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Exhibit 10.2
DATED as of June 29, 2000
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STANDARD BANK LONDON LIMITED
as Senior Creditor
STANDARD BANK LONDON LIMITED
as Subordinated Creditor
and
HECLA MINING COMPANY
as Hecla Mining
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SUBORDINATION AGREEMENT
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ASHURST XXXXXX XXXXX
Xxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 000 0000 0000
Fax: 000 0000 0000
SJR/627S.00008/1770886
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SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT is dated as of June 29, 2000 (this "Agreement")
AMONG:
(1) STANDARD BANK LONDON LIMITED ("Standard Bank"), a bank organized under the
laws of England and Wales, individually and as administrative agent under
the Senior Facility Agreement (in such capacity, the "Senior Creditor");
(2) STANDARD BANK LONDON LIMITED, a bank organized under the laws of England
and Wales as the Lender under the Subordinated Loan Agreement (in such
capacity, the "Subordinated Creditor"); and
(3) HECLA MINING COMPANY, a Delaware corporation ("Hecla Mining").
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 the Facility Agreement dated March 24, 2000
(the "Senior Facility Agreement") among Hecla Mining, as borrower, Standard
Bank, as initial lender, Standard Bank, as collateral agent, and Standard Bank,
as administrative agent;
WHEREAS, Hecla Mining has entered into the Subordinated Loan Agreement dated as
of June 29, 2000 (the "Subordinated Loan Agreement") between Hecla Mining, as
borrower, and Standard Bank, as lender;
WHEREAS, Minera Hecla Venezolana C.A., a company organized under the laws of
Venezuela and a wholly owned indirect subsidiary of Hecla Mining ("MHV") is
willing to guarantee the obligations of Hecla Mining to the Subordinated
Creditor arising under the Subordinated Loan Agreement and it is a condition
precedent to the making of the loan thereunder that MHV execute and deliver the
MHV Guaranty;
WHEREAS, Standard Bank, as administrative agent under the Senior Facility
Agreement (acting on behalf of the Lenders thereunder) is willing to permit the
credit accommodations contemplated by the Subordinated Loan Agreement, subject
to the terms and conditions of this Agreement;
WHEREAS, the Subordinated Creditor has agreed to subordinate its rights under
the Subordinated Loan Agreement to the rights of the Senior Creditor under the
Senior Facility Agreement on terms satisfactory to the Senior Creditor; and
WHEREAS, the parties hereto have agreed to enter into this Agreement in order to
set out the arrangements described in the previous recital.
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NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged by the Senior Creditor, each of the Subordinated
Creditor and Hecla Mining undertakes and agrees, for the benefit of the Senior
Creditor, as follows:
1 . DEFINITIONS; INTERPRETATION
1.1 Definitions. In this Agreement (including its preamble and recitals), the
following capitalized terms shall have the following meanings:
"Agreement" is defined in the preamble.
"Default" means, as the context may require, a Default under (and as
defined in) the Senior Facility Agreement and/or the Subordinated Loan
Agreement.
"Default Notice" is defined in Section 4.1.
"Hecla Mining" is defined in the preamble.
"Insolvency Proceeding" means, with respect to any Person, any voluntary or
involuntary liquidation, dissolution, sale of all or substantially all of
such Person's assets, marshalling of assets or liabilities, receivership,
conservatorship, assignment for the benefit of creditors, insolvency,
bankruptcy, reorganization, arrangement or composition of such person or
entity (whether or not pursuant to bankruptcy, insolvency or other similar
laws) and any other proceeding under laws for the protection of debtors
involving such Person or any of its assets.
"Liabilities" means all indebtedness and obligations of Hecla Mining,
howsoever created, arising or evidenced, whether created directly or
acquired by assignment or otherwise whether direct or indirect, absolute or
contingent or now or hereafter existing, or due or to become due, whether
at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise, and whether for principal, interest, fees, expenses or
otherwise.
"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.
"Majority Senior Lenders" means the Required Lenders under (and as defined
in) the Senior Facility Agreement.
