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EXHIBIT 10.1(d)
THIRD AMENDMENT TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT (this "Third Amendment"),
dated as of November 9, 1993, is made and entered into by and among HECLA
MINING COMPANY, a Delaware corporation ("Hecla"), together with its
wholly-owned subsidiaries, COLORADO AGGREGATE COMPANY OF NEW MEXICO INC., a New
Mexico corporation ("CAC"), KENTUCKY-TENNESSEE CLAY COMPANY, a Delaware
corporation ("K-T Clay"), K-T FELDSPAR CORPORATION, a North Carolina
corporation ("K-T Feldspar") (Hecla, CAC, K-T Clay and K-T Feldspar are
referred to herein collectively as the "Borrowers" and individually as a
"Borrower"), the banks named on the signature pages hereto (collectively, the
"Banks" and each individually, a "Bank"), and MASE WESTPAC LIMITED, NEW YORK
BRANCH, a New York State licensed branch of Mase Westpac Limited, an authorized
institution under the Banking Act of 1987 in England, as agent for the Banks
(in such capacity, together with its successors in such capacity, the "Agent").
RECITALS
WHEREAS, the Borrowers, certain banks and the Agent entered into a
Credit Agreement, dated as of January 25, 1993, as amended April 12, 1993 and
August 11, 1993 (such Credit Agreement as so amended, the "Credit Agreement"),
pursuant to which the banks party thereto agreed, subject to the terms and
conditions of the Credit Agreement, to provide financing to the Borrowers in an
aggregate amount not to exceed at any time the lesser of Twenty-Four Million
Dollars ($24,000,000), as such amount is reduced from time to time pursuant to
the terms of the Credit Agreement, or the Borrowing Base (as defined in the
Credit Agreement); and
WHEREAS, the parties hereto desire to amend the Credit Agreement to
increase the maximum limit for borrowing and to make certain other amendments
to the Credit Agreement and other Loan Documents as provided herein;
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, and for other good and valuable consideration
(including without limitation the consideration recited in the Credit
Agreement), the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed thereto in the Credit
Agreement.
2. Addition of New Bank; Reallocation of Banks' Interests in Credit.
Each Bank shall be deemed a Bank (as defined in the Credit Agreement) for all
purposes under the Credit Agreement and the other Loan Documents, each as
amended hereby, to the extent of such Bank's interest as set forth opposite
such Bank's name on the
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signature pages hereto. Each Bank shall have the same rights and benefits as
against the Borrowers and the same obligations to the Borrowers as it would
have had as if it were a Bank (as defined in the Credit Agreement) to the
extent of its interest as set forth opposite such Bank's name on the signature
pages hereto, or if such Bank was an original Bank under the Credit Agreement,
as if its interest under the Credit Agreement were the same as that set forth
opposite such Bank's name on the signature pages hereto. All references in the
Credit Agreement and the other Loan Documents, each as amended hereby, to the
Banks shall as of the effective date hereof and thereafter be construed as a
reference to the Banks named on the signature pages hereto, each to the extent
of its interest as set forth opposite such Bank's name on the signature pages
hereto. All references in the Credit Agreement and the other Loan Documents to
any Bank's pro rata share of the Commitment or of any Advances and all
references of similar import shall be deemed to be a reference to such Bank's
pro rata share as set forth opposite such Bank's name on the signature pages
hereto.
3. Amendments to Credit Agreement.
(a) The Second Recital on page 1 of the Credit Agreement
is hereby amended by replacing the phrase "TWENTY-FOUR MILLION DOLLARS
($24,000,000)" with the phrase "THIRTY MILLION DOLLARS ($30,000,000)".
(b) The definition of "AVAILABILITY PERIOD" in Section
1.1 of the Credit Agreement is hereby amended by replacing the date "DECEMBER
31, 1994" with the date "DECEMBER 31, 1996".
(c) The definition of "BASE COMMITMENT" in Section 1.1 of
the Credit Agreement is hereby amended by replacing the amount "$24,000,000"
with the amount "$30,000,000".
(d) Clause (e) of the definition of "BORROWING BASE" in
Section 1.1 of the Credit Agreement is hereby amended by replacing the phrase
"ONE HUNDRED PERCENT (100%) OF THE VALUE OF EACH BORROWER'S ELIGIBLE CASH
EQUIVALENTS" with the phrase "ONE HUNDRED PERCENT (100%) OF THE VALUE OF EACH
BORROWER'S ELIGIBLE CASH EQUIVALENTS THAT ARE SUBJECT TO A VALID AND
ENFORCEABLE PERFECTED FIRST PRIORITY SECURITY INTEREST OR LIEN IN FAVOR OF THE
AGENT".
(e) The definition of "ELIGIBLE INVESTMENTS" in Section
1.1 of the Credit Agreement is hereby amended by replacing the phrase
"[MAJORITY BANKS]" with the phrase "MAJORITY BANKS".
