Exhibit 10.5
FOURTH AMENDMENT
TO
AMENDED AND RESTATED CREDIT
AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT (this “ Fourth Amendment
”), dated as of February 3, 2009, is by and among HECLA
MINING COMPANY, a Delaware corporation (the “ Borrower
”) and each of the banks and other financial institutions
identified as Lenders on the signature pages hereto (the “
Lenders ”).
W I T N E S S E T
H:
WHEREAS, pursuant to the Amended and
Restated Credit Agreement, dated as of April 16, 2008 (as
amended, supplemented or otherwise modified prior to the date
hereof, the “ Existing Credit Agreement ” and,
as amended by this Fourth Amendment and as the same may be further
amended, supplemented or otherwise modified from time to time, the
“ Credit Agreement ”), among the Borrower, the
Lenders party thereto, and The Bank of Nova Scotia, as
administrative agent for the Lenders (in such capacity, the “
Administrative Agent ”), the Lenders have made
commitments to extend certain credit facilities to the Borrower;
and
WHEREAS, the Borrower has requested
that the Lenders agree to amend certain provisions of the Existing
Credit Agreement as more specifically set forth herein, in each
case upon the terms and conditions contained in this Fourth
Amendment;
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and in consideration of the agreements herein
contained, the parties hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1 Certain
Definitions . Unless otherwise defined herein or the context
otherwise requires, the following terms used in this Fourth
Amendment, including its preamble and recitals, have the following
meanings:
“ Administrative Agent
” is defined in the recitals .
“ Borrower ” is
defined in the preamble .
“ Credit Agreement
” is defined in the recitals .
“ Existing Credit
Agreement ” is defined in the recitals
.
“ Lenders ” is
defined in the preamble .
“ Fourth Amendment
Effective Date ” is defined in Subpart 4.1
.
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Credit Agreement
SUBPART 1.2 Other Definitions
. Unless otherwise defined herein or the context otherwise
requires, terms used in this Third Amendment, including its
preamble and recitals, have the meanings provided in the Credit
Agreement.
PART II
AMENDMENTS TO EXISTING CREDIT
AGREEMENT
Effective on (and subject to the
occurrence of) the Fourth Amendment Effective Date, the Existing
Credit Agreement is hereby amended in accordance with this Part
II . Except as so amended, the Existing Credit Agreement and
the other Loan Documents shall continue in full force and
effect.
SUBPART 2.1 Amendment to
Section 1.1 . Section 1.1 of the Existing Credit
Agreement is hereby amended as follows:
(a) by inserting the following
defined terms in the appropriate alphabetical sequence:
“ 2009 Budget ”
means the Borrower’s 2009 Budget & Long Range Plan,
dated January 26, 2009, as delivered to the Administrative
Agent and the Lenders on January 30, 2009.
“ Accumulated Asset Sale
Liquidity Amount ” means, as of any date, an amount equal
to 50% of the Retained Net Disposition Proceeds received in respect
of any Dispositions occurring from date hereof to such
date.
“ Convertible Preferred
Stock ” means the Borrower’s 12% Convertible
Preferred Stock with the terms set forth in the form of certificate
of designations attached as Exhibit A to the Fourth
Amendment.
“ Exploration Costs
” means, for any period, the aggregate amount of any
expenditure of the Borrower or any Subsidiaries in respect of
exploration, evaluation and possible development and mining of
mineral resources (including, without limitation,
(i) expenditures relating to activities carried out
(a) in search of previously unidentified mineral deposits,
(b) at undeveloped concessions, or (c) at operating mines
already containing proven and probable reserves, where a
determination remains pending whether new target deposits outside
of the existing reserve areas can be economically developed), and
(ii) all expenses classified (or required to be classified,
pursuant to the Borrower’s accounting policies) as
“Other operating expenses—Exploration” on the
Borrower’s consolidated statements of operations and
comprehensive income (loss).
“ Fourth Amendment
” means the Fourth Amendment to Credit Agreement, dated as of
February 3, 2009, among the Borrower, the Administrative Agent
and the Lenders party thereto.
“ Fourth Amendment
Effective Date ” has the meaning set forth in the Fourth
Amendment.
