UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest
event reported) April 17, 2015
REVETT MINING COMPANY, INC.
(Exact name of small business issuer in its charter)
Delaware |
46-4577805 |
(State or other jurisdiction of incorporation) |
(IRS Employer Identification No.) |
11115 East Montgomery, Suite G
Spokane Valley, Washington
99206
(Address of principal executive offices)
Registrants telephone number: (509) 921-2294
Check the appropriate box below if the Form 8-K filing is
intended to simultaneously satisfy the filing obligations of the registrant
under any of the following provisions (see General instructions A.2. below):
[ ] Written communications pursuant to Rule 425
under the Securities Act (17 CFR 230.425)
[X] Soliciting material pursuant to Rule 14 a-12 under the
Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to
Rule 14d-2(b) under the Exchange act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to
Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement
On April 17, 2015, Revett Mining Company, Inc. (the Revett)
and two of its subsidiaries, Revett Silver Company and Revett Holdings, Inc.,
entered into a Term Loan and Security Agreement (the Agreement) with Hecla
Mining Company (Hecla).
The Agreement is attached to this current report as Exhibit 2.1
and is incorporated herein by reference to provide you with information
concerning its terms. It is not intended to provide any other factual
information about Revett or the transaction described in the Agreement. Such
information can be found elsewhere in other public filings the Revett has made
with the Securities and Exchange Commission, which are available without charge
at www.sec.gov.
The information disclosed under Item 9.01 is incorporated
herein by reference.
As previously
announced, Hecla and Revett have entered into a merger agreement pursuant to
which Hecla will acquire Revett. Hecla will file with the SEC a registration
statement on Form S-4 (or amendment thereto) that will include the Proxy
Statement of Revett that also constitutes a prospectus of Hecla. Hecla and
Revett plan to mail the Proxy Statement/Prospectus to Revett's shareholders in
connection with the transaction. INVESTORS AND SHAREHOLDERS ARE URGED TO READ
THE PROXY STATEMENT/PROSPECTUS AND OTHER RELEVANT DOCUMENTS FILED OR TO BE FILED
WITH THE SEC CAREFULLY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN
IMPORTANT INFORMATION ABOUT HECLA, REVETT, THE TRANSACTION AND RELATED MATTERS.
Investors and shareholders will be able to obtain free copies of the Proxy
Statement/Prospectus and other documents filed with the SEC by Hecla and Revett
through the website maintained by the SEC at www.sec.gov. In addition, investors
and shareholders will be able to obtain free copies of the Proxy
Statement/Prospectus and other documents filed by Hecla with the SEC by
contacting Hecla's Investor Relations department at Hecla Mining Company;
Investor Relations; 1-800-HECLA91 (1-800-432-5291); hmc-info@hecla-mining.com.,
and will be able to obtain free copies of the Proxy Statement/Prospectus and
other documents filed by Revett by contacting Revett Investor Relations at
509-921-2294 or by calling 1 866 921 2294.
Hecla and Revett and their respective
directors and executive officers may be deemed to be participants in the
solicitation of proxies from the shareholders of Revett in respect of the
transaction described the Proxy Statement/Prospectus. Information regarding the
persons who may, under the rules of the SEC, be deemed participants in the
solicitation of the shareholders of Revett in connection with the proposed
transaction, including a description of their direct or indirect interests, by
security holdings or otherwise, will be set forth in the Proxy
Statement/Prospectus when it is filed with the SEC. Information regarding
Hecla's directors and executive officers is contained in Hecla's Annual Report
on Form 10-K for the year ended December 31, 2014 and its Proxy Statement on
Schedule 14A, dated April 8, 2014, which are filed with the SEC. Information
regarding Revett's directors and executive officers is contained in Revett's
Annual Report on Form 10-K for the year ended December 31, 2014 and its Proxy
Statement on Schedule 14A, dated May 6, 2014, which are filed with the SEC.
Item 9.01. Financial Statements and Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
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REVETT MINING COMPANY, INC. |
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Date: April 17, 2015 |
By: |
/s/
John Shanahan |
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John Shanahan |
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President and Chief Executive Officer |
Exhibit 2.1 to Current Report on Form 8-K dated April 17, 2015
(Term Loan and Security Agreement, with exhibits)
TERM LOAN AND SECURITY AGREEMENT
This Term Loan and Security Agreement (Agreement) is
made as of April 17, 2015 by and among REVETT MINING COMPANY INC., a Delaware
corporation (the Borrower), REVETT SILVER COMPANY, a Montana
corporation (RSC), REVETT HOLDINGS, INC., a Montana corporation
(Revett Holdings, and together with RSC, the Guarantors and the
Guarantors together with the Borrower, the Loan Parties) and HECLA
MINING COMPANY, a Delaware corporation (the Lender). In consideration
of the mutual covenants contained in this Agreement and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
ARTICLE I
LOAN; SECURITY DOCUMENTS
On the terms and subject to the conditions of this Agreement,
the Lender agrees to make to the Borrower, on or after the date that all
conditions precedent set forth in Article III have been satisfied (the
Closing Date), one or more term loans (each a Loan and
collectively, the Loans) in an aggregate principal amount not to exceed
One Million Five Hundred Thousand and No/100 dollar ($1,500,000) (the
Maximum Amount). No amounts paid or prepaid with respect to the Loans
may be reborrowed.
The Borrowers unconditional and absolute obligation to repay
to the Lender the principal of the Loans and interest thereon shall be evidenced
by a promissory note (as the same may be amended, supplemented or otherwise
modified from time to time in accordance with the terms hereof, and together
with any renewals thereof or substitutions therefor, the Note), in the
form of Exhibit A hereto dated the Closing Date. The date and amount of
draw made, and each repayment and prepayment of principal thereon received, by
the Lender shall be recorded by the Lender in its records or, at its option, on
the schedule attached to the Note. The aggregate unpaid principal amount so
recorded shall be prima facie evidence of the principal amount owing and unpaid
on the Note to the Lender absent manifest error. The failure to so record any
such amount or any error in so recording any such amount, however, shall not
limit or otherwise affect the Borrowers obligations hereunder or under the Note
to repay the principal amount of the Loans together with all interest accruing
thereon.
The Borrower shall apply the proceeds of each Loan solely for
the Borrowers general corporate purposes so long as it does not cause a default
under the Merger Agreement. The Borrower hereby directs the Lender to transfer
the proceeds of the Loan on the Closing Date to a deposit account to be
identified by the Borrower (the Borrower Account).
All of the obligations of the Borrower under the Note and this
Agreement shall be guaranteed pursuant to the Guaranty by the Guarantors. All of
the obligations of the Guarantors under the Guaranty shall be secured by the
Collateral, which shall be a lien ranking senior and superior to all other
liens.
1.5 |
GRANT OF SECURITY INTEREST |
As collateral security for the payment and performance in full
of all the Obligations, each Loan Party hereby pledges and grants to the Lender,
a lien on and security interest in and to all of the right, title and interest
of such Loan Party in, to and under the following property, wherever located,
and whether now existing or hereafter arising or acquired from time to time
(collectively, the Collateral):
(a) all interests in the real estate owned by Revett Holdings
and listed on Schedule 1.5 attached hereto (the Revett Holdings
Property); and
(b) all equity interests of Revett Holdings.
Each Loan Party shall take all action that may be reasonably
necessary or desirable, or that Lender may reasonably request, so as at all
times to maintain the validity, perfection, enforceability and priority of
Lenders security interest in and lien on the Collateral or to enable Lender to
protect, exercise or enforce its rights hereunder and in the Collateral,
including, but not limited to, (i) promptly discharging all liens other than
Permitted Liens, (ii) subject to any express exclusion or limitations in this
Agreement, executing and delivering financing statements, control agreements,
instruments of pledge, notices and assignments, in each case in form and
substance satisfactory to Lender, relating to the creation, validity,
perfection, maintenance or continuation of Lenders security interest and lien
under the UCC or other applicable law, (iii) providing, within fourteen (14)
days of the Closing Date (or, at Lenders sole discretion, such longer period),
with respect to Loan Parties interests in the Revett Holdings Property,
mortgages or deeds of trust (including, without limitation, leasehold mortgages
and leasehold deeds of trust) and related landlord estoppels, accompanied by
title insurance, environmental indemnities, lien searches, environmental
reports, opinions of counsel, and other items request by Lender in its sole
discretion, with respect to the Revett Holdings Property (whether such interest
is a fee interest, leasehold interest, patented claim, unpatented claim or
otherwise), and (iii) otherwise providing such other documents and instruments
as Lender may request, in order that the full intent of this Agreement may be
carried into effect; provided, however, perfection of Lenders liens on assets
of the Loan Parties shall not be required where the Lender determines in its
sole discretion that the benefits of obtaining such perfection is outweighed by
the costs or burdens of providing the same. By its signature hereto, each Loan
Party hereby authorizes Lender to file against such Loan Party, one or more
financing, continuation or amendment statements pursuant to the applicable UCC
in form and substance satisfactory to Lender (which statements may have a
description of collateral which is the same, broader or more narrow than that
set forth herein). All charges, expenses and fees Lender may incur in doing any
of the foregoing, and any local taxes relating thereto, shall be paid by
Borrower to Lender immediately upon demand
Each Loan Party hereby irrevocably authorizes the Lender at any
time and from time to time to file in any relevant jurisdiction any financing
statements (including fixture filings) and amendments thereto that contain the
information required by Article 9 of the UCC of each applicable jurisdiction for
the filing of any financing statement or amendment relating to the Collateral,
including (i) whether the Loan Party is an organization, the type of
organization and any organizational identification number issued to such Loan
Party, (ii) any financing or continuation statements or other documents for the
purpose of perfecting, confirming, continuing, enforcing or protecting the
security interest granted by such Loan Party hereunder, without the signature of
such Loan Party where permitted by law, including the filing of a financing
statement describing the Collateral as all assets now owned or hereafter
acquired by the Debtor or in which the Debtor otherwise has rights and (iii) in
the case of a financing statement filed as a fixture filing or covering
Collateral constituting minerals or the like to be extracted or timber to be
cut, a sufficient description of the real property to which such Collateral
relates. Each Loan Party agrees to provide all information described in the
immediately preceding sentence to the Lender promptly upon request by the
Lender.
ARTICLE II
REPAYMENT; PREPAYMENTS; INTEREST
2.1 |
REPAYMENT OF THE LOANS |
The Borrower shall repay the aggregate outstanding principal
amount of the Loans, together with all accrued but unpaid interest thereon, in
full on the earlier of July 1, 2015, or the date upon which the Loans become or
are declared due and payable pursuant to Article VII of this Agreement.
The Borrower shall have the right to prepay the principal
amount of the Loans, in whole or in part, at any time without penalty or
premium. Any prepayment of principal shall be accompanied by a payment of all
interest accrued and unpaid on the portion of the principal amount being
prepaid.
(a) The Loans shall bear interest on the outstanding principal
amount thereof at a per annum rate equal to LIBOR plus 5%. All accrued interest
on the Loans shall be payable in arrears at maturity (or if such day is not a
Business Day, on the next succeeding Business Day); provided that in the event
of any repayment or prepayment of the Loans, accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such repayment or
prepayment. All computations of interest shall be made on the basis of a year of
360 days, and actual days elapsed, which, the Borrower acknowledges will result
in a higher actual rate of interest that the rates stated above.
(b) Notwithstanding the rate of interest specified above, after
an Event of Default and during the continuance thereof (regardless of whether
the Loans have been accelerated), the Borrower agrees to pay interest (after as
well as before judgment to the extent permitted by applicable law) on all unpaid
principal, interest or other amounts owing under the Transaction Documents, at a
rate equal to the rate otherwise payable hereunder plus two percent (2%) per
annum.
Notwithstanding anything herein to the contrary, if at any time
the interest rate applicable to the Loans, together with all fees, charges and
other amounts which are treated as interest on the Loans under applicable law
shall exceed the maximum lawful rate (the Maximum Rate) which may be
contracted for, charged, taken, received or reserved by the Lender in accordance
with applicable law, the rate of interest payable in respect of such Loans
hereunder, together with all charges payable in respect thereof, shall be
limited to the Maximum Rate.
2.5 |
TAXES; WITHHOLDING, ETC. |
(a) All sums payable by or on account of any obligation of the
Borrower hereunder or under the other Transaction Documents, shall (except to
the extent required by law) be paid free and clear of, and without any deduction
or withholding on account of, any Tax.
