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Exhibit 10.2(a)
FIRST AMENDMENT TO RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO RESTATED CREDIT AGREEMENT (herein
called the "Amendment") made as of June 25, 1999 by and among
Hecla Mining Company, a Delaware corporation ("Borrower"), the
undersigned subsidiary guarantors ("Subsidiary Guarantors"),
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 First 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. DEFINED TERMS. (a) The definition of "Cash
Earnings" in Section 1.1 of the Original Agreement is hereby
amended in its entirety to read as follows:
"'CASH EARNINGS' means as of the end of any calendar
month, Borrower's Consolidated net income for the twelve
(12) consecutive calendar months then ended plus
(i) nonrecurring losses for such calendar month, (ii) other
non-cash charges taken into account in determining such net
income and (iii) exploration expenses taken into account in
determining such net income, but only to the extent that
exploration expenses exceed $3,000,000, minus
(iv) nonrecurring gains taken into account in determining
such net income, and (v) any cash dividends that have been
declared, accrued or paid (without duplication) on common or
preferred stock during such twelve-month period; provided
that the net income of the Project Subsidiaries shall be
excluded from the calculation of 'Cash Earnings'."
(b) The definition of "Permitted Investments" in Section
1.1 of the Original Agreement is hereby amended by adding thereto
the following clauses (g) and (h) immediately after clause (f)
thereof to read as follows:
"(g) consisting of the purchase of the capital stock
of the Project Subsidiaries.
"(h) consisting of capital contributions, loans or
other advances of funds to the Project Subsidiaries which do
not exceed $2,000,000 in the aggregate."
(c) The following definition of "Project Subsidiaries" is
hereby added to Section 1.1 of the Original Agreement immediately
following the definition of "Prohibited Lien":
"'PROJECT SUBSIDIARIES' means Monarch Resources
Investments Limited, a company organized under the laws of
Bermuda, and Monarch Minera Suramerica, C.A., a company
organized under the laws of Venezuela."
(d) The following definition of "Subordinated Credit
Agreement" is hereby added to Section 1.1 of the Original
Agreement immediately following the definition of Subsidiary
Guarantor Security Agreement":
"'SUBORDINATED CREDIT AGREEMENT' means the credit
agreement dated June 25, 1999 among Borrower, Standard Bank
London Limited, as administrative agent and collateral
agent, and certain banks and financial institutions."
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Section 2.2. SUBSIDIARY GUARANTORS. The first sentence of
Section 6.14 of the Original Agreement is hereby amended in its
entirety to read as follows:
"Borrower shall cause each of its Subsidiaries (other
than the Project Subsidiaries) now existing or created,
acquired or coming into existence after the date hereof that
has assets at any time in excess of $1,000,000 (calculated
at net book value) or having net cash earnings constituting
more than ten percent (10%) of Cash Earnings as of the end
of any Fiscal Quarter (calculated on a rolling twelve-month
basis as set forth in the definition of Cash Earnings in
Section 1.1 and then divided by four), to become a
Subsidiary Guarantor and a party hereto at such time and to
execute and deliver to Agent a Subsidiary Guarantor Security
Agreement, and shall cause such Subsidiary to deliver at
such time written evidence satisfactory to Agent and its
counsel that such Subsidiary has taken all corporate or
partnership action necessary to duly approve and authorize
its joinder hereto and the performance of its obligations as
a Subsidiary Guarantor hereunder."
Section 2.3. LIMITATION ON LIENS. Section 7.1(b) of the
Original Agreement is hereby amended by adding new subsections
(vii) and (viii) immediately after subsection (vi) thereof to
read as follows:
"(vii) Liens in the stock and assets of the
Project Subsidiaries and in the agreement for the
purchase thereof.
"(viii) rights of the banks and financial
institutions that are parties to the Subordinated
Credit Agreement to setoff against the obligations
owing under the Subordinated Credit Agreement any
balances, credit, deposits accounts or moneys of
Borrower at such banks and financial institutions."
Section 2.4. LIMITATION ON CREDIT EXTENSIONS. Section 7.7
of the Original Agreement is hereby amended by adding thereto the
following subsection (d) immediately after subsection (c) to read
as follows:
"(d) loans that are part of the Permitted Investments."
ARTICLE III.
CONDITIONS OF EFFECTIVENESS
Section 3.1. EFFECTIVE DATE. This Amendment shall become
effective as of the date first above written when and only when:
(a) Agent shall have received all of the following, at
Agent's office, duly executed and delivered and in form and
substance satisfactory to Agent, all of the following:
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(i) the Amendment;
(ii) a Subordination Agreement by and between Agent and
Standard Bank London Limited, as Agent under the
Subordinated Credit Agreement;
(iii) a certificate of the Secretary of Borrower
dated the date of this Amendment certifying: (i) that
resolutions adopted by the Board of Directors of the
Borrower authorize the execution, delivery and performance
of this Amendment by Borrower; (ii) the names and true
signatures of the officers of the Borrower 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; and
(iv) 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; and
(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 is duly authorized to execute and deliver this
Amendment and is and will continue to be duly authorized to
borrow monies and to perform its obligations under the Credit
Agreement. Borrower has duly taken all corporate action necessary
to authorize the execution and delivery of this Amendment and to
authorize the performance of the obligations of Borrower
hereunder.
(c) The execution and delivery by Borrower of this
Amendment, the performance by Borrower of its obligations
hereunder and the consummation of the transactions contemplated
hereby do not and will not conflict with any provision of law,
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statute, rule or regulation or of the certificate of
incorporation and bylaws of Borrower, or of any material
agreement, judgment, license, order or permit applicable to or
binding upon Borrower, or result in the creation of any lien,
charge or encumbrance upon any assets or properties of Borrower.
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 of this Amendment or to consummate the
transactions contemplated hereby.
(d) When duly executed and delivered, each of this
Amendment and the Credit Agreement will be a legal and binding
obligation of Borrower, 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 March 31, 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. Any reference to the Credit Agreement in any Loan
Document shall be deemed to be a reference to the Original
Agreement as hereby amended. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or
remedy of Lenders under the Credit Agreement, the Notes, or any
other Loan Document nor constitute a waiver of any provision of
the Credit Agreement, the Notes or any other Loan Document.
Section 5.2. SURVIVAL OF AGREEMENTS. All representations,
warranties, covenants and agreements of Borrower herein shall
survive the execution and delivery of this Amendment and the
performance hereof, including without limitation the making or
granting of the Loans, and shall further survive until all of the
Obligations are paid in full. All statements and agreements
contained in any certificate or instrument delivered by any
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Related Person hereunder or under the Credit Agreement to any
Lender shall be deemed to constitute representations and
warranties by, and/or agreements and covenants of, Borrower under
this Amendment and under the Credit Agreement.
Section 5.3. LOAN DOCUMENTS. This Amendment is a Loan
Document, and all provisions in the Credit Agreement pertaining
to Loan Documents apply hereto.
Section 5.4. GOVERNING LAW. This Amendment shall be
governed by and construed in accordance the laws of the State of
Texas and any applicable laws of the United States of America in
all respects, including construction, validity and performance.
Section 5.5. COUNTERPARTS; FAX. This Amendment may be
separately executed in counterparts and by the different parties
hereto in separate counterparts, each of which when so executed
shall be deemed to constitute one and the same Amendment. This
Amendment may be validly executed and delivered by facsimile or
other electronic transmission.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS OF THE PARTIES.
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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
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AGENT AND LENDER: NATIONSBANK, N.A.
By: /s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx,
Senior Vice President
LENDERS: FIRST SECURITY BANK, N.A.
By: /s/
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Name:
Title:
