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Exhibit 10.1(e)
FOURTH AMENDMENT TO RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO RESTATED CREDIT AGREEMENT (herein
called the "Amendment") made as of December 30, 1999 by and among
Hecla Mining Company, a Delaware corporation ("Borrower"), the
undersigned subsidiary guarantors ("Subsidiary Guarantors"), Bank
of America, N.A., f/k/a Bank of America National Trust and
Savings Association, successor by merger to Bank of America,
N.A., f/k/a NationsBank, N.A., individually and as agent
("Agent"), and the Lenders, including Agent, party to the
Original Agreement ("Lenders"), defined below.
W I T N E S S E T H:
WHEREAS, Borrower, Subsidiary Guarantors, Agent and Lenders
entered into that certain Restated Credit Agreement dated as of
May 7, 1999 (as amended, supplemented, or restated, the "Original
Agreement") for the purpose and consideration therein expressed,
whereby Lenders became obligated to make loans to Borrower as
therein provided; and
WHEREAS, Borrower, Subsidiary Guarantors, Agent and Lenders
desire to amend the Original Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein and in the
Original Agreement, in consideration of the loans which may
hereafter be made by Lenders to Borrower, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto do hereby agree as
follows:
ARTICLE I.
Definitions and References
Section 1.1. Terms Defined in the Original Agreement.
Unless the context otherwise requires or unless otherwise
expressly defined herein, the terms defined in the Original
Agreement shall have the same meanings whenever used in this
Amendment.
Section 1.2. Other Defined Terms. Unless the context
otherwise requires, the following terms when used in this
Amendment shall have the meanings assigned to them in this
Section 1.2.
"Amendment" means this Fourth Amendment to Restated
Credit Agreement.
"Credit Agreement" means the Original Agreement as
amended hereby.
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ARTICLE II.
Amendments to Original Agreement
Section 2.1. Tangible Net Worth. Section 7.13 of the
Original Agreement is hereby amended in its entirety to read as
follows:
"Section 7.13. Tangible Net Worth. Borrower's
Consolidated Tangible Net Worth (i) as of the end of the
Fiscal Quarters ending on December 31, 1999 and March 31,
2000 will not be less than the amount of $127,000,000 and
(ii) as of the end of any Fiscal Quarter ending on or after
June 30, 2000 will not be less than the sum of
(a) $137,000,000, plus (b) 50% of Borrower's Consolidated
net income earned during the period from January 1, 1999 to
the end of such Fiscal Quarter, if positive, or zero, if
negative, plus (c) 75% of the net proceeds from the issuance
of equity securities of Borrower after December 31, 1999, to
the end of such Fiscal Quarter.
As used in this subsection, the following terms shall have
the meanings set forth below:
(A) "Borrower's Consolidated Debt" means all
Consolidated liabilities and similar balance sheet items of
Borrower, together with all Funded Debt of any Related
Person.
(B) "Borrower's Consolidated Tangible Net Worth" means
the remainder of (x) all Consolidated assets of Borrower,
other than intangible assets (including without limitation
as intangible assets such assets as patents, copyrights,
licenses, franchises, goodwill, trade names, trade secrets
and leases other than oil, gas or mineral leases or leases
required to be capitalized under GAAP), minus (y) Borrower's
Consolidated liabilities."
Section 2.2. Events of Default. Section 8.2 of the
Original Agreement is hereby amended to add the following
subsection (o) thereto immediately following subsection (n)
thereof to read as follows:
"(o) Borrower fails to receive on or before April 30,
2000 proceeds from the issuance between January 1, 2000 and
April 30, 2000 of Borrower's capital stock, net of
reasonable out-of-pocket costs of issuance incurred by
Borrower, in an amount equal to or greater than $5,000,000."
ARTICLE III.
Conditions of Effectiveness
Section 3.1. Effective Date. This Amendment shall become
effective as of the date first above written when and only when:
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(a) Agent shall have received all of the following, at
Agent's office, duly executed and delivered and in form and
substance satisfactory to Agent, all of the following:
(i) the Amendment;
(ii) a certificate of the Secretary or Assistant
Secretary of Borrower and each Subsidiary Guarantor dated
the date of this Amendment certifying: (i) that resolutions
adopted by the Board of Directors of such Person authorize
the execution, delivery and performance of this Amendment by
such Person; (ii) the names and true signatures of the
officers of such Persons authorized to sign this Amendment;
and (iii) that all of the representations and warranties set
forth in Article IV hereof are true and correct at and as of
the time of such effectiveness;
(iii) such other supporting documents as Agent may
reasonably request.
(b) Borrower shall have paid, in connection with such Loan
Documents, all recording, handling, amendment and other fees
required to be paid to Agent pursuant to any Loan Documents.
(c) Borrower shall have paid, in connection with such Loan
Documents, all other fees and reimbursements to be paid to Agent
pursuant to any Loan Documents, or otherwise due Agent and
including fees and disbursements of Agent's attorneys.
ARTICLE IV.
Representations and Warranties
Section 4.1. Representations and Warranties of Borrower.
In order to induce each Lender to enter into this Amendment,
Borrower represents and warrants to each Lender that:
(a) The representations and warranties contained in
subsections of Section 5.1 of the Original Agreement are true and
correct at and as of the time of the effectiveness hereof.
(b) Borrower and each Subsidiary Guarantor are duly
authorized to execute and deliver this Amendment and are and will
continue to be duly authorized to borrow monies and to perform
their respective obligations under the Credit Agreement. Borrower
and each Subsidiary Guarantor have duly taken all corporate or
limited liability company action necessary to authorize the
execution and delivery of this Amendment and to authorize the
performance of their respective obligations hereunder and
thereunder.
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(c) The execution and delivery by Borrower and each
Subsidiary Guarantor of this Amendment, the performance by
Borrower and each Subsidiary Guarantor of their respective
obligations hereunder and thereunder and the consummation of the
transactions contemplated hereby and thereby do not and will not
conflict with any provision of law, statute, rule or regulation
or of the certificate of incorporation, bylaws, or other
organizational documents of Borrower or any Subsidiary Guarantor,
or of any material agreement, judgment, license, order or permit
applicable to or binding upon Borrower or any Subsidiary
Guarantor, or result in the creation of any lien, charge or
encumbrance upon any assets or properties of Borrower or any
Subsidiary Guarantor. Except for those which have been obtained,
no consent, approval, authorization or order of any court or
governmental authority or third party is required in connection
with the execution and delivery by Borrower or any Subsidiary
Guarantor of this Amendment or to consummate the transactions
contemplated hereby and thereby.
(d) When duly executed and delivered, each of this
Amendment and the Credit Agreement will be a legal and binding
obligation of Borrower and each Subsidiary Guarantor, enforceable
in accordance with its terms, except as limited by bankruptcy,
insolvency or similar laws of general application relating to the
enforcement of creditors' rights and by equitable principles of
general application.
(e) The audited annual Consolidated financial statements of
Borrower dated as of December 31, 1998 and the unaudited
quarterly Consolidated financial statements of Borrower dated as
of September 30, 1999 fairly present the Consolidated financial
position at such dates and the Consolidated statement of
operations and the changes in Consolidated financial position for
the periods ending on such dates for Borrower. Copies of such
financial statements have heretofore been delivered to each
Lender. Since such dates no material adverse change has occurred
in the financial condition or businesses or in the Consolidated
financial condition or businesses of Borrower.
ARTICLE V.
Miscellaneous
Section 5.1. Ratification of Agreements. The Original
Agreement as hereby amended is hereby ratified and confirmed in
all respects. The Loan Documents, as they may be amended or
affected hereby, are hereby ratified and confirmed in all
respects. Any reference to the Credit Agreement in any Loan
Document shall be deemed to be a reference to the Original
Agreement as hereby amended. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or
remedy of Lenders under the Credit Agreement, the Notes, or any
other Loan Document nor constitute a waiver of any provision of
the Credit Agreement, the Notes or any other Loan Document.
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Section 5.2. Survival of Agreements. All representations,
warranties, covenants and agreements of Borrower herein shall
survive the execution and delivery of this Amendment and the
performance hereof, including without limitation the making or
granting of the Loans, and shall further survive until all of the
Obligations are paid in full. All statements and agreements
contained in any certificate or instrument delivered by any
Related Person hereunder or under the Credit Agreement to any
Lender shall be deemed to constitute representations and
warranties by, and/or agreements and covenants of, Borrower under
this Amendment and under the Credit Agreement.
Section 5.3. Amendment Fee. In consideration of each
Lender's agreement to enter into this Amendment, Borrower will
pay to Agent for the account of each Lender an amendment fee in
the aggregate amount of $45,000, due and payable on the date
hereof.
Section 5.4. Loan Documents. This Amendment is a Loan
Document, and all provisions in the Credit Agreement pertaining
to Loan Documents apply hereto.
Section 5.5. Governing Law. This Amendment shall be
governed by and construed in accordance the laws of the State of
Texas and any applicable laws of the United States of America in
all respects, including construction, validity and performance.
Section 5.6. Counterparts; fax. This Amendment may be
separately executed in counterparts and by the different parties
hereto in separate counterparts, each of which when so executed
shall be deemed to constitute one and the same Amendment. This
Amendment may be validly executed and delivered by facsimile or
other electronic transmission.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS OF THE PARTIES.
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IN WITNESS WHEREOF, this Amendment is executed as of the
date first above written.
BORROWER: HECLA MINING COMPANY
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
Vice President and Chief
Financial Officer
SUBSIDIARY GUARANTORS: MWCA, INC.
By: /s/ J. Gary Childress
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J. Gary Childress
Vice President
KENTUCKY-TENNESSEE CLAY COMPANY
By: /s/ J. Gary Childress
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J. Gary Childress
Vice President
K-T FELDSPAR CORPORATION
By: /s/ J. Gary Childress
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J. Gary Childress
Vice President
MOUNTAIN WEST, L.L.C.
By: Hecla Mining Company, as
sole member
By: /s/ J. Gary Childress
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J. Gary Childress
Vice President -
Industrial Minerals
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AGENT AND LENDER: BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Principal
LENDERS: FIRST SECURITY BANK, N.A.
By: /s/ Xxxxx Xxxx
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Xxxxx Xxxx
Vice President