(b) If any Loan Party is required by law to make any deduction
or withholding on account of any tax from any sum paid or payable to the Lender
under any of the Transaction Documents: (i) the Borrower shall notify the Lender
of any such requirement or any change in any such requirement as soon as the
Borrower becomes aware of it; (ii) the Borrower shall pay any such tax before
the date on which penalties attach thereto; (iii) the sum payable by the
Borrower in respect of which the relevant deduction or withholding is required
shall be increased to the extent necessary to ensure that, after the making of
that deduction or withholding (including any deduction or withholding of taxes
applicable to additional sums payable under this Section 2.5), the Lender
receives on the due date a net sum equal to what it would have received had no
such deduction or withholding been required or made; and (iv) within 30 days
after the due date of payment of any tax which it is required to deduct or
withhold, the Borrower shall deliver to the Lender evidence reasonably
satisfactory to the other affected parties of such deduction, withholding or
payment and of the remittance thereof to the relevant taxing or other authority.
(a) All payments by the Loan Parties of principal, interest,
fees and other Obligations shall be made in Dollars in same day funds, without
defense, setoff or counterclaim, free of any restriction or condition, and
delivered to the Lender not later than 12:00 noon (Pacific time) on the date
due; for purposes of computing interest and fees, funds received by the Lender
after that time on such due date shall be deemed to have been paid by the Loan
Parties on the next succeeding Business Day. All payments in respect of the
principal amount of any Loan shall include payment of accrued interest on the
principal amount being repaid or prepaid, and all such payments (and, in any
event, any payments in respect of any Loan on a date when interest is due and
payable with respect to such Loan) shall be applied to the payment of interest
then due and payable before application to principal.
ARTICLE III
CONDITIONS TO CLOSING AND SUBSEQUENT DRAWS
3.1 |
CONDITIONS FOR INITIAL
LOAN |
The obligation of the Lender to make the initial Loan is
subject to the fulfillment to the Lenders satisfaction on or prior to the
Closing Date of each of the following conditions, unless otherwise waived by the
Lender:
(a) All covenants, agreements and conditions contained in this
Agreement to be performed or complied with by the Borrower and the Guarantors on
or prior to the Closing Date shall have been performed or complied with by the
Borrower and the Guarantors.
(b) The Loan Parties shall have executed and delivered to the
Lender this Agreement, Borrower shall have issued to the Lender its Note, and
the Borrower and each of the Guarantors, as applicable, shall have executed and
delivered the following agreements and documents:
(i) the Guaranty;
(ii) the Pledge Agreement;
(iii) a secretarys certificate of the Borrower, (i) attaching
a certified copy of the Certificate of Incorporation and current Bylaws of the
Borrower and certifying the same as not having been amended and as being in
being in full force and effect, (ii) attaching and certifying resolutions by the
board of directors of the Borrower approving the execution, delivery and
performance of the Transaction Documents and the transactions contemplated
thereby, and (iii) certifying as to the incumbency, and attaching specimen
signatures of the officers or representatives of the Borrower signing the
Transaction Documents to which the Borrower is a party;
(iv) a secretarys certificate of each of the Guarantors (i)
attaching a certified copy of the Articles of Incorporation and current Bylaws
of such Guarantor and certifying the same as not having been amended and as
being in being in full force and effect, (ii) attaching and certifying
resolutions by the board of directors of such Guarantor approving the execution,
delivery and performance of the Transaction Documents and the transactions
contemplated thereby, and (iii) certifying as to the incumbency, and attaching
specimen signatures of the officers or representatives of such Guarantor signing
the Transaction Documents to which such Guarantor is a party;
(v) a Certificate of Good Standing from the state of formation
of the Borrower and each of the Guarantors;
(vi) UCC Financing Statement naming the Borrower as Debtor, the
Lender as Secured Party and describing the Pledged Collateral; and
(vii) UCC Financing Statement naming the Guarantors as Debtors,
the Lender as Secured Party and describing the Guarantor Collateral.
(c) The Borrower and the Guarantors shall have obtained all
necessary consents or waivers, if any, from all parties governmental and private
to any other material agreements to which the Borrower or either of the
Guarantors is a party or by which any of them is bound immediately prior to the
Closing Date in order that the transactions contemplated by the Transaction
Documents may be consummated.
(d) All corporate and other proceedings taken or required to be
taken by the Borrower and the Guarantors in connection with the transactions
contemplated by this Agreement and the other Transaction Documents to be
consummated prior to the Closing Date shall have been taken, and the Lender
shall have received such other documents, in form and substance reasonably
satisfactory to the Lender and its counsel, as to such other matters incident to
the transactions contemplated hereby as the Lender may reasonably request.
3.2 |
CONDITIONS FOR ALL LOANS |
The obligation of the Lender to make any Loan, including the
initial Loan on or after the Closing Date, is subject to the fulfillment to
Lenders satisfaction of each of the following conditions, unless otherwise
waived by Lender:
(a) The Lender shall have received a notice from the Borrower
requesting that a Loan be made, which notice shall specify (i) the amount of the
Loan; (ii) the date the Borrower would like Lender to make such Loan (which date
shall be a Business Day) (the Credit Date) and (iii) a description of the
proposed use of the proceeds of such Loan;
(b) After making the Loans requested, the aggregated principal
amount of Loans made by Lender to Borrower on and after the Closing Date shall
not exceed the Maximum Amount;
(c) As of such Credit Date, the representations and warranties
of the Loan Parties contained herein and in the other Transaction Documents
shall be true and correct on and as of that Credit Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true and correct on and as of
such earlier date;
(d) As of such Credit Date, no event shall have occurred and be
continuing or would result from the making of the requested Loan that would
constitute a Default or an Event of Default or a default under the Merger
Agreement;
(e) None of the Borrower, the Guarantors or the Lender shall be
subject to any order, decree or injunction of a court or administrative or
governmental body or agency of competent jurisdiction directing that the
transactions provided for in the Transaction Documents or Merger Agreement or
any material aspect thereof not be consummated as contemplated by the
Transaction Documents or Merger Agreement; and
(f) There shall not be any action, suit, proceeding, complaint,
charge, hearing, inquiry or investigation before or by any court or
administrative or governmental body or agency pending or, to the Borrowers best
knowledge, threatened, wherein an unfavorable order, decree or injunction would
prevent the performance of any of the Transaction Documents or Merger Agreement
or the consummation of any material aspect of the transactions or events
contemplated thereby, declare unlawful any aspect of the transactions or events
contemplated by the Transaction Documents or Merger Agreement, cause any
material aspect of the transactions contemplated by the Transaction Documents or
Merger Agreement to be rescinded or have a Material Adverse Effect.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
THE BORROWER AND
GUARANTORS
As a material inducement to the Lender to enter into and
perform its obligations under this Agreement, except as disclosed on the Company
Disclosure Schedule (as such term is defined in the Merger Agreement), the
Borrower and each of the Guarantors hereby represent and warrant to the Lender
as follows:
4.1 |
ORGANIZATION AND EXISTENCE |
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of Delaware and is qualified to do
business in such other jurisdictions as the nature or conduct of its operations
or the ownership of its properties require such qualification. The Borrower does
not own or lease any property or engage in any activity in any jurisdiction that
might require qualification to do business as a foreign corporation in such
jurisdiction and where the failure to so qualify could reasonably be expected to
have a Material Adverse Effect or subject the Borrower to a material liability.
The Borrower has furnished the Lender with true, correct and complete copies of
its Certificate of Incorporation, bylaws and all amendments thereto, as of the
date hereof.
(b) Each of the Guarantors is a corporation duly organized,
validly existing and in good standing under the laws of Montana and is qualified
to do business in such other jurisdictions as the nature or conduct of its
operations or the ownership of its properties require such qualification.
Neither of the Guarantors owns or leases any property or engages in any activity
in any jurisdiction that might require such Guarantor to qualify to do business
as a foreign corporation in such jurisdiction and where the failure to so
qualify could reasonably be expected to have a Material Adverse Effect or
subject such Guarantor to a material liability. Each Guarantor has furnished the
Lender with true, correct and complete copies of its Articles of Incorporation,
bylaws and all amendments thereto, as of the date hereof.
(a) The Borrower has all requisite corporate power and
authority (i) to execute and deliver, and to perform and observe its obligations
under, the Transaction Documents to which it is a party, and (ii) to consummate
the transactions contemplated hereby and thereby.
(b) All corporate action on the part of the Borrower necessary
for the authorization, execution, delivery and performance by the Borrower of
the Transaction Documents and the transactions contemplated therein, and for the
authorization, issuance and delivery of the Note, has been taken.
(c) Each of the Guarantors has all requisite corporate power
and authority (i) to execute and deliver, and to perform and observe its
obligations under, the Transaction Documents to which such Guarantor is a party,
and (ii) to consummate the transactions contemplated hereby and thereby.
(d) All corporate action on the part of each of the Guarantors
necessary for the authorization, execution, delivery and performance by each
such Guarantor of the Transaction Documents to which it is a party and the
transactions contemplated therein has been taken.
4.3 |
BINDING OBLIGATIONS; NO MATERIAL ADVERSE
CONTRACTS |
The Transaction Documents constitute valid and binding
obligations of the Borrower and each of the Guarantors enforceable in accordance
with their respective terms. The execution, delivery and performance by the
Borrower and each of the Guarantors of the Transaction Documents and compliance
therewith will not result in any violation of and will not conflict with, or
result in a breach of any of the terms of or constitute a default, or accelerate
or permit the acceleration of any rights or obligations, under, any provision of
state, local, federal or foreign law to which the Borrower or either of the
Guarantors is subject, the Certificate of Incorporation, as amended, or the
bylaws, as amended, of the Borrower, or the Articles of Incorporation, as
amended, or the bylaws, as amended, of either of the Guarantors, or any
mortgage, indenture, agreement, instrument, judgment, decree, order, rule or
regulation or other restriction to which the Borrower or either of the
Guarantors is a party or by which any of them is bound, or result in the
creation of any mortgage, pledge, lien, encumbrance or charge upon any of the
properties or assets of the Borrower or either of the Guarantors pursuant to any
such term.
4.4 |
COMPLIANCE WITH
INSTRUMENTS |
Neither the Borrower nor either of the Guarantors is in
violation of its organizational documents. Neither the Borrower nor either of
the Guarantors (a) is in default, and no event has occurred which, with the
giving of notice, or the lapse of time, or both, would constitute such a
default, in the due performance or observance of any term, covenant or condition
contained in any material agreement, including, without limitation, the Merger
Agreement or any license, indenture or other instrument to which it is a party
or by which it is bound or to which any of its property or assets is subject,
and (b) is in violation of any law, ordinance, governmental rule, regulation or
court decree to which it or its property may be subject.
There are no actions, suits or proceedings (including
governmental or administrative proceedings), investigations, third-party
subpoenas or inquiries by any regulatory agency, body or other governmental
authority, to which the Borrower or either of the Guarantors is a party or is
subject, or to which any of their authorizations, consents and approvals or
other properties or assets, is subject, which is pending, or, to the best
knowledge of the Borrower or either of the Guarantors, threatened or
contemplated against the Borrower or either of the Guarantors or any of such
property or assets, that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. Neither the Borrower nor either of
the Guarantors is subject to any actions, suits or proceedings (including
governmental or administrative proceedings), investigation, third-party
subpoenas or inquiries by any regulatory agency, body or other governmental
authority or any third Person regarding its accounting practices or policies.
Neither the Borrower nor either of the Guarantors is subject to
registration as an investment company under the 1940 Act.
4.7 |
PERMITS; GOVERNMENTAL AND OTHER
APPROVALS |
(a) The Borrower and each of the Guarantors possess all
necessary consents, approvals, authorizations, orders, registrations, stamps,
filings, qualifications, licenses, permits or other analogous acts by, of, from
or with all public, regulatory or governmental agencies, bodies and authorities
and all other third parties, to own, lease and operate its respective properties
and to carry on its business as now conducted and proposed to be conducted
except to the extent that the failure to obtain any such consents, approvals,
authorizations, orders, registrations, stamps, filings, qualifications, licenses
or permits would not have a Material Adverse Effect. No approval, consent,
authorization or other order of, and no designation, filing, registration,
qualification or recording with, any governmental authority or any other Person
is required in connection with the Borrowers or either of the Guarantors valid
execution, delivery and performance of this Agreement or the consummation of any
other transaction contemplated on the part of the Borrower or either Guarantor
hereby.
The Borrower and each of the Guarantors has (a) filed all
necessary income, franchise and other material tax returns, domestic and
foreign, (b) paid all taxes shown as due thereunder and (c) withheld and paid to
the appropriate tax authorities all amounts required to be withheld from wages,
salaries and other remuneration to employees. Neither the Borrower nor either of
the Guarantors has any knowledge, nor has it received notice, of any tax
deficiency which might be assessed against the Borrower or either of the
Guarantors which, if so assessed, could reasonably be expected to have a
Material Adverse Effect.
The information heretofore provided and to be provided in
connection with this Agreement, the Transaction Documents and each of the
agreements, documents, certificates and writings previously furnished to the
Lender or its representatives, do not and will not contain any untrue statement
of a material fact and do not and will not omit to state a material fact
necessary in order to make the statements and writings contained herein and
therein not false or misleading in the light of the circumstances under which
they were made.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower and each of the Guarantors hereby covenant and
agree, so long as the Note remains outstanding, as follows:
5.1 |
MAINTENANCE OF CORPORATE EXISTENCE;
TAXES |
(a) The Borrower shall maintain in full force and effect its
corporate existence, rights and franchises owned or possessed by it and
necessary to the conduct of its business, except where failure to maintain such
rights and franchises could not reasonably be expected to have a Material
Adverse Effect.
(b) The Borrower shall, and shall cause each of the Guarantors
to, (i) promptly pay and discharge, or cause to be paid and discharged when due
and payable, all lawful taxes, assessments and governmental charges or levies
imposed upon the income, profits, assets, property or business of the Borrower
and each of the Guarantors, (ii) withhold and promptly pay to the appropriate
tax authorities all amounts required to be withheld from wages, salaries and
other remuneration to employees, and (iii) promptly pay all claims or
indebtedness (including, without limitation, claims or demands of workmen,
materialmen, vendors, suppliers, mechanics, carriers, warehousemen and
landlords) which, if unpaid might become a lien upon the assets or property of
the Borrower or either of the Guarantors; provided, however, that
any such tax, lien, assessment, charge or levy need not be paid if (1) the
validity thereof shall be contested timely and in good faith by appropriate
proceedings, (2) the Borrower or either of the Guarantors shall have set aside
on its books adequate reserves with respect thereto, (3) the failure to pay
shall not be prejudicial in any material respect to the holders of the Notes and
(4) the failure to pay shall not cause a default under the Merger Agreement, and
provided further that the Borrower or either of the Guarantors
will pay or cause to be paid any such tax, lien, assessment, charge or levy
forthwith upon the commencement of proceedings to foreclose any lien which may
have attached as security therefore.
The Borrower and the Guarantors shall furnish with reasonable
promptness, copies of such information and financial data concerning the
Borrower and each of the Guarantors as the Lender may reasonably request.
5.3 |
NOTICE OF ADVERSE CHANGE |
The Borrower and each of the Guarantors shall promptly give
notice to the Lender (but in any event within two days) after becoming aware of
the existence of any condition or event which constitutes, or the occurrence of,
any of the following:
(a) any Event of Default or Default;
(b) the institution or threatened institution of any action,
suit or proceeding against the Borrower or either of the Guarantors before any
court, administrative agency or arbitrator, including, without limitation, any
action of a foreign government or instrumentality, which, if adversely decided,
could reasonably be expected to have a Material Adverse Effect;
(c) any information relating to the Borrower or either of the
Guarantors which could reasonably be expected to have a Material Adverse Effect;
or
(d) any failure by the Borrower or either of the Guarantors to
comply with the provisions of Section 5.4 below.
Any notice given under this Section 5.3 shall specify the
nature and period of existence of the condition, event, information, development
or circumstance, the anticipated effect thereof and what actions the Borrower
has taken and proposes to take with respect thereto.
5.4 |
COMPLIANCE WITH AGREEMENTS; COMPLIANCE WITH
LAWS |
The Borrower and each of the Guarantors shall comply with the
terms and conditions of all material agreements, commitments or instruments to
which they are a party or by which they may be bound, including, without
limitation, the Merger Agreement. The Borrower and each of the Guarantor shall
also enforce all of its rights under any material agreements, commitments or
instruments to which they are a party or by which they may be bound. The
Borrower and each of the Guarantors shall duly comply with any Legal
Requirements relating to the conduct of its businesses, properties or assets, in
each case except for any such noncompliance that could not reasonably be
expected to have a Material Adverse Effect.
5.5 |
ACCOUNTS AND RECORDS;
INSPECTIONS |
(a) The Borrower and each of the Guarantors shall keep true
records and books of account in which full, true and correct entries will be
made of all dealings or transactions in relation to the business and affairs of
the Borrower and each of the Guarantors.
(b) The Borrower shall permit the Lender or any of the Lenders
officers, employees or representatives during regular business hours of the
Borrower, upon reasonable notice and as often as the Lender may reasonably
request, to visit and inspect the offices and properties of the Borrower and to
make extracts or copies of the books, accounts and records of the Borrower, and
to discuss the affairs, finances and accounts of the Borrower with the
Borrowers directors and officers, its independent public accountants,
consultants and attorneys.
5.6 |
MAINTENANCE OF OFFICE |
The Borrower will maintain its principal office at the address
of the Borrower set forth in Section 10.4 of this Agreement where notices,
presentments and demands in respect of this Agreement and the Note may be made
upon the Borrower, until such time as the Borrower shall notify the Lender in
writing, at least 30 days prior thereto, of any change of location of such
office.
5.7 |
LIENS ON COLLATERAL; FURTHER
ASSURANCES |
Except as specifically permitted in this Agreement and the
other Transaction Documents, all liens and security interests granted by the
Loan Parties in favor of Lender shall be perfected first priority liens and
security interests. From time to time the Borrower and each of the Guarantors
shall execute and deliver to the Lender such other instruments, certificates,
agreements and documents and take such other action and do all other things as
may be reasonably requested by the Lender in order to implement or effectuate
the terms and provisions of this Agreement and the transactions contemplated
hereby.
With respect to all Collateral, the Borrower and each of the
Guarantors shall take all actions necessary to preserve and protect the Lenders
first priority security interest therein pursuant to the applicable Transaction
Documents or otherwise.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower hereby covenants and agrees, so long as the Note
remains outstanding, other than as permitted under the Merger Agreement, it will
not, directly or indirectly, without the prior written consent of the Lender:
6.1 |
STAY, EXTENSION AND USURY
LAWS |
At any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereinafter in force, which may affect the
covenants or the performance of the Note or this Agreement, the Borrower hereby
expressly waiving all benefit or advantage of any such law, or by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Lender but will suffer and permit the execution of every such power as
though no such law had been enacted.
Except as otherwise provided in this Agreement or any other
Transaction Document (such exceptions being Permitted Liens), create,
incur, assume or permit to exist any mortgage, pledge, lien, security interest
or encumbrance on any part of its properties or assets, including the Revett
Holdings Property, or on any interest it may have therein, now owned or
hereafter acquired, nor acquire or agree to acquire property or assets under any
conditional sale agreement or title retention contract.
Create, incur, assume, suffer, permit to exist, or guarantee,
directly or indirectly, any Indebtedness, excluding:
(a) the endorsement of instruments for the purpose of deposit
or collection in the ordinary course of business; or
(b) the Note; or
(c) indebtedness permitted under the Merger Agreement.
6.4 |
ARMS LENGTH TRANSACTIONS |
Enter into any transaction, contract or commitment or take any
action other than at arms length.
Make any advance or loan to, or guarantee any obligation of,
any Person.
6.6 |
INTERCOMPANY TRANSFERS; DISTRIBUTIONS; TRANSACTIONS
WITH AFFILIATES |
(a) Make any intercompany transfers of monies or other assets
in any single transaction or series of transactions, or any distributions to its
owners, except as otherwise permitted in the Merger Agreement.
(b) Engage in any transaction with any of the officers,
directors, employees or Affiliates of the Borrower except on terms no less
favorable to the Borrower as could be obtained at arms length.
Make any investments in, or purchase any stock, option,
warrant, or other security or evidence of Indebtedness of, any Person other than
investments permitted under the Merger Agreement.
Enter into or engage, directly or indirectly, in any business
other than the business currently conducted or proposed to be conducted as
disclosed to the Lender prior to the date hereof by the Borrower.
6.9 |
EMPLOYEE BENEFIT PLANS AND
COMPENSATION |
Enter into any agreement to provide for or otherwise establish
any written or unwritten employee benefit plan, program or other arrangement of
any kind, covering current or former employees of the Borrower.
6.10 |
FORMATION OF SUBSIDIARIES |
Organize or invest in any new corporation, partnership, joint
venture, limited liability company, trust or estate.
Sell, lease, transfer or otherwise dispose its assets and
property other than sales, leases, transfers and dispositions permitted under
the Merger Agreement.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events shall occur and be continuing,
an Event of Default shall be deemed to have occurred:
(a) if the Borrower shall default in the payment of any part of
the principal or interest of the Note, when the same shall become due and
payable, whether at maturity or at a date fixed for payment or prepayment or by
acceleration or otherwise;
(b) if the Borrower or either of the Guarantors shall default
in the performance of any of the covenants contained in Articles V or VI or
Section 1.5;
(c) except as provided in Section 7.1(a) or (b), if the
Borrower or either of the Guarantors shall default in the performance of any
other agreement contained in any Transaction Document or in any other agreement
executed in connection with this Agreement and such default shall not have been
remedied to the satisfaction of the Lender within 15 days;
(d) if any representation or warranty made by the Borrower, the
Guarantors or any of their officers in any Transaction Document or in or any
certificate delivered pursuant thereto shall prove to have been incorrect in any
material respect when made or deemed made;
(e) if (i) any default shall occur under any indenture,
mortgage, agreement, instrument or commitment evidencing, or under which there
is at the time outstanding, any Indebtedness of the Borrower or either of the
Guarantors, or which results in such Indebtedness becoming (or being declared by
its holders or, on its behalf, by an agent or trustee therefore to be) due and
payable prior to its due date; or (ii) except as provided under the Merger
Agreement a Change of Control in Borrower shall have occurred;
(f) if the Borrower or either of the Guarantors shall default
in the observance or performance of any term or provision of an agreement to
which it is a party or by which it is bound which default could reasonably be
expected to have a Material Adverse Effect and such default is not waived or
cured within the applicable grace period;
(g) if a final judgment which, either alone or together with
other outstanding final judgments against the Borrower or either of the
Guarantors, exceeds an aggregate of $100,000 shall be rendered against the
Borrower or either of the Guarantors and such judgment shall have continued
undischarged or unstayed for 45 days after entry thereof;
(h) if the Borrower or either of the Guarantors shall generally
not pay its debts as such debts become due or shall make an assignment for the
benefit of creditors generally, or shall admit in writing its inability to pay
its debts generally; or if any proceeding shall be instituted by or against the
Borrower or either of the Guarantors seeking to adjudicate it as bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its debts under any law
relating to bankruptcy, insolvency or the reorganization or relief of debtors,
or seeking entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part
of its property and, in the case of such proceeding instituted against it (but
not instituted by it) that is being diligently contested by it in good faith,
either such proceeding shall remain undismissed or unstayed for a period of 45
days or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or any
substantial part of its property) shall occur; or if any writ of attachment or
execution or any similar process shall be issued or levied against it or any
substantial part of its property which is either not released, stayed, bonded or
vacated within 45 days after its issue or levy or any of the actions sought or
relief sought in any proceeding pursuant to which such writ or similar process
shall be issued or initiated shall occur or be granted; or if the Borrower or
either of the Guarantors takes corporate action in furtherance of any of the
aforesaid purposes or conditions;
(i) if any provision of any Transaction Document or the Merger
Agreement shall for any reason cease to be valid and binding on, or enforceable
against, the Borrower or either of the Guarantors, or the Borrower or either of
the Guarantors shall so assert in writing;
(j) any Transaction Document (or any financing statement) which
purports:
(i) to create, perfect or evidence a lien on or security
interest in any Collateral in favor of the Lender (or their agents and
representatives), or to provide for the priority of any such lien or security
interest over the interest of any other party in the same collateral, shall
cease to create, or to preserve the enforceability, perfection or priority of,
such lien and security interest; or
(ii) to provide for the priority in right of payment of the
Borrowers obligations under the Transaction Documents to or in favor of the
Lender (or their agents or representatives) shall cease to preserve such
priority; or
(k) if the Borrower shall be in breach of any provision under
the Merger Agreement.
Upon the occurrence and during the continuance of an Event of
Default, the Lender may at any time at its option, by written notice or notices
to the Borrower (a) declare the Note to be due and payable, whereupon the same
shall forthwith mature and become due and payable, together with interest
accrued thereon, without presentment, demand, protest or notice, all of which
are hereby waived by the Borrower; and (b) declare any other amounts payable to
the Lender under this Agreement or as contemplated hereby due and payable;
provided, however, that upon the occurrence of an Event of Default under Section
7.1(h), the Note, together with interest accrued thereon, shall automatically
become and be due and payable, without presentment, demand, protest or notice of
any kind, or any other action of the Lender of any kind, all of which are hereby
waived by the Borrower.
(a) In case any one or more Events of Default shall occur and
be continuing, the Lender or its agent may proceed to protect and enforce the
rights of the Lender by an action at law, suit in equity or other appropriate
proceeding, whether for the specific performance of any agreement in favor of
the Lender or its agent which is contained in any of the Transaction Documents
or in the Note or for an injunction against a violation of any of the terms
hereof or thereof, or in aid of the exercise of any power granted hereby or
thereby or by law (including, without limitation, the right to enforce the
Guaranty and the Pledge Agreement, each in accordance with its respective
terms). In case of a default in the payment of any principal of or interest on
the Note, the Borrower will pay to the Lender such further amount as shall be
sufficient to cover the cost and the expenses of collection, including, without
limitation, attorneys fees, expenses and disbursements. No course of dealing
and no delay on the part of the Lender or its agent in exercising any rights
shall operate as a waiver thereof or otherwise prejudice the Lenders or its
agents rights. No right conferred hereby or by the Note upon any holder thereof
shall be exclusive of any other right referred to herein or therein or now
available at law or in equity, by statute or otherwise.
(b) If any Event of Default shall have occurred and be
continuing, the Lender may exercise, without any other notice to or demand upon
any Loan Party, in addition to the other rights and remedies provided for herein
or in any other Transaction Document or otherwise available to it, all the
rights and remedies of a secured party upon default under the UCC (whether or
not the UCC applies to the affected Collateral) and also may:
(i) without notice except as specified below, sell, resell,
assign and deliver or grant a license to use or otherwise dispose of the
Collateral or any part thereof, in one or more parcels at public or private
sale, at any of the Lenders offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as the Lender may deem commercially
reasonable; and
(ii) exercise any and all rights and remedies of the Borrower
under or in connection with the Collateral, or otherwise in respect of the
Collateral, including without limitation, (A) any and all rights of the Borrower
to demand or otherwise require payment of any amount under, or performance of
any provision of, the Collateral, (B) withdraw, or cause or direct the
withdrawal, of all funds with respect to the Deposit Accounts, (C) exercise all
other rights and remedies with respect to the Collateral, including without
limitation, those set forth in Section 9-607 of the UCC and (D) exercise any and
all voting, consensual and other rights with respect to any Collateral.
(c) Each Loan Party agrees that, to the extent notice of sale
shall be required by law, at least ten (10) days notice to the Borrower of the
time and place of any public sale or the time after which any private sale is to
be made shall constitute reasonable notification. At any sale of the Collateral,
if permitted by applicable law, the Lender may be the purchaser, licensee,
assignee or recipient of the Collateral or any part thereof and shall be
entitled, for the purpose of bidding and making settlement or payment of the
purchase price for all or any portion of the Collateral sold, assigned or
licensed at such sale, to use and apply any of the Obligations as a credit on
account of the purchase price of the Collateral or any part thereof payable at
such sale. To the extent permitted by applicable law, each Loan Party waives all
claims, damages and demands it may acquire against the Lender arising out of the
exercise by it of any rights hereunder. Each Loan Party hereby waives and
releases to the fullest extent permitted by law any right or equity of
redemption with respect to the Collateral, whether before or after sale
hereunder, and all rights, if any, of marshalling the Collateral and any other
security for the Obligations or otherwise. The Lender shall not be liable for
failure to collect or realize upon any or all of the Collateral or for any delay
in so doing nor shall it be under any obligation to take any action with regard
thereto. The Lender shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given. The Lender may adjourn any
public or private sale from time to time by announcement at the time and place
fixed therefore, and such sale may, without further notice, be made at the time
and place to which it was so adjourned.
(d) The Lender may, without notice to the Borrower or either of
the Guarantors except as required by law and at any time or from time to time,
charge, set off and otherwise apply all or part of the Obligations against any
funds deposited with it or held by it or against any obligations it owes to any
Loan Party.
ARTICLE VIII
INDEMNIFICATION
(a) Each Loan Party shall jointly and severally indemnify the
Lender and each Related Party of any of the foregoing Persons (each such Person
being called an Indemnitee) against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses
(including the fees, charges and disbursements of any counsel for any
Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees
and time charges and disbursements for attorneys who may be employees of any
Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any
Person (including the Borrower, any other Loan Party or any of their respective
subsidiaries) other than such Indemnitee and its Related Parties arising out of,
in connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Transaction Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto of their
respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, (ii) any Loan or the use or
proposed use of the proceeds therefrom, (iii) any actual or alleged presence or
release of hazardous materials on or from any property owned or operated by
Borrower, any other Loan Party or any of their respective subsidiaries, or any
environmental claim related in any way to Borrower, any other Loan Party or any
of their respective subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third
party or by Borrowers, any other Loan Party or any of their respective
subsidiaries, and regardless of whether any Indemnitee is a party thereto;
provided, such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
(x) are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee, or (y) result from a claim brought by Borrower,
any other Loan Party or any of their respective subsidiaries against an
Indemnitee for breach in bad faith of such Indemnitees obligations hereunder or
under any other Transaction Document, if Borrower, any other Loan Party or any
of their respective subsidiaries has obtained a final and nonappealable judgment
in its favor on such claim as determined by a court of competent jurisdiction.
(b) Waiver of Consequential Damages, Etc. To the
fullest extent permitted by applicable law, no party hereto shall assert, and
each party hereto hereby waives, any claim against any Indemnitee or any other
party hereto, on any theory of liability, for special, indirect, consequential
or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement, any other Transaction
Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No
Indemnitee shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Credit Documents or the transactions
contemplated hereby or thereby.
(c) Payments. All amounts due under this Article VIII
shall be payable promptly after demand therefor.
(d) Survival. Each partys obligations under this
Article VIII shall survive the termination of the Transaction Documents and
payment of the obligations hereunder.
ARTICLE IX
AMENDMENT AND WAIVER
No amendment of any provision of this Agreement, including any
amendment of this Article IX, shall be valid unless the same shall be in writing
and signed by the Borrower, the Guarantors and the Lender. No waiver by any
party of any default, misrepresentation, or breach of warranty or covenant
hereunder or under any other Transaction Document, whether intentional or not,
shall be deemed to extend to any prior or subsequent default, misrepresentation,
or breach of warranty or covenant hereunder or thereunder or affect in any way
any rights arising by virtue of any prior or subsequent such occurrence.
ARTICLE X
MISCELLANEOUS
This Agreement and the rights of the parties hereunder shall be
governed in all respects by the laws of the State of Delaware wherein the terms
of this Agreement were negotiated, excluding to the greatest extent permitted by
law any rule of law that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
10.2 |
SUCCESSORS AND ASSIGNS |
Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon and enforceable by and
against, the parties hereto and their respective successors, assigns, heirs,
executors and administrators. No party may assign any of its rights hereunder
without the prior written consent of the other parties; provided, however, that
the Lender may assign any of its rights under any of the Transaction Documents
to (a) any Affiliate of such Lender or (b) any Person to whom such Lender shall
transfer the Note, provided, that in each case the transferee will be subject to
the applicable terms of the Transaction Documents to the same extent as if such
transferee were the original Lender hereunder.
This Agreement (including the Exhibits and Schedules hereto),
the other Transaction Documents and any other documents delivered pursuant
hereto and simultaneously herewith constitute the full and entire understanding
and agreement between the parties with regard to the subject matter hereof and
thereof.
All notices, demands or other communications given hereunder
shall be in writing and shall be sufficiently given if transmitted by facsimile
or delivered either personally or by a nationally recognized courier service
marked for next business day delivery or sent in a sealed envelope by first
class mail, postage prepaid and either registered or certified, return receipt
requested, addressed as follows:
(a) if to any Loan Party:
Revett Mining Company, Inc.
11115
East Montgomery, Suite G
Spokane, Washington 99206
Attention: Ken
Eickerman
Facsimile: (509) 891-8901
Email: KEickerman@revettminerals.com
with a copy to:
Randall Danskin, P.S.
1500 Bank of
America Financial Center
601 West Riverside Avenue
Spokane, Washington
99201-0626
Attention: Douglas J. Siddoway
Facsimile: (509) 624-2528
Email: djs@randalldanskin.com
(b) if to the Lender:
Hecla Mining Company
6500 N.
Mineral Drive, Suite 200
Coeur dAlene, Idaho 83815-9408
Attention:
David C. Sienko
Facsimile: (208) 209-1278
Email:
dsienko@hecla-mining.com
with a copy to:
Sheppard Mullin Richter & Hampton
LLP
70 West Madison, 48th Floor
Chicago, Illinois 60602
Attention: Kenneth A. Peterson
Facsimile: (312) 499-6301
Email:
kpeterson@sheppardmullin.com
or to such other address with respect to any party hereto as
such party may from time to time notify (as provided above) the other parties
hereto. Any such notice, demand or communication shall be deemed to have been
given (i) on the date of delivery, if delivered personally, (ii) on the date of
facsimile transmission, receipt confirmed, (iii) one Business Day after delivery
to a nationally recognized overnight courier service, if marked for next day
delivery, or (iv) five Business Days after the date of mailing, if mailed.
10.5 |
DELAYS, OMISSIONS OR
WAIVERS |
No delay or omission to exercise any right, power or remedy
accruing to the Lender upon any breach or default of the Borrower under this
Agreement shall impair any such right, power or remedy of the Lender nor shall
it be construed to be a waiver of any such breach or default, or an
acquiescence, therein, or of or in any similar breach or default thereafter
occurring. Any permit, consent or approval of any kind or character on the part
of the Lender of any breach or default under this Agreement must be made in
writing and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement or by law or otherwise
afforded to the Lender, shall be cumulative and not alternative.
10.6 |
INDEPENDENCE OF COVENANTS AND REPRESENTATIONS AND
WARRANTIES |
All covenants hereunder shall be given independent effect so
that if a certain action or condition constitutes a default under a certain
covenant, the fact that such action or condition is permitted by another
covenant shall not affect the occurrence of such default. In addition, all
representations and warranties hereunder shall be given independent effect so
that if a particular representation or warranty proves to be incorrect or is
breached, the fact that another representation or warranty concerning the same
or similar subject matter is correct or is not breached will not affect the
incorrectness of or a breach of a representation and warranty hereunder.
In case any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
(a) The Borrower and each of the Guarantors shall bear its own
expenses and legal fees incurred on its behalf with respect to the negotiation,
execution and consummation of the transactions contemplated by this Agreement.
(b) [Intentionally Omitted]
(c) The Borrower and each of the Guarantors further agrees to
pay or reimburse the Lender and its agents for all out-of-pocket costs and
expenses, including, without limitation, attorneys fees and disbursements, and
costs of settlement incurred by the Lender or its agents after the occurrence of
an Event of Default (i) in enforcing any obligation or in foreclosing against
the Collateral or exercising or enforcing any other right or remedy available by
reason of such Event of Default; (ii) in connection with any negotiation,
refinancing or restructuring of, or attempted refinancing or restructuring of,
the credit arrangements provided under this Agreement and the other Transaction
Documents in the nature of a work-out or in any insolvency or bankruptcy
proceeding; (iii) in commencing, defending or intervening in any litigation or
in filing a petition, complaint, answer, motion or other pleadings in any legal
proceeding relating to either Borrower or any of its Affiliates and related to
or arising out of the transactions contemplated hereby or by any of the other
Transaction Documents; (iv) in taking any other action in or with respect to any
suit or proceeding (whether in bankruptcy or otherwise) arising out of or in
connection with this Agreement or any of the other Transaction Documents; (v) in
protecting, preserving, collecting, leasing, selling, taking possession of, or
liquidating any of the Collateral; or (vi) attempting to enforce or enforcing
any security interest in any of the Collateral or any other rights under any
Transaction Document.
(a) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the district court of the State of Idaho and the Federal Courts
of the United States located in the State of Idaho, in any action or proceeding
arising out of or relating to this Agreement or any of the other Transaction
Documents to which it is a party or to whose benefit it is entitled, or for
recognition or enforcement of any judgment, and each of the parties hereto
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in the district court of the
State of Idaho or, to the fullest extent permitted by law, in such United States
Federal court located in the State of Idaho. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the right that any party may
otherwise have to bring any action or proceeding relating to this Agreement or
any of the other Transaction Documents in the courts of any other jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or in relation to this Agreement or any
other Transaction Document to which it is a party in any such district court or
United States Federal court sitting in the State of Idaho. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
10.10 |
WAIVER OF JURY TRIAL |
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY TRANSACTION
DOCUMENT OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
10.11 |
TITLES AND SUBTITLES |
The titles of the articles, sections and subsections of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
This Agreement may be executed in any number of counterparts,
including by facsimile copy, each of which shall be deemed an original, but all
of which together shall constitute one instrument.
ARTICLE XI
CERTAIN DEFINED TERMS
For purposes of this Agreement, the following terms have the
meanings indicated (unless otherwise expressly provided herein):
1940 Act means the Investment Company Act of 1940, as
amended, and any applicable rules and regulations thereunder, and any successor
to such statute, rules or regulations. Any reference herein to a specific
section, rule or regulation of the 1940 Act shall be deemed to include any
corresponding provisions of future law.
Affiliate has the meaning specified in Rule 501(b)
under the Securities Act.
Agreement has the meaning set forth in the Preamble
hereto.
Borrower has the meaning set forth in the Preamble
hereto.
Business Day means any day other than a Saturday
or Sunday on which commercial banks are authorized to close, or are in fact
closed, in Coeur dAlene, Idaho.
Change of Control means the occurrence of any of the
following: (a) the Borrower consolidates with, or merges with or into, another
Person or sells, assigns, conveys, transfers, leases or otherwise disposes of
all or substantially all of the Borrowers assets to any Person, or any Person
consolidates with, or merges with or into, the Borrower, (b) the Borrower sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its properties and assets (either in one transaction or a
series of related transactions) to any Person, or (c) either of the Guarantors
shall cease to be directly or indirectly wholly-owned subsidiaries of the
Borrower.
Closing Date has the meaning set forth in Section 1.1.
Default means the occurrence of any event that with
the passage of time or the giving of notice or both would constitute an Event of
Default.
Dollars and the sign $ mean the lawful money of the
United States of America.
GAAP means generally accepted accounting principles in
the United States.
Guarantor Collateral means all collateral pledged by
the Guarantor to the Lender pursuant to the Pledge Agreement.
Guaranty means the Guaranty of even date herewith made
by the Guarantors in favor or the Lender.
Guarantors has the meaning set forth in the Preamble
hereto.
Interest Period means an interest period of one day or
one-, two-, or three-months (or, with the consent of the Lender, six-, nine- or
twelve-months), as selected by the Borrowers, (i) initially, commencing on the
Closing Date; and (ii) thereafter, commencing on the day on which the
immediately preceding Interest Period expires; provided, (a) if an Interest
Period would otherwise expire on a day that is not a Business Day, such Interest
Period shall expire on the next succeeding Business Day unless no further
Business Day occurs in such month, in which case such Interest Period shall
expire on the immediately preceding Business Day; (b) any Interest Period that
begins on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clauses (c) and (d), of this definition, end
on the last Business Day of a calendar month; and (c) no Interest Period shall
extend beyond such Loans Maturity Date.
Interest Rate Determination Date means, with respect
to any Interest Period, the date that is two Business Days prior to the first
day of such Interest Period.
Legal Requirements means any federal, state, local,
municipal, foreign or other law, statute, constitution, principle of common law,
resolution, ordinance, code, order, edict, judgment, decree, rule, regulation,
ruling or requirement issued, enacted, adopted, promulgated, implemented or
otherwise put into effect by or under the authority of any governmental entity.
Lender has the meaning set forth in the Preamble
hereto.
LIBOR means the rate per annum equal to the rate
determined by the Lender and equal to the rate (rounded upwards, if necessary,
to the nearest 1/100 of 1%) quoted as (i) the LIBOR Rate set forth in the
money rates section of the Wall Street Journal for the date that is the
applicable Interest Rate Determination Date or (ii) in the event the rate
referenced in the preceding clause (i) does not appear on such page or service
or if such page or service shall cease to be available, the rate per annum
determined as of approximately 9:00 a.m. (Los Angeles time) on such Interest
Rate Determination Date by reference to the British Bankers Association
Interest Settlement Rates for deposits in Dollars (as set forth by any service
selected by the Lender that has been nominated by the British Bankers
Association (or any successor or substitute agency determined by the Lender) as
an authorized information vendor for the purpose of displaying such rates) with
a term equivalent to the applicable Interest Period. The Lender currently uses
the rate quoted in the Wall Street Journal as indicated above to provide
information with respect to the interbank Eurodollar market, but the Lender, in
its sole discretion, may change the service providing such information at any
time. Each determination of the LIBOR Base Rate by the Lender shall be
conclusive and binding upon the parties hereto, absent manifest error.
Losses means any claims, losses, damages,
liabilities (or actions in respect thereof), obligations, penalties, awards,
judgments, expenses (including, without limitation, reasonable fees and expenses
of counsel) or disbursements.
Material Adverse Effect means (a) a material adverse
effect on, or change in, the business, prospects, properties, operations,
condition (financial or other) or results of operations of the Borrower, or (b)
a material adverse effect on (i) the ability of the Borrower or either of the
Guarantors to perform its respective obligations or (ii) the rights or remedies
of the Lender under any Transaction Document or the Merger Agreement.
Merger Agreement means that Agreement and Plan of
Merger, dated as of March 26, 2015, by and among the Borrower, the Lender and
RHL Holdings, Inc., a Delaware corporation.
Note has the meaning set forth in Section 1.2.
Obligations means (i) obligations of the Borrower from
time to time arising under this Agreement, any other Transaction Document or
otherwise with respect to the due and punctual payment of (A) the principal of
and premium, if any, and interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loan, when and as due, whether at maturity, by acceleration, or otherwise,
(B) each payment required to be made by the Borrower under this Agreement or any
other Transaction Document, when and as due, and (C) all other monetary
obligations, including fees, costs, attorneys fees and disbursements,
reimbursement obligations, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), of
the Borrower under this Agreement and any other Transaction Document, and (ii)
all other agreements, duties, indebtedness, obligations and liabilities of any
kind of the Borrower under, out of, or in connection with this Agreement and the
other Transaction Documents or any other document made, delivered or given in
connection with any of the foregoing, in each case whether now existing or
hereafter arising, whether evidenced by a note or other writing, whether allowed
in any bankruptcy, insolvency, receivership or other similar proceeding, whether
arising from an extension of credit, loan, indemnification or otherwise, and
whether direct or indirect, absolute or contingent, due or to become due,
primary or secondary, or joint or several.
Person means any individual, corporation, limited
liability company, partnership, association, trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
Pledge Agreement means the Pledge Agreement of even
date herewith by and among the Grantor and the Lender, as such agreement may be
supplemented, amended or otherwise modified from time to time in accordance with
its terms.
Pledged Collateral has the meaning set forth in
Section 1.5.
Related Parties means, with respect to any Person,
such Persons Affiliates and the partners, directors, officers, employees,
agents, trustees, administrators, managers, advisors and representatives of such
Person and of such Persons Affiliates.
Securities Act means the Securities Act of 1933, as
amended, and any applicable rules and regulations thereunder, and any successor
to such statute, rules or regulations. Any reference herein to a specific
section, rule or regulation of the Securities Act shall be deemed to include any
corresponding provisions of future law.
Transaction Documents means, collectively, this
Agreement, the Note, the Guaranty, the Pledge Agreement and each other document
or agreement executed and/or delivered in connection therewith.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have executed this Term
Loan Agreement as of the date first written above.
BORROWER: |
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REVETT MINING COMPANY, INC. |
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By: |
/s/ John Shanahan |
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Name: John Shanahan |
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Title: President and Chief Executive
Officer |
GUARANTORS: |
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REVETT SILVER COMPANY |
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By: |
/s/ John Shanahan |
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Name: John Shanahan |
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Title: President and Chief Executive Officer
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REVETT HOLDINGS, INC. |
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By: |
/s/
Paul Lammers |
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Name:
Paul Lammers |
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Title:
Director |
LENDER: |
HECLA MINING COMPANY |
By: |
/s/ David Sienko |
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Name: David Sienko |
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Title: Vice
President |
EXHIBIT A
FORM OF NOTE
Term Loan Note
April 17, 2015 FOR VALUE RECEIVED, the undersigned, REVETT
MINING COMPANY, INC., a Delaware corporation (the Borrower), hereby
promises to pay HECLA MINING COMPANY, a Delaware corporation, or its registered
assigns (the Lender) the principal sum of ONE MILLION FIVE HUNDRED
THOUSAND AND NO/100 DOLLARS ($1,500,000.00) or, if less, the outstanding
aggregate principal amount of all Loans made by Lender to Borrower under the
Term Loan and Security Agreement, dated as of April 17, 2015, among the
Borrower, Revett Silver Company, a Montana corporation, Revett Holdings, Inc., a
Montana corporation and the Lender (as amended, restated, extended, supplemented
or otherwise modified in writing from time to time, the Loan
Agreement). Capitalized terms used herein and not otherwise defined shall
have the meanings assigned to them in the Loan Agreement.
(a) The Borrower promises to pay interest on the unpaid
principal amount of each Loan from the date of such Loan until such principal
amount is paid in full, at the interest rates and at the times provided in the
Loan Agreement. All payments of principal and interest shall be made to the
Lender in U.S. Dollars in immediately available funds at the address of the
Lender set forth in the Loan Agreement. The Borrower shall repay the aggregate
outstanding principal amount of the Loans, together with all accrued but unpaid
interest thereon, in full on the earlier of July 1, 2015, or the date upon which
the Loan becomes or is declared due and payable pursuant to Article VII of the
Loan Agreement.
(b) This Note is the Note referred to in the Loan Agreement, is
entitled to the benefits thereof and may be prepaid in whole or in part subject
to the terms and conditions provided therein. This Note is entitled to the
benefits of the Guaranty of even date herewith among the Guarantors and the
Lender and the Pledge Agreement of even date herewith by and between Revett
Silver Company and the Lender. Upon the occurrence and continuation of any Event
of Default under the Loan Agreement, all principal and all accrued interest then
remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable, all as provided in the Loan Agreement.
(c) Each Loan made by the Lender shall be evidenced by one or
more records or accounts maintained by the Lender in the ordinary course of
business. The Lender may also attach schedules to this Note and endorse thereon
the date, amount and maturity of its Loans and all payments made on the Loans;
provided that any failure of the Lender to make any such recordation or
endorsement shall not affect the Obligations of the Borrower under this Note.
(d) The Borrower hereby waives diligence, presentment, demand,
protest, notice of intent to accelerate, notice of acceleration, and any other
notice of any kind. No failure on the part of the holder hereof to exercise, and
no delay in exercising, any right, power or privilege hereunder shall operate as
a waiver thereof or a consent thereto; nor shall a single or partial exercise of
any such right, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL
FOR ALL PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE
REVETT MINING COMPANY, INC. |
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By: |
/s/ John
Shanahan |
Name: |
John Shanahan |
Title: |
President and Chief Executive Officer
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GUARANTY
among
REVETT SILVER COMPANY,
REVETT HOLDINGS, INC.
and
HECLA MINING COMPANY
dated as of
April 17, 2015
TABLE OF CONTENTS
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Page |
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ARTICLE I DEFINITIONS |
2 |
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ARTICLE II AGREEMENT TO GUARANTEE
OBLIGATIONS |
3 |
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Section 2.01 |
Guaranty |
3 |
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Section 2.02 |
Reinstatement |
4 |
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ARTICLE III GUARANTY ABSOLUTE AND
UNCONDITIONAL; WAIVERS |
4 |
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Section 3.01 |
Guaranty Absolute and
Unconditional; No Waiver of Obligations |
4 |
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Section 3.02 |
Waivers and Acknowledgements. |
5 |
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ARTICLE IV GUARANTOR RIGHTS OF
SUBROGATION, ETC. |
6 |
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Section 4.01 |
Agreement to Pay; Subrogation,
Subordination, Etc. |
6 |
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ARTICLE V REPRESENTATIONS AND
WARRANTIES; COVENANTS |
6 |
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Section 5.01 |
Representations and Warranties |
6 |
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Section 5.02 |
Covenants |
6 |
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ARTICLE VI MISCELLANEOUS |
7 |
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Section 6.01 |
Taxes. |
7 |
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Section 6.02 |
Right of Set-off |
7 |
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Section 6.03 |
Amendments |
8 |
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Section 6.04 |
Notices |
8 |
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Section 6.05 |
Continuing Guaranty;
Assignments Under the Loan Agreement |
8 |
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Section 6.06 |
Counterparts; Integration;
Effectiveness; Electronic Execution |
8 |
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Section 6.07 |
Governing Law; Jurisdiction;
Etc. |
8 |
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Section 6.08 |
Waiver of Jury Trial |
9
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GUARANTY
This GUARANTY (this Agreement), dated as of April 17,
2015 is made by and among REVETT SILVER COMPANY, a Montana corporation
(RSC), REVETT HOLDINGS, INC., a Montana corporation (Revett
Holdings and together with RSC, the Guarantor) and HECLA MINING
COMPANY (the Lender).
RECITALS
WHEREAS, Revett Mining Company, Inc., a Delaware corporation
(Debtor), Guarantor and Lender, have entered into a Term Loan and
Security Agreement dated as of April 17, 2015 (as amended, restated,
supplemented or otherwise modified from time to time, the Loan
Agreement);
WHEREAS, it is a condition precedent to Lenders obligations
under the Loan Agreement that Guarantor execute and deliver this Guaranty;
WHEREAS, the Debtor, directly or indirectly, owns all of the
equity interests of the Guarantor and Guarantor will derive substantial direct
and indirect benefits from the transactions contemplated by the Loan Agreement;
NOW, THEREFORE, in consideration of the premises and for other
valuable consideration the receipt of which is hereby acknowledged, Guarantor
hereby agrees as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used but not defined herein shall have the
meanings set forth in the Loan Agreement. For purposes of this Agreement, the
following terms shall have the following meanings:
Bankruptcy Code means Title 11 of the United States
Code, as amended, or any similar federal or state law for the relief of debtors.
Debtor has the meaning set forth in the Recitals
hereof.
Debtor Relief Laws means the Bankruptcy Code and all
other liquidation, bankruptcy, assignment for the benefit of creditors,
conservatorship, moratorium, receivership, insolvency, rearrangement,
reorganization or similar debtor relief laws of the US or other applicable
jurisdictions in effect from time to time.
Governmental Authority means the government of any
nation or any political subdivision thereof, whether at the national, state,
territorial, provincial, municipal or any other level, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of, or pertaining to, government.
Guarantor has the meaning set forth in the
Preamble hereof.
Lender has the meaning set forth in the
Preamble hereof.
Loan Agreement has the meaning set forth in the
Recitals hereof.
Obligations has the meaning specified in Section
2.01.
Post-Petition Interest has the meaning specified in
Section 2.01(a).
Revett Holdings has the meaning set forth in the
Preamble hereof.
RSC has the meaning set forth in the Preamble hereof.
Related Parties means, with respect to any Person,
such Persons Affiliates and the directors, officers, employees, partners,
agents, trustees, administrators, managers, advisors and representatives of it
and its Affiliates.
Taxes means any and all present or future income,
stamp or other taxes, levies, imposts, duties, deductions, charges, fees or
withholdings (including backup withholding) imposed, levied, withheld or
assessed by any Governmental Authority, together with any interest, additions to
tax or penalties imposed thereon and with respect thereto.
Termination Date has the meaning specified in
Section 6.05.
ARTICLE II
AGREEMENT TO GUARANTEE OBLIGATIONS
Section 2.01 Guaranty. Guarantor, hereby
jointly and severally, absolutely, unconditionally and irrevocably guarantees,
as primary obligor and not merely as surety,
(a) the due and prompt payment by the Debtor of:
(i) the principal of and premium, if any, and interest at the
rate specified in the Loan Agreement (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding
(Post-Petition Interest)) on the Loans made pursuant to the Loan
Agreements when and as due, whether at scheduled maturity, date set for
prepayment, by acceleration or otherwise, and
(ii) all other monetary obligations of Debtor to Lender under
the Transaction Documents, when and as due, including fees, costs, expenses
(including, without limitation, fees and expenses of counsel incurred by Lender
in enforcing any rights under this Agreement or any other Transaction Document),
contract causes of action and indemnities, whether primary, secondary, direct or
indirect, absolute or contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding); and
(b) the due and prompt performance of all covenants,
agreements, obligations and liabilities of Debtor under or in respect of the
Transaction Documents;
all such obligations in subsections (a) and (b), whether now or
hereafter existing, being referred to collectively as the Obligations.
Guarantor further agrees that all or part of the Obligations may be increased,
extended, substituted, amended, renewed or otherwise modified without notice to or consent from Guarantor and such actions
shall not affect the liability of Guarantor hereunder. Without limiting the
generality of the foregoing, Guarantors liability shall extend to all amounts
that constitute part of the Obligations and would be owed by Debtor to Lender
under or in respect of the Transaction Documents but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving Debtor.
Section 2.02 Reinstatement. Guarantor
agrees that its guaranty hereunder shall continue to be effective or be
reinstated, as the case may be, if at any time all or part of any payment of any
Obligation is rescinded or must otherwise be returned by Lender or any other
Person upon the insolvency, bankruptcy or reorganization of Debtor or otherwise.
ARTICLE III
GUARANTY ABSOLUTE AND UNCONDITIONAL;
WAIVERS
Section 3.01 Guaranty Absolute and
Unconditional; No Waiver of Obligations. Guarantor guarantees that the
Obligations will be paid strictly in accordance with the terms of the
Transaction Documents, regardless of any law, regulation or order of any
Governmental Authority now or hereafter in effect. The Obligations of Guarantor
hereunder are independent of the Obligations of Debtor under any Transaction
Document. A separate action may be brought against any Guarantor to enforce this
Agreement, whether or not any action is brought against Debtor or the other
Guarantor or whether or not Debtor or the other Guarantor is joined in any such
action. The liability of each Guarantor hereunder is joint and several,
irrevocable, continuing, absolute and unconditional and the Obligations of each
Guarantor hereunder, shall not be discharged or impaired or otherwise effected
by, and each Guarantor hereby irrevocably waives any defenses to enforcement it
may have (now or in the future) by reason of:
(a) any illegality or lack of validity or enforceability of any
Obligation or any Transaction Document or any related agreement or instrument;
(b) any change in the time, place or manner of payment of, or
in any other term of, the Obligations or any other obligation of Debtor under
any Transaction Document, or any rescission, waiver, amendment or other
modification of any Transaction Document or any other agreement, including any
increase in the Obligations resulting from any extension of additional credit or
otherwise;
(c) any taking, exchange, substitution, release, impairment or
non-perfection of any collateral, or any taking, release, impairment, amendment,
waiver or other modification of any guaranty, for the Obligations;
(d) any manner of sale, disposition or application of proceeds
of any collateral or other assets to all or part of the Obligations;
(e) any default, failure or delay, willful or otherwise, in the
performance of the Obligations;
(f) any change, restructuring or termination of the corporate
structure, ownership or existence of Debtor or any of its subsidiaries or any
insolvency, bankruptcy, reorganization or other similar proceeding affecting
Debtor or its assets or any resulting release or discharge of any Obligation;
(g) any failure of Lender to disclose to Guarantor any
information relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of Debtor now or hereafter
known to Lender; Guarantor waiving any duty of Lender to disclose such
information;
(h) the failure of any other person to execute or deliver this
Agreement, or any other guaranty or agreement or the release or reduction of
liability of Guarantor or other guarantor or surety with respect to the
Obligations;
(i) the failure of Lender to assert any claim or demand or to
exercise or enforce any right or remedy under the provisions of any Transaction
Document or otherwise;
(j) any defense, set-off or counterclaim (other than a defense
of payment or performance) that may at any time be available to, or be asserted
by, Debtor against Lender; or
(k) any other circumstance (including, without limitation, any
statute of limitations) or manner of administering the Loan or any existence of
or reliance on any representation by Lender that might vary the risk of
Guarantor or otherwise operate as a defense available to, or a legal or
equitable discharge of, Debtor or any other guarantor or surety.
Section 3.02 Waivers and Acknowledgements.
(a) Guarantor hereby unconditionally and irrevocably waives any
right to revoke this Agreement and acknowledges that this Agreement is
continuing in nature and applies to all presently existing and future
Obligations.
(b) Guarantor hereby unconditionally and irrevocably waives
promptness, diligence, notice of acceptance, presentment, demand for
performance, notice of non-performance, default, acceleration, protest or
dishonor and any other notice with respect to any of the Obligations and this
Agreement and any requirement that Lender protect, secure, perfect or insure any
lien or any property subject thereto.
(c) Guarantor hereby unconditionally and irrevocably waives any
defense based on any right of set-off or recoupment or counterclaim against or
in respect of the Obligations of Guarantor hereunder.
(d) Guarantor acknowledges that Lender may, at its election and
without notice to or demand upon Guarantor, foreclose on any collateral held by
it by one or more judicial or non-judicial sales, accept an assignment of any
such collateral in lieu of foreclosure, compromise or adjust any part of the
Obligations, make any other accommodation with Debtor or any other guarantor or
exercise any other right or remedy available to it against Debtor or any other
guarantor, without affecting or impairing in any way the liability of Guarantor
hereunder except to the extent the Obligations have been paid in full or
collateralized in full in cash. Guarantor hereby waives any defense arising out
of such election even though such election operates, pursuant to applicable law,
to impair or to extinguish any right of subrogation, reimbursement, exoneration,
contribution or indemnification or other right or remedy of Guarantor against
Debtor or any other guarantor or any collateral.
ARTICLE IV
GUARANTOR RIGHTS OF SUBROGATION, ETC.
Section 4.01 Agreement to Pay; Subrogation,
Subordination, Etc. Without limiting any other right that Lender has at law
or in equity against Guarantor, if Debtor fails to pay any Obligation when and
as due, whether at maturity, by acceleration, after notice of prepayment or
otherwise, Guarantor jointly and severally agrees to promptly pay the amount of
such unpaid Obligations to Lender in cash. Upon payment by Guarantor of any sums
to Lender as provided herein, all of Guarantors rights of subrogation,
exoneration, contribution, reimbursement, indemnity or otherwise arising
therefrom against Debtor shall be subordinate and junior in right of payment to
the prior indefeasible payment in full in cash of all Obligations. In addition,
any indebtedness of Debtor now or hereafter held by Guarantor is hereby
subordinated in right of payment to the prior payment in full in cash of the
Obligations. If after the occurrence and during the continuance of an event of
default under the Loan Agreement, any payment shall be paid to Guarantor in
violation of the immediately preceding sentence on account of (i) such
subrogation, exoneration, contribution, reimbursement, indemnity or similar
right or (ii) any such indebtedness of Debtor, such amount shall be held in
trust for the benefit of Lender, segregated from other funds of Guarantor, and
promptly paid or delivered to Lender in the same form as so received (with any
necessary endorsement or assignment) to be credited against the payment of the
Obligations, whether due or to become due, in accordance with the terms of the
Transaction Documents or to be held as collateral for any Obligations.
ARTICLE V
REPRESENTATIONS AND WARRANTIES;
COVENANTS
Section 5.01 Representations and
Warranties. Guarantor represents and warrants that:
(a) There are no conditions precedent to the effectiveness of
this Agreement that have not been satisfied or waived.
(b) Guarantor has, independently and without reliance upon
Lender and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and any
other Transaction Document to which it is or may become a party, and has
established adequate procedures for continually obtaining information pertaining
to, and is now and at all times will be completely familiar with, the business,
condition (financial or otherwise), operations, performance, properties and
prospects of Debtor.
Section 5.02 Covenants. Guarantor
covenants and agrees that, until the Termination Date, Guarantor will perform
and observe, and cause each of its subsidiaries to perform and observe, all of
the terms, covenants and agreements set forth in the Transaction Documents that
are required to be, or that Debtor has agreed to cause to be, performed or
observed by Guarantor or Debtor.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Taxes.
(a) Any and all payments by Guarantor under or in respect of
this Agreement shall be made free and clear of and without deduction or
withholding for any Taxes except as required by applicable law. If Guarantor is
required by applicable law (as determined in the good faith discretion of
Guarantor) to deduct or withhold any Taxes from such payments, then: (i) the
amount payable by Guarantor shall be increased so that after all such required
deductions or withholdings are made (including deductions or withholdings
applicable to additional amounts payable under this Section), Lender receives an
amount equal to the amount it would have received had no such deduction or
withholding been made, and (ii) Guarantor shall make such deductions or
withholdings and timely pay the full amount deducted or withheld to the relevant
Governmental Authority in accordance with applicable law.