"MHV" is defined in the fourth recital.
"MHV Guaranty" means the guaranty granted by MHV in favor of the
Subordinated Creditor.
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"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.
"Senior Creditor" is defined in the preamble and shall mean Standard Bank
in its individual capacity and in its capacity as agent for all lenders
(howsoever denominated) party from time to time to the Senior Facility
Agreement.
"Senior Facility Agreement" is defined in the second recital.
"Senior Liabilities" means all Liabilities owing from Hecla Mining to the
Senior Creditor and all other lenders party from time to time to the Senior
Facility Agreement arising under the Senior Facility Agreement and all
other Senior Loan Documents executed and delivered by Hecla Mining and/or
any of its Subsidiaries. "Senior Liabilities" shall include all amounts
which would become due but for the operation of the automatic stay under
Section 362(a) of the United States Bankruptcy Code, 11 U.S.C. Section
263(a), and the operation of Sections 502(b) and 506(b) of the United
States Bankruptcy Code, 11 U.S.C. Section 502(b) and Section 506(b) and any
other similar provisions arising under applicable law and shall include
interest accruing after the commencement of any Insolvency Proceeding
whether or not such interest is an allowed claim enforceable in such
Insolvency Proceeding.
"Senior Loan Documents" means the Senior Facility Agreement and all
documents and instruments delivered pursuant thereto or in connection
therewith.
"Standard Bank" is defined in the preamble.
"Subordinated Loan Agreement" is defined in the third recital.
"Subordinated Creditor" is defined in the preamble and shall mean Standard
Bank in its individual capacity and in its capacity as agent for all
lenders (howsoever denominated) party from time to time to the Subordinated
Loan Agreement.
"Subordinated Liabilities" means all Liabilities from time to time owing by
Hecla Mining to the Subordinated Creditor and all other lenders (howsoever
denominated) party from time to time to the Subordinated Loan Agreement
arising under the Subordinated Loan Agreement and all other Subordinated
Loan Documents executed and delivered by Hecla Mining and/or any of its
Subsidiaries. "Subordinated Liabilities" shall include all amounts which
would become due but for the operation of the automatic stay under Section
362(a) of the United States Bankruptcy Code, 11 U.S.C. 263(a) and the
operation of Sections 502(b) and 506(b) of the United
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States Bankruptcy Code, 11 U.S.C. Section 502(b) and Section 506(b) and any
other similar provisions arising under applicable law and shall include
interest accruing after the commencement of any Insolvency Proceeding
whether or not such interest is an allowed claim enforceable in such
Insolvency Proceeding.
"Subordinated Loan Documents" means the Subordinated Loan Agreement and all
documents and instruments delivered pursuant thereto or in connection
therewith.
"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.
"Termination Date" means the earliest date after the date hereof on which
all Senior Liabilities have been paid in cash and satisfied in full and
neither the Senior Creditor nor any lender (howsoever denominated) then
party to the Senior Facility Agreement has any outstanding commitment
(whether or not conditioned on the satisfaction of any condition precedent)
to lend money or otherwise extend credit to Hecla Mining under the Senior
Facility Agreement.
"Trigger Default" means the failure of Hecla Mining to pay any component of
any of the Senior Liabilities as and when due and payable, whether at a
stated maturity or as a result of acceleration or otherwise.
1.2 Interpretation
Unless the context otherwise requires or unless otherwise provided herein,
references in this Agreement to a particular agreement, instrument or
document also refer to and include all renewals, extensions, amendments,
modifications, supplements or restatements of any such agreement,
instrument or document (to the extent permitted by the terms thereof);
provided, however, that nothing contained in this Section shall be
construed to authorize any party hereto to execute or enter into any such
renewal, extension, amendment, modification, supplement or restatement. The
headings used herein are for purposes of convenience only and shall not be
used in construing the provisions hereof. The words "this Agreement," "this
instrument," "herein," "hereof," "hereby" and words of similar import refer
to this Agreement as a whole and not to any particular subdivision unless
expressly so limited. The word "or" is not exclusive, and the word
"including" (in its various forms) means
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"including without limitation." Pronouns in masculine, feminine and neuter
genders shall be construed to include any other gender, and words in the
singular form shall be construed to include the plural and vice versa,
unless the context otherwise requires.
