1, shall, in each case, survive any termination of this Agreement. The
representations and warranties made by the Borrower in this Agreement and
in each other Loan Document to which it is a party shall survive the
execution and delivery of this Agreement and each such other Loan
Document.
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10.6 Severability
Any provision of this Agreement or any other Loan Document which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Agreement or such other Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
10.7 Headings
The various headings of this Agreement and of each other Loan Document are
inserted for convenience only and shall not affect the meaning or
interpretation of this Agreement or such other Loan Document or any
provisions hereof or thereof.
10.8 Counterparts; Effectiveness
This Agreement may be executed by the parties hereto in several
counterparts, each of which shall be executed by the Borrower, the
Collateral Agent and the Administrative Agent and be deemed to be an
original and all of which shall constitute together but one and the same
agreement. This Agreement shall become effective on the date (the
"Effective Date") when counterparts hereof executed on behalf of the
Borrower, the Collateral Agent and each Lender (or notice thereof
satisfactory to the Administrative Agent) shall have been received by the
Administrative Agent.
10.9 Governing Law; Entire Agreement
(a) THIS AGREEMENT AND, UNLESS OTHERWISE SPECIFIED THEREIN, EACH OTHER
LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
(b) This Agreement and the other Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject
matter hereof and thereof and supersede any prior agreements, written
or oral, or document with respect thereto.
10.10 Successors and Assigns
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns; provided,
however, that:
(a) the Borrower may not assign or transfer its rights or obligations
without the prior written consent of the Administrative Agent, the
Collateral Agent and all the Lenders; and
(b) the rights of sale, assignment, and transfer of the Lenders are
subject to Section 10.11.
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10.11 Sale and Transfer of Loans; Participations in Loans
Each Lender may assign, or sell participations in, its Loans and
Commitments in accordance with this Section.
10.11.1 Assignments
Any Lender, with notice to the Borrower and the Administrative Agent, may
assign and delegate to any of its Affiliates or to any other Lender or to
one or more commercial banks, as set forth in this Section. Each Person
described as being the Person from or to whom such assignment and
delegation is to be made, being hereinafter referred to as an "Assignor
Lender" or "Assignee Lender", respectively.
Each Assignor Lender may assign and delegate all or any fraction of such
Assignor Lender's total Loans and Commitments. Such assignment and
delegation shall be of a constant, and not a varying, percentage of all
the Assignor Lender's Loans and Commitments in a minimum aggregate amount
of U.S.$1,000,000; provided, however, that any transfer by any Lender of
any Commitment shall require the consent (not to be unreasonably withheld
or delayed) of the Administrative Agent; and provided, further, however,
that, the Borrower and each Agent shall be entitled to continue to deal
solely and directly with the Assignor Lender in connection with the
interests so assigned and delegated to an Assignee Lender until:
(a) written notice of such assignment and delegation, together with
payment instructions, addresses and related information with respect
to such Assignee Lender, shall have been given to the Borrower and the
Administrative Agent by such Assignor Lender and such Assignee Lender;
(b) such Assignee Lender shall have executed and delivered to the Borrower
and the Administrative Agent a Lender Assignment Agreement, which
shall have been accepted by the Administrative Agent;
(c) the Administrative Agent shall have been provided with such evidence
as the Administrative Agent may reasonably request in connection with
any Approval required or advisable in connection with such assignment
and delegation; and
(d) the processing fees (if any) described below shall have been paid.
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From and after the date that the Administrative Agent accepts such Lender
Assignment Agreement (which shall be promptly after the delivery of the
documentation referred to above and after the Administrative Agent shall
be satisfied that the relevant assignment is in compliance with the
requirements of this Agreement and each other Loan Document under which
the assignment is being effected), (x) the Assignee Lender thereunder
shall be deemed automatically to have become a party hereto and to the
extent that rights and obligations hereunder have been assigned and
delegated to such Assignee Lender in connection with such Lender
Assignment Agreement, shall have the rights and obligations of a Lender
hereunder and under the other Loan Documents and (y) the Assignor Lender,
to the extent that rights and obligations hereunder have been assigned and
delegated by it in connection with such Lender Assignment Agreement, shall
be released from its obligations hereunder and under the other Loan
Documents.
Accrued interest on that part of the Loans assigned to the Assignee
Lender, and accrued fees in respect thereof, shall be paid as provided in
the Lender Assignment Agreement. Except in the case where any such
Assignee Lender is an Affiliate of such Assignor Lender, such Assignor
Lender or such Assignee Lender shall also pay a processing fee to the
Administrative Agent upon delivery of any Lender Assignment Agreement in
the amount of U.S.$1,500. Any attempted assignment and delegation not
made in accordance with this Section shall be null and void.
In no event shall the Borrower be required to pay any amount under
Sections 4.2, 4.3, 4.4, 4.5 and 4.6 existing at the time of any proposed
assignment to any Assignee Lender hereunder which would otherwise be
payable if such assignment took place.