(b) Guarantor shall jointly and severally indemnify Lender,
within ten days after demand therefor, for the full amount of any Taxes
(including Taxes imposed on or attributable to amounts payable under this
Section) paid or payable by Lender on or with respect to an amount payable by
Guarantor under or in respect of this Agreement (or required to be withheld or
deducted from any such amount paid to Lender), together with any expenses
arising in connection therewith and with respect thereto, whether or not such
Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate from Lender as to the amount of such payment or
liability delivered to Guarantor shall be conclusive absent manifest error.
(c) Each partys obligations under this Section 6.01
shall survive the replacement of or any assignment of rights by Transaction and
the repayment, discharge or satisfaction of all obligations under the Loan
Agreement.
Section 6.02 Right of Set-off. If an event
of default under the Loan Agreement shall have occurred and be continuing,
Lender and each of its Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, and without prior notice to
Guarantor or Debtor, any such notice being expressly waived by Guarantor, to set
off and appropriate and apply any and all deposits (general or special, time or
demand, provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by Lender or such Affiliate
to or for the credit or the account of Guarantor or Debtor against any and all
of the obligations of Guarantor or Debtor now or hereafter existing under this
Agreement or any other Transaction Document to Lender or its Affiliates whether
direct or indirect, absolute or contingent, matured or unmatured, and
irrespective of whether or not Lender or its Affiliates shall have made any
demand under this Agreement or any other Transaction Document and although such
obligations of Guarantor or Debtor are owed to a branch, office or Affiliate of
Lender different from the branch, office or Affiliate holding such deposit or
obligated on such indebtedness. The rights of Lender and its Affiliates under
this Section are in addition to other rights and remedies (including other
rights of set-off) that Lender or such Affiliates may have. Lender agrees to
notify Guarantor promptly after any such set off and appropriation and
application; provided that the failure to give such notice shall not affect the
validity of such set off and appropriation and application.
Section 6.03 Amendments. No term or
provision of this Agreement may be waived, amended, supplemented or otherwise
modified except in a writing signed by Guarantor and Lender.
Section 6.04 Notices. Notices shall be
given in the manner, and at the addresses, specified in the Loan Agreement.
Section 6.05 Continuing Guaranty; Assignments
Under the Loan Agreement. This Agreement is a continuing guaranty and shall
(i) remain in full force and effect until the payment in full in cash of the
Obligations and all other amounts payable under this Agreement (the
Termination Date), (ii) be binding on Guarantor, its successors and
assigns, and (iii) inure to the benefit of and be enforceable by Lender and
their successors and assigns. Lender may assign or otherwise transfer all or any
portion of their rights and obligations under the Loan Agreements (including all
or any portion of its commitments and the extensions of credit owing to it) to
any other person, and such other person shall thereupon become vested with all
the benefits in respect thereof granted to such Lender herein or otherwise, in
each case as and to the extent provided in the Loan Agreements. Guarantor shall
have no right to assign its rights hereunder or any interest herein without the
prior written consent of Lender.
Section 6.06 Counterparts; Integration;
Effectiveness; Electronic Execution. This Agreement and any amendments,
waivers, consents or supplements hereto may be executed in counterparts (and by
different parties hereto in different counterparts), each of which shall
constitute an original, but all taken together shall constitute a single
contract. This Agreement and the other Transaction Documents, and any separate
letter agreements with respect to fees payable to Lender, constitute the entire
contract among the parties with respect to the subject matter hereof and
supersede all previous agreements and understandings, oral or written, with
respect thereto. This Agreement shall become effective when Lender shall have
received counterparts hereof that together bear the signatures of each of the
other parties hereto. Delivery of an executed counterpart of a signature page to
this Agreement by facsimile or in electronic (i.e., pdt or tif) format shall
be effective as delivery of a manually executed counterpart of this Agreement.
Section 6.07 Governing Law; Jurisdiction; Etc.
(a) Governing Law. This Agreement and any claim,
controversy, dispute or cause of action (whether in contract or tort or
otherwise) based upon, arising out of or relating to this Agreement and the
transactions contemplated hereby shall be governed by, and construed in
accordance with, the laws of the State of Delaware.
(b) Submission to Jurisdiction. Guarantor irrevocably
and unconditionally agrees that it will not commence any action, litigation or
proceeding of any kind whatsoever, whether in law or equity, or whether in
contract or tort or otherwise, against Lender, or any of their Related Parties
in any way relating to this Agreement or the transactions contemplated hereby in
any forum other than the District Court of the State of Idaho and the Federal
courts of the United States of America located in the State of Idaho, and each
of the parties hereto irrevocably and unconditionally submits to the
jurisdiction of such courts and agrees that any such action, litigation or
proceeding may be brought in any such Idaho State court or, to the fullest
extent permitted by applicable law, in such federal court. Each of the parties
hereto agrees that a final judgment in any such action, litigation or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing herein or in any other
Transaction Document shall affect any right Lender may otherwise have to bring any action or proceeding relating to this
Agreement against Guarantor or its properties in the courts of any jurisdiction.
(c) Waiver of Venue. Guarantor irrevocably and
unconditionally waives, to the fullest extent permitted by applicable law, any
objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court referred to in clause (b) of this Section. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
applicable law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.
(d) Service of Process. Each party hereto irrevocably
consents to the service of process in the manner provided for notices in
Section 6.04 and agrees that nothing herein will affect the right of any
party hereto to serve process in any other manner permitted by applicable law.
Section 6.08 Waiver of Jury Trial. EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY RELATING TO THIS AGREEMENT OR ANY OTHER TRANSACTION
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY. EACH PARTY HERETO (A) CERTIFIES THAT NO
AGENT, ATTORNEY, REPRESENTATIVE OR ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT SEEK TO ENFORCE THE FOREGOING
WAIVER IN THE EVENT OF LITIGATION, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER
TRANSACTION DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
GUARANTOR: |
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REVETT SILVER COMPANY |
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By: |
/s/
John Shanahan |
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Name:
John Shanahan |
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Title: President /Chief Executive Officer
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REVETT HOLDINGS, INC. |
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By: |
/s/
Paul Lammers |
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Name:
Paul Lammers |
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Title:
Director |
Accepted: |
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HECLA MINING COMPANY, as Lender |
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By: |
/s/ David Sienko |
Name: |
David
Sienko |
Title: |
Vice
President |
PLEDGE AGREEMENT
This PLEDGE AGREEMENT (this Agreement), dated as of
April 17, 2015, is between REVETT SILVER COMPANY, a Montana corporation (the
Grantor) and HECLA MINING COMPANY, a Delaware corporation (the
Lender).
PRELIMINARY STATEMENT. Revett Mining Company, Inc., a Delaware
corporation (the Borrower) has entered into that certain Term Loan and
Security Agreement dated as of April 17, 2015 (as from time to time amended,
restated, modified or supplemented, the Loan Agreement), among the
Borrower, the Grantor, Revett Holdings, Inc., a Montana corporation (Revett
Holdings) and the Lender. Each of the Grantor and Revett Holdings have
agreed to guaranty the obligations of the Borrower under the Loan Agreement. The
Grantor owns, directly, all of the issued and outstanding equity interest of
Revett Holdings as set forth on Schedule I and will benefit from the loan
and financial accommodations made available to the Borrower under the Loan
Agreement.
NOW, THEREFORE, in consideration of the premises and in order
to induce the Lenders to make the Loan and provide other financial
accommodations to the Borrower under the Loan Agreement, the Grantor hereby
agrees with the Lender as follows:
1. Grant of Security. The Grantor hereby
assigns and pledges and hereby grants to the Lender a security interest in, and
all of the right, title and interest of the Grantor in and to the following,
whether now owned or hereafter acquired (the Pledged
Collateral).
(A) Pledged Shares:
(i) All shares of stock, units of membership interest or other
certificated equity interests described on Schedule I (collectively, the
Pledged Shares) and issued to the Grantor, the certificates
representing the Pledged Shares, and all dividends, cash, instruments and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Pledged Shares;
(ii) All additional shares of stock, units of membership
interest or other certificated equity interests (collectively, the
Additional Pledged Shares) of the Borrower from time to time acquired
by the Grantor in any manner, and the certificates representing such Additional
Pledged Shares, and all dividends, cash, instruments and other property from
time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such Additional Pledged Shares; and
(B) All proceeds of any and all of the foregoing Pledged
Collateral described in clause (A) above, and any and all payments (in
any form whatsoever) made or due and payable to the Grantor from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Pledged Collateral by any governmental
body, authority, bureau or agency (or any Person acting under color of
governmental authority) and, to the extent not otherwise included, all payments
under any indemnity, warranty or guaranty, payable by reason of loss or damage
to or otherwise with respect to any of the foregoing Pledged Collateral (the
Proceeds).
2. Security for Obligations. This Agreement
and the Pledged Collateral hereunder secures the payment of (i) all Obligations
(as defined in the Guaranty) now or hereafter existing under the Guaranty and (ii) all
obligations of the Grantor and Borrower now or hereafter existing under this
Agreement, the Note (as defined in the Loan Agreement) and the Loan Agreement
(all such obligations of being referred to herein as the Secured
Obligations).
3. Representations and Warranties. The Grantor
represents and warrants as follows:
(A) The Pledged Shares pledged by the Grantor have been duly
authorized and validly issued and are fully paid and nonassessable. The Pledged
Shares pledged hereunder constitute the percentage of shares, membership
interests or other equity interests issued and outstanding of the Borrower set
forth opposite such Pledged Shares on Schedule I hereto, and, in each
case, there are no warrants, options or other rights to acquire any of the
capital stock, membership interest or other certificated equity interests of the
Borrower.
(B) The Grantor is the legal and beneficial owner of the
Pledged Collateral, free and clear of any lien, security interest, option,
charge or encumbrance except for the security interest created by this
Agreement. No effective financing statement or other instrument similar in
effect covering all or any part of the Pledged Collateral is on file in any
recording office, except such as may have been filed in favor of the Lender
relating to this Agreement.
(C) The pledge and delivery of the Pledged Shares pursuant to
this Agreement create a valid and perfected first priority security interest in
the Pledged Collateral, securing the payment of the Secured Obligations.
(D) No authorization, approval or other action by, and no
notice to or filing with any governmental authority or regulatory body is
required either (i) for the grant by the Grantor of the security interest
granted hereby or for the execution, delivery or performance of this Agreement
by the Grantor or (ii) for the perfection of or the exercise by the Lender of
its rights and remedies hereunder or for the exercise by the Lender of the
voting or other rights provided for in this Agreement or the remedies in respect
of the Pledged Collateral pledged by the Grantor pursuant to this Agreement
(except any filing in connection with judicial proceedings to enforce such
rights and remedies and except as may be required in connection with such
disposition by laws affecting the offering and sale of securities generally).
4. Further Assurances.
(A) The Grantor hereby agrees that from time to time, at the
expense of the Grantor, the Grantor will promptly execute and deliver all
further instruments and documents, and take all further action that the Lender
may reasonably request, in order to perfect and protect any security interest
granted or purported to be granted hereby or to enable the Lender to exercise
and enforce its right and remedies hereunder with respect to any Pledged
Collateral. The Grantor further agrees (i) to deliver all certificated
securities included in the Pledge Collateral to the Lender and (ii) all
certificated securities delivered by such Grantor pursuant to this Agreement
will be accompanied by duly executed undated blank stock powers, or other
equivalent instruments of transfer acceptable to the Lender.
(B) Upon the acquisition by the Grantor of any Additional
Pledged Shares, the Grantor shall deliver to the Lender an updated Schedule
I to this Agreement, as applicable, reflecting such change. Upon the
acceptance thereof by the Lender by written consent, Schedule I of this
Agreement shall be deemed to be so amended.
(C) The Grantor will furnish to the Lender from time to time a
statement identifying and describing the Pledged Collateral and such other
reports in connection with the Pledged Collateral pledged as the Lender may
reasonably request.