2. SUBORDINATION TERMS
2.1 Subordination of Liabilities
(a) The Subordinated Creditor, individually and on behalf of any other
lenders (howsoever denominated) party from time to time to the
Subordinated Loan Agreement, hereby until the Termination Date (but
subject to Section 2.3) expressly and in all respects, subordinates
and makes junior and inferior:
(i) all Subordinated Liabilities and the payment of the Subordinated
Liabilities, to
(ii) the Senior Liabilities and the payment of the Senior Liabilities.
(b) Without the prior written consent of the Senior Creditor, prior to the
Termination Date (but subject to Section 2.3), the Subordinated
Creditor shall not accept, receive or collect (by set-off or other
manner) any payment or distribution on account of, or ask for, demand
or accelerate, directly or indirectly, any Subordinated Liability, and
Hecla Mining shall not make any such payment, except that Hecla Mining
may make payments of
(i) interest due and payable in accordance with Section 3.2 of the
Subordinated Loan Agreement; and
(ii) all amounts owing under Sections 4.2, 4.3, 4.4, 4.6, 9.3 and 9.4
of the Subordinated Loan Agreement and in respect of the
"Additional Costs Rate" thereunder,
so long as no Trigger Default has occurred and is continuing at the
time of such payment.
2.2 Subordination of Liens. Except for the right to set off against the
Subordinated Liabilities any balances, credit, deposits accounts or moneys
of Hecla Mining at the banks and financial institutions that are parties to
the Subordinated Loan Agreement, any Liens granted by Hecla Mining or any
of its Subsidiaries at any time securing the Subordinated Liabilities are
hereby made, and will at all times prior to the Termination Date be,
subject, subordinate, junior and inferior in all respects to all Liens
securing the Senior Liabilities; provided that this Section shall not be
construed as a consent by the Senior Creditor to any Liens prohibited by
the Senior Facility Agreement or any other Loan Document.
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2.3 Assets Wrongly Received. If the Subordinated Creditor receives any payment
or distribution of any kind (whether in cash, securities or other property)
in contravention of this Agreement including as a result of a payment made
under the MHV Guaranty, it shall hold such payment or distribution in trust
for the Senior Creditor, shall segregate the same from all other cash or
assets it holds, and shall immediately deliver the same to Senior Creditor
for the benefit of Senior Creditor in the form received by the Subordinated
Creditor (together with any necessary endorsement) to be applied to or, at
Senior Creditor's option held as collateral for, the payment or prepayment
of the Senior Liabilities.
2.4 No Acceleration, Institution of Collection Proceedings or Interference with
Senior Creditor's Collateral. (a) Prior to the Termination Date, the
Subordinated Creditor shall not accelerate or collect or attempt to collect
any part of the Subordinated Liabilities, whether through the commencement
or joinder of an action or proceeding (judicial or otherwise) or an
Insolvency Proceeding, the enforcement of any rights against any property
of Hecla Mining (including any such enforcement by foreclosure,
repossession or sequestration proceedings), making demand on MHV pursuant
to the MHV Guaranty, or otherwise except when the Senior Creditor shall
either request that the Subordinated Creditor join it in bringing any such
proceeding or request that the Subordinated Creditor file claims in
connection with any such proceeding. The restriction described in this
clause shall not apply to the Subordinated Creditor if:
(i) an Insolvency Proceeding with respect to Hecla Mining is
commenced by Persons other than Subordinated Creditor; or
(ii) the Senior Creditor accelerates the Senior Liabilities or
enforces against the collateral securing the Senior Liabilities.
(b) For the avoidance of doubt, any moneys received under this Section
shall be subject to the Subordinated Creditor's obligations under
Sections 2.1, 2.3 and 2.5.