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Credit Agreement
“ September Additional
Amount ” means 25% of the amount by which the Net
Equity/Subordinated Debt Proceeds referred to in Subpart 4.8 of the
Fourth Amendment exceed $50,000,000.00; provided that, in no
event shall the September Additional Amount exceed
$2,500,000.00.
“ Series 2 Warrants
” means the Borrower’s Series 2 Common Stock Purchase
Warrants.
(b) by amending and restating the
following defined terms in their entirety to read as
follows:
“ Excess Cash Flow
” means, for any period, the excess (if any), of
(x) EBITDA for such
period;
minus
(y) the sum (for such period) of
(A) Interest Expense actually paid in cash by the Borrower and
Subsidiaries, plus (B) principal repayments, to the
extent actually made, of Loans pursuant to clauses (a)
or (b) of Section 3.1.1 or upon the
Stated Maturity Date of such Loans ( excluding ,
however , repayments made from a refinancing of any portion
of such Indebtedness, or pursuant to any other clause of
Section 3.1.1 (including on the Stated Maturity Date
thereof)) plus (C) all income Taxes actually paid in
cash by the Borrower and Subsidiaries plus (D) Capital
Expenditures made in cash ( excluding , however ,
Capital Expenditures financed with the proceeds of Indebtedness,
equity issuances, casualty proceeds or other proceeds which are not
included in EBITDA) plus (E) reclamation expenses
actually paid in cash by the Borrower and its Subsidiaries (
excluding , however , reclamation expenses financed
with the proceeds of insurance).
“ Required Lenders
” means, at any time, Lenders (a) holding more than 66
2/3% of the Total Exposure Amount and (b) comprising more than
50% of the total number of Lenders.
“ Retained Net Disposition
Proceeds ” means, (a) the Net Disposition Proceeds
from the sale of the Velardena Mill, and (b) with respect to
any other Disposition by the Borrower or any Subsidiary pursuant to
clause (e) of Section 7.2.10 , the amount of Net
Disposition Proceeds in respect of such Disposition, net of any
such Net Disposition Proceeds required to be used to repay the
Loans pursuant to Section 3.1.1(d).
“ Retained Proceeds
” means, with respect to any date of determination, an amount
(which may be a negative amount) equal (without duplication)
to:
(a) the aggregate cumulative sum of
(a) 65% of Excess Cash Flow for the 2008 Fiscal Year and
(b) with respect to all periods after the 2008 Fiscal Year:
(i) 25% of the Excess Cash Flow for the period commencing with
the first day of the
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Credit Agreement
applicable Fiscal Year to and
including the last day of the second Fiscal Quarter of such Fiscal
Year and (c) 25% of the Excess Cash Flow for the period
commencing with the first day of the third Fiscal Quarter of the
applicable Fiscal Year to and including the last day of such Fiscal
Year; provided that all applicable repayments under
clause (e) of Section 3.1.1 for such
Fiscal Year or the applicable two-Fiscal Quarter period, as
applicable, have been made;
plus
(b) with respect to any Investment
permitted under clause (d) (other than with respect to
the Greens Creek Mine, the Lucky Friday Mine, the Isidora Mine or
the La Comorra Mine), (e)(i) , (f)(i) , (h) ,
(i) , (j) and (l) of
Section 7.2.5 , 25% of the aggregate amount of Net
Equity/Subordinated Debt Proceeds received in connection with the
issuance or sale of Capital Securities (excluding, for the
avoidance of doubt, any Net Equity/Subordinated Debt Proceeds
received in connection with exercise of the Series 2 Warrants) for
the purpose of financing such Investment; provided that all
applicable repayments under clause (c) of
Section 3.1.1 for such Fiscal Year have been
made;
minus
(c) the aggregate of any amounts set
forth in clauses (a) and (b) above
previously applied to the making of any Investment permitted under
clause (d) (other than with respect to the Greens
Creek Mine, the Lucky Friday Mine, the Isidora Mine or the La
Comorra Mine), (e)(i) , (f)(i) , (h) ,
(i) , (j) and (l) of
Section 7.2.5 .
“ Velardena Mill
” means the gold an silver recovery cyanide plant located
near the town of Velardena in Durango State, Mexico which is
currently held by Minera Hecla SA de CV, including (i) rights
such as water and land use rights, (ii) permits such as
operating and environmental permits, and (iii) infrastructure
and equipment.