10.11.2 Participations
Any Lender may at any time sell to one or more commercial banks (excluding
the Borrower or any Affiliate of the Borrower) (each of such commercial
banks and other Persons being herein called a "Participant") participating
interests in any of the Loans, Commitments or other interests of such
Lender; provided, however, that:
(a) no participation contemplated in this Section shall relieve such
Lender from its Commitment or its other obligations hereunder or under
any other Loan Document;
(b) such Lender shall remain solely responsible for the performance of its
Commitment and such other obligations;
(c) the Borrower and each Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and
obligations under this Agreement and each of the other Loan Documents;
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(d) no Participant, unless such Participant is an Affiliate of such
Lender, or is itself a Lender, shall be entitled to require such
Lender to take or refrain from taking any action hereunder or under
any other Loan Document, except that such Lender may agree with any
Participant that such Lender will not, without such Participant's
consent, take any actions of the type described in Section 10.1(b) or
(c); and
(e) the Borrower shall not be required to pay any amount under Sections
4.2, 4.3, 4.4, 4.5 and 4.6 that is greater than the amount which it
would have been required to pay had no participating interest been
sold.
The Borrower acknowledges and agrees that each Participant, for the
purposes of Sections 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.9, 4.10, 4.11, 10.3
and 10.4, shall be considered a Lender.
10.12 Other Transactions
Without prejudice to the provisions of Section 9.5, nothing contained
herein shall preclude any Finance Party from engaging in any transaction,
in addition to those contemplated by this Agreement or any other Loan
Document, with the Borrower or any of their Affiliates in which the
Borrower or such Affiliate is not restricted hereby from engaging with any
other Person.
10.13 Forum Selection and Consent to Jurisdiction; Waiver of Immunity
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
THE AGENTS, THE LENDERS OR THE BORROWER MAY BE BROUGHT AND MAINTAINED IN
THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK AND IN ADDITION IN THE COURTS OF ANY
JURISDICTION WHERE ANY COLLATERAL OR OTHER PROPERTY OF THE BORROWER MAY BE
FOUND. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES
TO BE BOUND BY ANY FINAL JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH
LITIGATION. THE BORROWER HEREBY IRREVOCABLY APPOINTS CT CORPORATION WITH
OFFICES ON THE ON THE DATE HEREOF AT 0000 XXXXXXXX, XXX XXXX, XXX XXXX
00000 (THE "PROCESS AGENT") AS ITS AGENT FOR SERVICE OF PROCESS IN NEW
YORK. SERVICE OF PROCESS MAY BE MADE UPON THE BORROWER BY MAILING OR
DELIVERING A COPY OF SUCH PROCESS TO IT IN CARE OF THE PROCESS AGENT AT
THE PROCESS AGENT'S ADDRESS AND THE BORROWER HEREBY FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS IN ANY SUIT, ACTION OR PROCEEDING IN
NEW YORK ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT BY
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THE MAILING OF COPIES OF SUCH PROCESS TO IT AT ITS ADDRESS FOR NOTICES SET
FORTH BELOW ITS SIGNATURE HERETO. THE BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE
EXTENT THAT THE BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH
SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE
BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
10.14 Waiver of Jury Trial
THE AGENTS, THE LENDERS AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF
THE AGENTS, THE LENDERS OR THE BORROWER. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE AGENTS AND THE LENDERS ENTERING INTO THIS AGREEMENT AND
EACH OTHER LOAN DOCUMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers thereunto duly authorized as of the day and year
first above written.
HECLA MINING COMPANY
as the Borrower
By: /s/ Xxxx X. Xxxxxxxx
Title: Vice President - Chief
Financial Officer
Address for Notices:
0000 Xxxxxxx Xxxxx
Xxxxx x'Xxxxx
Xxxxx 00000-0000
U.S.
Facsimile No.: 0-000-000-0000
Attention: Chief Financial Officer
Commitment Amount : U.S.$55,000,000 STANDARD BANK LONDON LIMITED
as a Lender
By: /s/ Xxxxxx Xxxxxx
Title: Assistant General Manager
By: /s/ Don Newport
Title: Head of Mining Finance
Lending Office:
Standard Bank London Limited
Xxxxxx Xxxxxx Xxxxx
00 Xxxxxxx Xxxx
Xxxxxx XX0X 0XX
Address for Notices:
Standard Bank London Limited
Xxxxxx Xxxxxx Xxxxx
00 Xxxxxxx Xxxx
Xxxxxx XX0X 0XX
Facsimile No.: 00-000-000-0000
Attention: Xxxxxx Xxxxxx
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STANDARD BANK LONDON LIMITED
as Administrative Agent
By: /s/ Xxxxxx Xxxxxx
Title: Assistant General Manager
By: /s/ Don Newport
Title: Head of Mining Finance
Address for Notices:
Standard Bank London Limited
Xxxxxx Xxxxxx Xxxxx
00 Xxxxxxx Xxxx
Xxxxxx XX0X 0XX
Facsimile No.: 00-000-000-0000
Attention: Xxxxxx Xxxxxx
STANDARD BANK LONDON LIMITED
as Collateral Agent
By: /s/ Xxxxxx Xxxxxx
Title: Assistant General Manager
By: /s/ Don Newport
Title: Head of Mining Finance
Address for Notices:
Standard Bank London Limited
Xxxxxx Xxxxxx Xxxxx
00 Xxxxxxx Xxxx
Xxxxxx XX0X 0XX
Facsimile No.: 00-000-000-0000
Attention: Xxxxxx Xxxxxx