2.5 Insolvency Proceedings.
(a) Upon any distribution of all or any of the assets of Hecla Mining,
upon the dissolution, winding up, liquidation or reorganization of
Hecla Mining (whether or not in any Insolvency Proceeding), or upon an
assignment for the benefit of creditors or any other marshalling of
the assets and liabilities of Hecla Mining, then any payment or
distribution of any kind (whether in cash, securities or other
property) which otherwise would be payable or deliverable upon or with
respect to the Subordinated Liabilities shall be paid and delivered
directly to the Senior Creditor to be applied to or, at Senior
Creditor's option held as collateral for, the payment or prepayment of
the Senior Liabilities.
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(b) During the pendency of any Insolvency Proceeding with respect to Hecla
Mining, Subordinated Creditor shall promptly execute, deliver and file
any documents and instruments which Senior Creditor may from time to
time request in order to (i) file appropriate proofs of claim in
respect of the Subordinated Liabilities in such Insolvency Proceeding,
(ii) instruct any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making any payment or distribution in
such Insolvency Proceeding to make all payments which might otherwise
be payable or deliverable in respect of the Subordinated Liabilities
directly to the Senior Creditor, and (iii) otherwise effect the
purposes of this Agreement.
(c) Cumulative of the foregoing, the Subordinated Creditor hereby grants
to the Senior Creditor the express power and authority (which power
and authority are coupled with an interest and shall be irrevocable)
to do the following until the Termination Date in the name of and on
behalf of the Subordinated Creditor if the Subordinated Creditor fails
to do so within 30 days after written request therefor by the Senior
Creditor:
(i) to file appropriate claims (whether by proofs of claim or
otherwise) in any Insolvency Proceeding and to take such other
actions in such Insolvency Proceeding as may be necessary or, in
the reasonable opinion of the Senior Creditor, desirable to
prevent the waiver or release of any claims for Subordinated
Liabilities or to enforce the terms of this Agreement.
(ii) to prosecute and enforce such claims in such Insolvency
Proceeding, to initiate and participate in other proceedings to
enforce such Subordinated Liabilities, and to collect and receive
any and all such cash or other assets which may be paid on
account of Subordinated Liabilities in such Insolvency Proceeding
or in any other proceeding.
The Senior Creditor shall, however, have no duty to the Subordinated
Creditor to exercise any of the foregoing power and authority, and the
Senior Creditor may do so or decline to do so in its sole and absolute
discretion.
2.6 Assignment and Marking of Subordinated Liabilities. Prior to the
Termination Date,
the Subordinated Creditor shall not without the prior consent of the Senior
Creditor:
(a) transfer, assign, pledge, encumber or otherwise dispose of any right,
claim or interest in all or any part of the Subordinated Liabilities
to any Person other than the Senior Creditor; provided, however, that
the foregoing shall not apply to transfers and assignments permitted
and contemplated by the Subordinated Loan Agreement,
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(b) subordinate any of the Subordinated Liabilities to any Liabilities
other than the Senior Liabilities.
At the request of the Senior Creditor, the Subordinated Creditor shall
cause each instrument to which it is a party that evidences all or any part
of the Subordinated Liabilities to bear upon its face a conspicuous
statement or legend to the effect that such instrument and the indebtedness
evidenced thereby are subordinate to the payment of all Senior Liabilities
pursuant to this Agreement.
2.7 Waiver. The Subordinated Creditor hereby waives promptness, diligence,
notice of acceptance, and any notice (other than as specifically provided
in Article 4) with respect to any of the Senior Liabilities and this
Agreement, and any requirement that the Senior Creditor exhaust any other
right or take any action against the Subordinated Creditor or any other
Person or any collateral.
2.8 Subrogation.
(a) No payment or distribution to the Senior Creditor pursuant to the
provisions of this Agreement shall entitle the Subordinated Creditor
to exercise any rights of subrogation in respect thereof prior to the
Termination Date, and until such time the Subordinated Creditor shall
not have any right of subrogation to the Senior Creditor on account of
this Agreement.