SUBPART 2.2 Amendment to
Section 3.1.1 .
(a) Clause (b) of
Section 3.1.1 of the Existing Credit Agreement is hereby
amended in its entirety to read as follows:
(b) (i) On the Quarterly Payment
Date set forth below, the Borrower shall make repayments of the
outstanding principal amount of the Term I Loans in the amount set
forth below opposite such period as follows:
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Quarterly Repayment
Date
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Amount of Required
Principal Repayment
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March 31, 2010
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$
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15,000,000
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June 30, 2010
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$
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15,000,000
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September 30, 2010
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$
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15,000,000
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December 31, 2010
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$
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15,000,000
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March 31, 2011
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$
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61,666,667
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Credit Agreement
(b) Clause (c) of
Section 3.1.1 of the Existing Credit Agreement is hereby
amended and restated as follows:
(c) Concurrently with the receipt by
the Borrower of any Net Equity/Subordinated Debt Proceeds in
respect of the exercise of Series 2 Warrants, the Borrower shall
make a mandatory prepayment of the Term I Loans in an amount equal
to 100% of such Net Equity/Subordinated Debt Proceeds. Concurrently
with the receipt by the Borrower of any other Net
Equity/Subordinated Debt Proceeds (other than the proceeds
described in Subpart 4.8 of the Fourth Amendment), the Borrower
shall make a mandatory prepayment of the Term I Loans in an amount
equal to 75% of such Net Equity/Subordinated Debt
Proceeds.
(c) Clause (d) of
Section 3.1.1 of the Existing Credit Agreement is hereby
amended by adding the following text at the end thereof:
Notwithstanding the foregoing, upon
written notice by the Borrower to the Administrative Agent not more
than five Business Days following receipt of Net Disposition
Proceeds from the sale of the Velardena Mill, such proceeds may be
retained by the Borrower and its Subsidiaries (and be excluded from
the prepayment requirements of this clause), if (y) the
Borrower informs the Administrative Agent in such notice of its
good faith intention to apply such Net Disposition Proceeds to
funding Capital Expenditures in accordance with the 2009 Budget and
(z) within 365 days following the receipt of such Net
Disposition Proceeds, such proceeds are actually applied to Capital
Expenditures in accordance with the 2009 Budget.
(d) Clause (e) of
Section 3.1.1 of the Existing Credit Agreement is hereby
amended and restated as follows:
(e) Within 100 days after the close
of the second Fiscal Quarter of each Fiscal Year, the Borrower
shall make a mandatory prepayment of the Term I Loans in an amount
equal to 75% of Excess Cash Flow (if any) for the period from the
first day of such Fiscal Year to and including the last day of the
second Fiscal Quarter of such Fiscal Year, and within 100 days
after the last day of each Fiscal Year, the Borrower shall make a
mandatory prepayment of the Term I Loans in an amount equal to 75%
of Excess Cash Flow (if any) for the period from the first day of
the third Fiscal Quarter of such Fiscal Year to and including the
last day of such Fiscal Year.
(e) Clause (f) of
Section 3.1.1 shall be amended by adding the following text in
place of the period at the end thereof:
; provided that , the
Borrower shall not be required to make any mandatory prepayment
with such released cash or cash equivalents to the extent that such
released cash or cash equivalents represent accrued interest on the
cash or cash equivalents that are the subject of the Liens
described in clauses (c) and (g)(ii) of
Section 7.2.3 .
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Credit Agreement
SUBPART 2.3 Amendment to
Section 3.3 . Section 3.3 of the Existing Credit
Agreement is hereby amended by adding the following clause at the
end thereof:
SECTION 3.3.3 Additional Fee
. Upon the Fourth Amendment Effective Date, and on each July 1
and January 1 occurring thereafter, the Borrower shall issue
to the Lenders, or, with respect to any Lender, to an institution
designated by such Lender that at the time of issuance is an
accredited investor under Regulation D under the Securities Act of
1933 and that agrees to hold the shares for its own account and not
with a view towards distribution (on a pro rata basis according to
each such Lender’s Term I Percentage) an amount of shares of
a new series of Convertible Preferred Stock such that the aggregate
liquidation preference of such shares equals the product of 3.75%
and the aggregate principal amount of Term I Loans then
outstanding. Any fractional shares resulting from the foregoing
calculation shall be rounded up to the nearest whole
share.