(f) Clause (e)(ii) of the definition of "ELIGIBLE
RECEIVABLES" in Section 1.1 of the Credit Agreement is hereby amended by
replacing the phrase "SUBPARAGRAPH (C)(I)" with the phrase "SUBPARAGRAPH
(E)(I)".
(g) The definition of "INITIAL REDUCTION DATE" in Section
1.1 of the Credit Agreement is hereby amended in its entirety to read as
follows:
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"INITIAL REDUCTION DATE" MEANS DECEMBER 31, 1995.
(h) Section 2.7 of the Credit Agreement is hereby amended
in its entirety to read as follows:
SECTION 2.7 REPAYMENT OF ADVANCES DUE TO SCHEDULED REDUCTIONS
OF BASE COMMITMENT. ON EACH OF THE DATES (A "REDUCTION DATE") SET
FORTH IN THE SCHEDULE SET FORTH BELOW (THE "COMMITMENT REDUCTION
SCHEDULE"), THE BASE COMMITMENT SHALL BE REDUCED TO THE AMOUNT SET OUT
OPPOSITE SUCH DATE IN THE THIRD COLUMN OF THE COMMITMENT REDUCTION
SCHEDULE AND, IF THE SUM OF THE OUTSTANDING PRINCIPAL BALANCE OF ALL
ADVANCES MADE UNDER THIS ARTICLE 2 EXCEEDS THE RESULTING COMMITMENT ON
SUCH DATE, THE BORROWERS SHALL REPAY AN AMOUNT OF DOLLARS EQUAL TO
SUCH EXCESS. THE COMMITMENT REDUCTION SCHEDULE SHALL BE AS FOLLOWS:
SCHEDULED BASE BASE
REDUCTION COMMITMENT COMMITMENT
DATE REDUCTION OUTSTANDING
--------- ---------- -----------
12/31/95 $3,750,000 $26,250,000
03/31/96 3,750,000 22,500,000
06/30/96 3,750,000 18,750,000
09/30/96 3,750,000 15,000,000
12/31/96 15,000,000 -0-
(i) Section 2.9(b) of the Credit Agreement is hereby
amended by replacing the phrase "THEN TO PRINCIPAL PRO RATA OVER THE AMOUNTS
OWING ON THE THEN-REMAINING SCHEDULED REDUCTION DATES AS SET FORTH IN SECTION
2.7 HEREOF" with the phrase "THEN TO PRINCIPAL".
(j) The proviso of Section 4.1 of the Credit Agreement is
hereby amended in its entirety to read as follows:
PROVIDED, HOWEVER, THAT WITH RESPECT TO THE SECURITY INTEREST IN CASH
EQUIVALENTS, THE BORROWERS SHALL BE OBLIGATED ONLY TO USE THEIR BEST
EFFORTS TO PERFECT SUCH SECURITY INTEREST.
(k) Section 12.11 of the Credit Agreement is hereby
amended by replacing the phrase "TANGIBLE NET WORK" with the phrase "TANGIBLE
NET WORTH".
4. Amendments to Security Agreement. The proviso of Section 4.1(a) of
the Security Agreement is hereby amended in its entirety to read as follows:
PROVIDED, HOWEVER, THAT WITH RESPECT TO THE SECURITY INTEREST IN CASH
EQUIVALENTS UNDER SECTION 2.1(E) HEREOF, THE PARTIES AGREE THAT THE
BORROWERS SHALL BE OBLIGATED ONLY TO USE THEIR BEST EFFORTS TO PERFECT
SUCH SECURITY INTEREST;
5. Amendment to Other Loan Documents. The parties hereby agree that
the other Loan Documents shall be amended to the extent
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necessary to conform to and be consistent with the amendments herein contained.
6. Amendment Fee. The Borrowers shall pay the Banks an amendment fee
equal to one-half of one percent (0.5%) of each Bank's pro rata share of the
Commitment as set forth opposite such Bank's name on the signature pages
hereto. Such fee shall be due and payable upon the execution and delivery of
this Third Amendment.
7. Representations and Warranties. Each Borrower hereby certifies as
of the date hereof that the representations and warranties contained in Article
8 of the Credit Agreement and any other Loan Document executed and delivered in
connection therewith to which it is a party are true and accurate in all
material respects as though made on and as of the date hereof, except that
Kingswood Resources Inc. should be added to and Acadia Mineral Ventures Limited
should be deleted from Schedule 1 to the Credit Agreement.
8. Conditions to Effectiveness of Third Amendment. This Third
Amendment shall become effective and binding on the parties hereto upon receipt
by the Agent of each of the following, in form and substance reasonably
satisfactory to Majority Banks:
(a) counterparts of this Third Amendment duly executed by
each of the Borrowers, the Agent and the Banks;
(b) a Note for each Bank duly executed by the Borrowers
evidencing such Bank's pro rata share of the Commitment as set forth opposite
such Bank's name on the signature pages hereto;
(c) an opinion or opinions of counsel for the Borrowers;
(d) a copy of a resolution or resolutions passed by the
Board of Directors of each Borrower, certified by the Secretary or an Assistant
Secretary of such Borrower as of a recent date as being in full force and
effect on such date, authorizing the increase of the maximum limit for
borrowing provided hereby and the execution, delivery and performance of this
Third Amendment and the other Loan Documents to which it is or will be a party
in connection herewith;
(e) evidence that the amendment fees provided for herein
have been paid in full; and
(f) such other evidence as Majority Banks may reasonably
request to establish the consummation of the transactions contemplated hereby,
the taking of all proceedings in connection herewith and compliance with the
conditions set forth in this Third Amendment.