(b) After the Termination Date, and provided that no payments received by
the Senior Creditor are voidable or must otherwise be returned, the
Subordinated Creditor shall be subrogated to the rights of the Senior
Creditor to receive distributions applicable to the Senior Liabilities
to the extent that distributions otherwise payable to the Subordinated
Creditor have been applied to the payment of the Senior Liabilities
owing to the Senior Creditor.
(c) Any distribution made pursuant to this Agreement to the Senior
Creditor on account of the Subordinated Liabilities owing by Hecla
Mining to the Subordinated Creditor, shall not, as between such
Persons, be considered a payment of the Subordinated Liabilities.
2.9 Reinstatement. The Subordinated Creditor agrees that this Agreement shall
continue to be effective or be reinstated, as the case may be, if at any
time any payment (in whole or in part) of any of the Senior Liabilities
owing to it is rescinded or must otherwise be restored by the Collateral
Agent, upon an Insolvency Proceeding or otherwise, all as though such
payment had not been made.
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2.10 Obligations Hereunder Not Affected. No action or inaction of the Senior
Creditor or any other Person, and no change of law or circumstances, shall
release or diminish the obligations, liabilities, agreements or duties
hereunder of Subordinated Creditor, affect this Agreement in any way, or
afford any Person any recourse against Senior Creditor. Without limiting
the generality of the foregoing, none of the obligations, liabilities,
agreements and duties of the Subordinated Creditor under this Agreement
shall be released, diminished, impaired, reduced or affected by the
occurrence of any of the following at any time or from time to time, even
if occurring without notice to or without the consent of the Subordinated
Creditor (any right of the Subordinated Creditor to be so notified or to
require such consent being hereby waived, except as set forth in
Article 5):
(a) the release (by operation of law or otherwise) of Hecla Mining from
its duty to pay any of the Senior Liabilities; or
(b) any invalidity, deficiency, illegality or unenforceability of any of
the Senior Liabilities or the documents and instruments evidencing,
governing or securing the Senior Liabilities, in whole or in part, any
bar by any statute of limitations or other law to recovery on any of
the Senior Liabilities, or any defense or excuse for failure to
perform on account of force majeure, act of God, casualty,
impracticability or other defense or excuse with respect to the Senior
Liabilities whatsoever; or
(c) the taking or accepting by Senior Creditor of any additional security
for or subordination to any or all of the Senior Liabilities; or
(d) any release, discharge, surrender, exchange, subordination, non-
perfection, impairment, modification or stay of actions or lien
enforcement proceedings against, or loss of any security at any time
existing with respect to, the Senior Liabilities; or
(e) the modification or amendment of, or waiver of compliance with, any
terms of the documents and instruments evidencing, governing or
securing the Senior Liabilities; or
(f) the insolvency, bankruptcy or disability of Hecla Mining or the filing
or commencement of any Insolvency Proceeding involving Hecla Mining or
other proceeding with respect thereto; or
(g) any increase or decrease in the amount of the Senior Liabilities or in
the time, manner or terms in accordance with which the Senior
Liabilities are to be paid, or any adjustment, indulgence,
forbearance, waiver or compromise that may be granted or given with
respect to the Senior Liabilities; or
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(h) any neglect, delay, omission, failure or refusal of the Senior
Creditor to take or prosecute any action for the collection of the
Senior Liabilities or to foreclose or take or prosecute any action in
connection with any instrument or agreement evidencing or securing all
or part of the Senior Liabilities; or
(i) any release of the proceeds of collateral which may come into the
possession of the Senior Creditor or its affiliates; or
(j) any judgment, order or decree by any court or governmental agency or
authority that a payment or distribution by Hecla Mining to the Senior
Creditor upon the Senior Liabilities is a preference or fraudulent
transfer under applicable bankruptcy or similar laws for the
protection of creditors or is for any other reason required to be
refunded by the Senior Creditor or paid by the Senior Creditor to any
other Person; or
(k) any modification of, or waiver of compliance with, any terms of this
Agreement with respect to any party hereto; or
(l) any neglect, delay, omission, failure or refusal of the Senior
Creditor to take or prosecute any action against any Person in
connection with this Agreement.