SUBPART 2.4 Amendments to
Section 7.1 .
(a) Clause (u) of
Section 7.1.1 of the Existing Credit Agreement is hereby
amended and restated as follows:
(u) as soon as possible, on or
before the Wednesday of each week following the Fourth Amendment
Effective Date, an actual-to-forecast variance analysis for the
preceding week and on a cumulative basis based upon a weekly
rolling cash flow forecast for the thirteen week period which shall
detail all sources and uses of cash on a weekly basis. Such
thirteen week rolling cash forecast shall be updated and provided
to the Administrative Agent on the first Monday of each month,
together with an explanation of any changes between the updated
forecast and the immediately preceding forecast, and shall include
a summary of the general assumptions in such forecast (including
relating to metals pricing and production volumes), in each case
prepared and certified by the chief financial or accounting
Authorized Officer of the Borrower, in form and detail satisfactory
to the Administrative Agent;
(b) Clause (x) of
Section 7.1.1 of the Existing Credit Agreement is hereby
amended and restated as follows:
(x) beginning on the Fourth
Amendment Effective Date, on a monthly basis (or more frequently as
requested by the Administrative Agent), the Borrower shall, and
shall cause the CRO, to host and participate in status and update
calls with the Lenders to discuss, among other things, the current
financial condition of the Borrower and its Subsidiaries and other
topics reasonably requested by the Administrative Agent;
and
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Credit Agreement
(c) Section 7.1.1 of the
Existing Credit Agreement is hereby amended by inserting the
following clause at the end thereof:
(z) (i) between July 1,
2009 and July 15, 2009 an updated budget and long range plan
for the 2009 Fiscal Year, in form substantially similar to the 2009
Budget, and (ii) within 30 days after the start of each Fiscal
Year thereafter, an updated budget and long range plan for such
Fiscal Year, in form substantially similar to the 2009
Budget.
(d) Section 7.1 of the Existing
Credit Agreement is hereby amended by inserting the following at
the end thereof:
SECTION 7.1.17 Sale Price of
Gold, Silver, Lead and Zinc . The Borrower and its Subsidiaries
shall sell all gold, silver, lead and zinc on fair and reasonable
terms, at prices and other terms no less favorable to the Borrower
or such Subsidiary than it could obtain in an arm’s-length
transaction with Person that is not an Affiliate.
SECTION 7.1.18 Convertible
Preferred Stock . The Borrower shall at all times reserve a
number of shares of Convertible Preferred Stock equal to or greater
than the number of shares of Convertible Preferred Stock that it
could be required to issue to the Lenders through the Stated
Maturity Date pursuant to Section 3.3.3 hereof.
SUBPART 2.5 Amendments to
Section 7.2 .
(a) Section 7.2.4 of the
Existing Credit Agreement is hereby amended and restated as
follows:
Section 7.2.4 Financial
Condition and Operations .
The Borrower will not permit any of
the events set forth below to occur:
(a) EBITDA computed for the period
beginning January 1, 2009 through the end of the Fiscal
Quarter ending on the date set forth below to be less than the
corresponding amount of EBITDA set forth below:
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EBITDA
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June 30, 2009
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$
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6,709,000
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September 30, 2009
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$
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8,048,000
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December 31, 2009
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$
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10,909,000
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(b) EBITDA computed for the four
Fiscal Quarter period consisting of the Fiscal Quarter ending on
the date set forth below and each of the three immediately
preceding Fiscal Quarters to be less than the corresponding amount
of EBITDA set forth below:
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EBITDA
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March 31, 2010
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$
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7,789,000
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June 30, 2010
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$
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6,633,000
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September 30, 2010
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$
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5,919,000
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December 31, 2010
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$
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5,313,000
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March 31, 2011
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$
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5,236,000
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Credit Agreement
(c) Capital Expenditures during the
period beginning January 1, 2009 through the end of the Fiscal
Quarter ending on the date set forth below to exceed the
correspon