9. Counterparts. This Third Amendment may be executed in one or more
counterparts, each of which when so executed, irrespective of the date of its
execution and delivery, shall be deemed an
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original, and all such counterparts together shall constitute one and the same
instrument.
10. Governing Law; Descriptive Headings. THIS THIRD AMENDMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
11. Succession; Assignment. This Third Amendment shall inure to the
benefit of and be binding upon the successors and assigns of the parties
hereto. The rights and obligations hereunder may be assigned only in
accordance with the assignment provisions of the Credit Agreement.
12. References to Credit Agreement. Except as expressly provided
in this Third Amendment and the amendments to the other Loan Documents
contemplated hereby, the terms, provisions, conditions and agreements of the
Credit Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed in all respects. On and after the
effectiveness of the amendments to the Credit Agreement and the other Loan
Documents contemplated hereby, each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of like import, and each
reference to the Credit Agreement in any Note or other Loan Document, or other
agreement, document or instrument executed and delivered pursuant to the Credit
Agreement, shall be deemed a reference to the Credit Agreement as so amended.
13. No Other Modifications; Same Indebtedness. The modifications
effected by this Third Amendment shall not be deemed to provide for or effect a
repayment to and re-advance of any of the Advances by any Bank now outstanding,
it being the intention of the parties that the Advances outstanding under the
Credit Agreement, as amended by this Third Amendment, be and are the same
Advances outstanding under the Credit Agreement immediately prior to the
effectiveness hereof.
IN WITNESS WHEREOF, each of the parties hereto has caused this Third
Amendment to be executed and delivered by its duly authorized officers and
representatives as of the date first above written.
THE BORROWERS:
HECLA MINING COMPANY
By: /s/ Joseph T. Heatherly
Name: J.T. Heatherly
Title: Vice President - Controller
ATTEST:
By: /s/ Michael B. White
Name: Michael B. White
Title: Secretary
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COLORADO AGGREGATE COMPANY OF
NEW MEXICO INC.
By: /s/ J.T. Heatherly
Name: Joseph T. Heatherly
Title: Vice President
ATTEST:
By: /s/ Michael B. White
Name: Michael B. White
Title: Secretary
KENTUCKY-TENNESSEE CLAY COMPANY
By: /s/ J.T. Heatherly
Name: Joseph T. Heatherly
Title: Vice President - Controller
ATTEST:
By: /s/ Nathaniel K. Adams
Name: Nathaniel K. Adams
Title: Assistant Secretary
K-T FELDSPAR CORPORATION
By: /s/ J.T. Heatherly
Name: Joseph T. Heatherly
Title: Vice President - Controller
ATTEST:
By: /s/ Michael B. White
Name: Michael B. White
Title: Secretary
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THE AGENT:
MASE WESTPAC LIMITED, NEW YORK
BRANCH, as Agent
By:--------------------------------
Name:------------------------------
Title:-----------------------------
By:--------------------------------
Name:------------------------------
Title:-----------------------------
THE BANKS:
- ---------
MASE WESTPAC LIMITED, NEW YORK Amount: $7,500,000
BRANCH, as a Bank Percentage: 25%
By:--------------------------------
Name:------------------------------
Title:-----------------------------
By:--------------------------------
Name:------------------------------
Title:-----------------------------
NATIONSBANK OF TEXAS, N.A. Amount: $7,500,000
Percentage: 25%
By:--------------------------------
Name:------------------------------
Title:-----------------------------
SEATTLE-FIRST NATIONAL BANK Amount: $6,000,000
Percentage: 20%
By:--------------------------------
Name:------------------------------
Title:-----------------------------
THE BANK OF NOVA SCOTIA Amount: $6,000,000
Percentage: 20%
Address for notices:
By:--------------------------------
Name:------------------------------ 101 California St., 48th Floor
Title:----------------------------- San Francisco, CA 94111
Attention:
Facsimile: 415-397-0791
Telephone: 415-986-1100
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BANK OF AMERICA IDAHO, N.A. Amount: $1,000,000
Percentage: 3-1/3%
By:--------------------------------
Name:------------------------------
Title:-----------------------------
WEST ONE BANK, IDAHO Amount: $2,000,000
Percentage: 6-2/3%
By:--------------------------------
Name:------------------------------
Title:-----------------------------
ACKNOWLEDGED AND AGREED:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:--------------------------------
Name:------------------------------
Title:-----------------------------
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