3. AMENDMENTS TO DOCUMENTS
3.1 Amendments to Subordinated Loan Agreement. Neither Hecla Mining nor the
Subordinated
Creditor will, without the prior written consent of the Senior Creditor:
(a) agree to or take any action which would increase the rate of interest
payable (or accreting) under the Subordinated Loan Agreement or
otherwise increase the cost to Hecla Mining of the Subordinated
Liabilities other than as contemplated by the Subordinated Loan
Agreement as in effect at the date hereof;
(b) agree to or take any action which would postpone the Maturity Date (as
defined in the Subordinated Loan Agreement) as in effect at the date
hereof;
(c) agree to or take any action which would increase the Commitment Amount
(as defined in the Subordinated Loan Agreement) as in effect at the
date hereof;
(d) agree to or take any action to amend the timings and amounts of the
payments of principal and interest in respect of the Subordinated
Liabilities as in effect at the date hereof; and
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(e) agree to or take any action to extend or create a Lien (howsoever
denominated) over any property of Hecla Mining or its Subsidiaries
which Lien would secure or purport to secure the Subordinated
Liabilities.
3.2 Amendments to Senior Facility Agreement: Neither Hecla Mining nor the
Senior Creditor will, without the prior written consent of the Subordinated
Creditor:-
(a) agree to or take any action which would increase the rate of interest
payable under the Senior Facility Agreement or otherwise increase the
cost to Hecla Mining of the Senior Liabilities other than as
contemplated by the Senior Facility Agreement as in effect at the date
hereof;
(b) agree to or take any action which would postpone the Maturity Date (as
defined in the Senior Facility Agreement) as in effect at the date
hereof;
(c) agree to or take any action which would increase the Aggregate
Commitment Amount (as defined in the Senior Facility Agreement) as in
effect at the date hereof;
(d) agree to or take any action to amend the timings and amounts of the
payments of principal and interest in respect of the Senior
Liabilities as in effect at the date hereof; and
(e) agree to or take any action to extend or create a Lien (howsoever
denominated) over any property of Hecla Mining or its Subsidiaries
which Lien would secure or purport to secure the Senior Liabilities
other than in effect at the date hereof.
4. INFORMATION AND COOPERATION
4.1 Defaults. Upon the Senior Creditor and/or the Subordinated Creditor
becoming aware of the occurrence of any relevant Default, the Senior
Creditor and/or the Subordinated Creditor will use its best efforts to
promptly notify the other in writing thereof (a "Default Notice"); provided
that the failure to give a Default Notice shall not impair the
subordination made hereby in any manner or impose any liability on Senior
Creditor.
4.2 Waivers. Upon the waiver or remedy of any relevant Default, the Senior
Creditor and/or the Subordinated Creditor will use its best efforts to
promptly notify the other in writing of such waiver or remedy; provided
that the failure to give such notice shall not impair the subordination
made hereby in any manner or impose any liability on Senior Creditor.
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5. CONSENT BY THE SENIOR CREDITOR
5.1 Consent by Senior Creditor. The Senior Creditor (i) consents to the
execution and delivery of the Subordinated Loan Agreement and the MHV
Guaranty, (ii) waives any Default under Sections 7.3.2 and 7.3.3 of the
Senior Facility Agreement which may arise by reason of such execution and
delivery and (iii) agrees that the Subordinated Loan Documents and the
Subordinated Liabilities shall be excluded from the provisions of Sections
7.3.2(k) and 7.3.3(k) of the Senior Facility Agreement.
6. MISCELLANEOUS
6.1 Waivers, Amendments, etc. The provisions of this Agreement may from time to
time be amended, modified or waived, if such amendment, modification or
waiver is in writing and consented to by Hecla Mining, the Subordinated
Creditor and the Senior Creditor.
No failure or delay on the part of either the Senior Creditor or the
Subordinated Creditor in exercising any power or right under this Agreement
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
either the Senior Creditor or the Subordinated Creditor in any case shall
entitle it to any notice or demand in similar or other circumstances. No
waiver or approval by either the Senior Creditor or the Subordinated
Creditor under this Agreement 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.
6.2 Notices. All notices and other communications provided to any party to this
Agreement shall be in writing or by telex or by facsimile and addressed or
delivered to it at its address 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 a notice to the other parties. Any notice, if
sent by hand delivery or courier delivery, shall be deemed received when
delivered and, if transmitted by telex or facsimile, shall be deemed given
when transmitted (answerback confirmed in the case of telexes and
transmission confirmed by the sending facsimile machine in the case of
facsimiles).
6.3 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto (and, in the case of each of the
Senior Creditor and the Subordinated Creditor, to the benefit of the
respective lenders and other financial institutions participating in the
Senior Facility Agreement and the Subordinated Loan Agreement (if any),
respectively, and their respective successors and assigns); provided,
however, that Hecla Mining may not assign or transfer its rights or
obligations hereunder without the prior written consent of the Senior
Creditor and the Subordinated Creditor.
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6.4 Severability. Any provision of this Agreement 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 affecting the
validity or enforceability of such provision in any other jurisdiction.
6.5 Headings. The various headings of this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement or any provisions hereof or thereof.
6.6 Governing Law; Entire Agreement.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
(b) This Agreement constitutes the entire understanding between the
parties hereto with respect to the subject matter hereof and
supersedes any prior agreements, written or oral, with respect
thereto.
6.7 Waiver of Jury Trial. THE SENIOR CREDITOR, THE SUBORDINATED CREDITOR AND
HECLA MINING 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 COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF THE SENIOR CREDITOR, THE SUBORDINATED CREDITOR OR
HECLA MINING.
6.8 Counterparts; Execution by facsimile. This Agreement may be separately
executed in any number of counterparts, each of which when so executed
shall be deemed to constitute one and the same agreement. This Agreement
may be duly executed by facsimile or other electronic transmission.
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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.
STANDARD BANK LONDON LIMITED
in its capacity as the Senior Creditor
By: /s/ Xxxxxx Xxxxxx
Title: Assistant General Manager
By: /s/ Don M. Newport
Title: Head of Mining Finance
Address for Notices:
Xxxxxx Xxxxxx Xxxxx
00 Xxxxxxx Xxxx
Xxxxxx XX0X 0XX
England
Facsimile No.: 00-00-0000-0000
Attention:
STANDARD BANK LONDON LIMITED
in its capacity as the Subordinated Creditor
By: /s/ Xxxxxx Xxxxxx
Title: Assistant General Manager
By: /s/ Don M. Newport
Title: Head of Mining Finance
Address for Notices:
Xxxxxx Xxxxxx Xxxxx
00 Xxxxxxx Xxxx
Xxxxxx XX0X 0XX
England
Facsimile No.: 00-00-0000-0000
Attention:
16
ACKNOWLEDGEMENT AND AGREEMENT
The undersigned, Hecla Mining Company, hereby acknowledges receipt of a copy of
the foregoing Subordination Agreement, waives notice of acceptance thereof by
the Senior Creditor and agrees to be bound by the terms and provisions thereof,
to make no payments or distributions contrary to the terms and provisions
thereof, and to do every other act and thing necessary or appropriate to carry
out such terms and provisions,
HECLA MINING COMPANY
By: /s/ Xxxxxxx X. Xxxxx
Title: Vice President - General Counsel
Address for Notices:
Hecla Mining Company
0000 Xxxxxxx Xxxxx
Xxxxx x'Xxxxx, Xxxxx
00000-0000
Facsimile No.: 0-000-000-0000
Dated: June 29, 2000