5. Voting Rights; Dividends. (A) So long as no
Event of Default shall have occurred and be continuing:
(i) The Grantor shall be entitled to (a) receive or retain cash
dividends distributed in respect of or in exchange for any or all of the Pledged
Shares or Additional Pledged Shares, to the extent permitted under this
Agreement and (b) exercise any and all voting and other consensual rights
pertaining to the Pledged Collateral or any part thereof owned by the Grantor
for any purpose not inconsistent with the terms of this Agreement;
provided, however, that the Grantor shall not exercise or refrain
from exercising any such right if such action or inaction could reasonably be
expected to have a Material Adverse Effect on the value of the Pledged
Collateral or any part thereof and
(ii) The Lender shall execute and deliver (or cause to be
executed and delivered) to the Grantor all such proxies and other instruments as
the Grantor may reasonably request for the purpose of enabling the Grantor to
exercise the voting and other rights the Grantor is entitled to exercise
pursuant to paragraph (i) above.
(B) Upon the occurrence of an Event of Default which is
continuing, all rights of the Grantor to receive dividends or to exercise the
voting and other consensual rights that the Grantor would otherwise be entitled
to exercise pursuant to Section 5(A)(i) shall cease, and all such rights
shall thereupon become vested in the Lender who shall thereupon have the sole
right to exercise such voting and other consensual rights.
6. Transfers and Other Liens; Additional
Shares.
(A) As long as the Secured Obligations remain outstanding, the
Grantor shall not:
(i) Sell, assign (by operation of law or otherwise) or
otherwise dispose of any of the Pledged Collateral.
(ii) Create or suffer to exist any lien, security interest or
other charge or encumbrance upon or with respect to any of the Pledged
Collateral to secure Indebtedness of any person or entity, except for the
security interest created by this Agreement.
(B) The Grantor will (i) not consent to the issuance of any
shares of stock, units of membership interest, securities, warrants, options or
other acquisition rights in addition to or in substitution for the Pledged
Shares issued by the Borrower, other than an issuance made to the Grantor and
(ii) pledge hereunder, immediately upon the Grantors acquisition (directly or
indirectly) thereof, any and all additional shares of stock, units of membership
interest or other securities, warrants, options or other acquisition rights of
the Borrower.
7. Appointment as Attorney-in-Fact.
(A) The Lender shall hereby have the right and the Grantor
hereby irrevocably make, constitute, and appoint the Lender (and all officers,
employees, or agents designated by the Lender) as their true and lawful
attorney-in-fact and agent, with full power of substitution, to, from time to time for the purpose of carrying
out the terms of this Agreement to the extent permitted by applicable law, to
take any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of
this Agreement, and, without limiting the generality of the foregoing, hereby
give the Lender, subject to the other terms of this Agreement, the power and
right, on behalf of the Grantor, without notice to or assent by the Grantor to
do the following:
(i) to pay or discharge taxes, liens, security interests or
other encumbrances levied or placed on or threatened against the Pledged
Collateral which are not permitted by the terms hereof;
(ii) to receive payment of and receipt for any and all moneys,
claims and other amounts due or to become due at any time in respect of or
arising out of any Pledged Collateral; and
(iii) to (a) commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent jurisdiction and to
collect the Pledged Collateral or any Proceeds thereof and to enforce any other
right in respect of any Pledged Collateral; (b) defend any suit, action or
proceeding brought against the Grantor with respect to any Pledged Collateral;
(c) settle, compromise or adjust any suit, action or proceeding described above
and, in connection therewith, to give such discharges or releases as the Lender
may deem appropriate; and (d) except to the extent prohibited by law, generally
sell, transfer, pledge, make any agreement with respect to or otherwise deal
with any of the Pledged Collateral as fully and completely as though the Lender
were the absolute owner thereof for all purposes, and (e) to do, at the Lenders
option and the Grantors expense, at any time, or from time to time, all acts
and things which the Lender reasonably deems necessary to protect, preserve or
realize upon the Pledged Collateral and Lenders security interest therein, in
order to effect the intent of this Agreement, all as fully and effectively as
the Grantor might do.
The Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof and in accordance herewith.
This power of attorney is a power coupled with an interest and shall be
irrevocable.
(B) The Grantor also authorizes the Lender, at any time and
from time to time, to execute, in connection with any sale provided for in
Section 10 of this Agreement, any endorsements, assignments or other instruments
of conveyance or transfer with respect to the Pledged Collateral.
8. Lender May Perform. If the Grantor fails to
perform any agreement contained herein, the Lender may itself perform, or cause
performance of, such agreement, and the expenses of the Lender incurred in
connection therewith shall be payable by the Grantor under Section
11.
9. Duties of Lender. The powers conferred on
the Lender hereunder are solely to protect the Lenders interests in the Pledged
Collateral and shall not impose any duty upon it to exercise any such powers.
Except for the safe custody of any Pledged Collateral in its possession, the
Lender shall not have any duty as to any Pledged Collateral or as to the taking
of any necessary steps to preserve rights against prior parties or any other
rights pertaining to any Pledged Collateral.
10. Remedies. If any Event of Default shall
have occurred and be continuing or the Obligations have become otherwise due and
payable upon the maturity thereof:
(A) the Lender may: (i) exercise in respect of the Pledged
Collateral, in addition to other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies of a secured party on
default under the Uniform Commercial Code (whether or not the Uniform Commercial
Code applies to the affected Pledged Collateral), (ii) exercise any and all
rights and remedies of the Grantor in respect of the Pledged Collateral, (iii)
manage and control the Pledged Collateral and do any acts which it deems
necessary or desirable to preserve the value or marketability of the Pledged
Collateral, or any part thereof or interest therein, all without prior notice to
the Grantor (except as specifically provided below with respect to a formal
public or private sale), and (iv) without notice (except as provided below),
sell the Pledged Collateral or any part thereof in one or more parcels at public
or private sale, at any of the Lenders offices or elsewhere, for cash, on
credit or for future delivery, and upon such other terms as the Lender may deem
commercially reasonable. After deducting the expense of preserving the Pledged
Collateral, including, without limitation, just and reasonable compensation for
its services and for all attorneys, counsel, agents, clerks, servants and other
employees by it engaged and employed, the Lender shall apply the moneys arising
as aforesaid to the Obligations pursuant to the provisions of the Loan
Agreement. The Grantor agrees that, to the extent that notice of sale shall be
required by applicable law, ten (10) Business Days notice to the Grantor of the
time and place of any public sale or the time after which any private sale is to
be made shall constitute reasonable notice. The Lender shall not be obligated to
make any sale of Pledged Collateral regardless of notice of sale having been
given. The Lender may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
(B) The Grantor recognizes and acknowledges that the Lender may
be unable to effect a public sale of all or a part of the Pledged Collateral by
reason of certain prohibitions contained in the Securities Act of 1933, as
amended, as now or hereafter in effect, or in applicable Blue Sky or other state
securities laws, as now or hereafter in effect, but may be compelled to resort
to one or more private sales to a restricted group of purchasers who will be
obliged to agree, among other things, to acquire such Pledged Collateral for
their own account, for investment and not with a view to the distribution or
resale thereof. The Grantor agrees that private sales so made may be at prices
and other terms less favorable to the seller than if such Pledged Collateral
were sold at public sales, and that the Lender has no obligation to delay sale
of any such Pledged Collateral for the period of time necessary to permit the
Grantor, even if the Grantor would agree, to register such collateral for public
sale under such applicable securities laws. The Grantor agrees that private
sales made under the foregoing circumstances shall not be deemed to have been
made in a commercially unreasonable manner by that fact alone.
(C) All payments received by the Grantor under or in connection
with any Pledged Collateral shall be received in trust for the benefit of the
Lender, shall be segregated from other funds of the Grantor and shall be
forthwith paid over to the Lender in the same form as so received (with any
necessary endorsement).
(D) All payments made under or in connection with any Pledged
Collateral and all cash proceeds received by the Lender in respect of any sale
of, collection from, or other realization upon all or any part of the Pledged
Collateral shall be applied (after payment of any amounts payable to the Lender
pursuant to Section 11) by the Lender against the Secured Obligations
pursuant to the Guaranty. Any surplus of such cash or cash proceeds held by the
Lender and remaining after payment in full in cash of all the
Secured Obligations shall be paid over to the Grantor or to whomsoever may be
lawfully entitled to receive such surplus.
11. Indemnity and Expenses.
(A) The Grantor agrees to jointly and severally indemnify the
Lender from and against any and all claims, losses and liabilities growing out
of or resulting from this Agreement (including, without limitation, enforcement
of this Agreement), except claims, losses or liabilities resulting from Lenders
gross negligence or willful misconduct.
(B) The Grantor will upon demand pay to the Lender the amount
of any and all expenses, including attorneys fees and fees of any experts and
agents, which the Lender may incur in connection with (i) the sale of,
collection from, or other realization upon, any of the Pledged Collateral, as
provided for herein, (ii) the exercise or enforcement of any of the rights of
the Lender hereunder or (iii) the failure by the Grantor to perform or observe
any of the provisions hereof. All obligations of Grantor under this Agreement,
including, without limitation, this Section 11(B) are joint and several.
12. Security Interest Absolute. All rights of
the Lender and security interests hereunder, and all obligations of the Grantor
hereunder, shall be absolute and unconditional, irrespective of:
(A) any lack of validity or enforceability of the Loan
Agreement, the Guaranty, any other Transaction Documents or any other agreement
or instrument evidencing all or any part of the Secured Obligations;
(B) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Secured Obligations or any other
amendment or waiver of or any consent to any departure from the Loan Agreement,
the Guaranty or any other Transaction Document;
(C) the absence of any attempt to collect the Secured
Obligations from any guarantor or other action to enforce the same;
(D) the waiver or consent by the Lender with respect to any
provision of any instrument evidencing the Secured Obligations, or any part
thereof, or any other agreement now or hereafter executed by the Grantor and
delivered to the Lender;
(E) failure by the Lender to take any steps to perfect and
maintain its security interest in, or preserve its rights to, any security or
collateral for the Secured Obligations;
(F) the Lenders election in any proceeding instituted under
Chapter 11 of Title 11 of the United States Code (11 U.S.C. §101 et seq.) (the
Bankruptcy Code), of the application of Section 1111(b)(2) of the Bankruptcy
Code;
(G) any borrowing or grant of a security interest under Section
364 of the Bankruptcy Code;
(H) any exchange, release or non-perfection of any other
collateral; or
(I) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Grantor.
13. Waiver. Except as otherwise expressly
required by the terms hereof, the Grantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of receivership or
bankruptcy of the Grantor, protest or notice with respect to the Secured
Obligations and all demands whatsoever, and covenants that this Agreement will
not be discharged, except by complete performance of the Secured Obligations
contained herein. Upon any Event of Default, as provided in the Loan Agreement,
the Guaranty, any other Transaction Document or any other instrument or document
evidencing all or any part of the Secured Obligations, the Lender may, at its
sole election, proceed directly and at once, without notice, against the Grantor
to recover, solely from the Pledged Collateral and to the extent provided under
Section 11, the full amount or any portion of the Secured
Obligations by exercising its rights provided in Section
10, without first proceeding against any other Person or against any
security or collateral for the Obligations. The Lender shall have the exclusive
right to determine the application of payments and credits, if any, from the
Grantor or from any other Person on account of the Secured Obligations or of any
other liability of the Grantor to the Lender.
14. Amendments. No amendment or waiver of any
provision of this Agreement nor consent to any departure by the Grantor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Lender, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
15. Notices. Any notice or notification
required permitted or contemplated hereunder shall be given in the manner, and
at the addresses, specified in the Loan Agreement.
16. Continuing Security Interest. This
Agreement shall create a continuing security interest in the Pledged Collateral
and shall (A) remain in full force and effect until the termination and payment
in cash in full of the Secured Obligations, (B) be binding upon the Grantor, the
Grantors successors and assigns and (C) inure, together with the rights and
remedies of the Lender hereunder, to the Lender and its respective successors,
transferees and assigns. Without limiting the generality of the foregoing clause
(C) the Lender may assign or otherwise transfer any instrument held by it under
this Agreement only to a person or entity to whom or to which the Secured
Obligations have been assigned, and such transferee shall thereupon become
vested with all the benefits in respect thereof granted to Lender hereunder. The
Lender may assign or otherwise transfer any instrument held by it to any other
person or entity, and such other person or entity shall thereupon become vested
with all the benefits in respect thereof granted to such assigning party,
whether herein or otherwise. Upon the termination of the Secured Obligations,
the security interest granted hereby shall terminate and all rights to the
Pledged Collateral shall revert to the Grantor. Upon any such termination, the
Lender will, at the Grantors expense, promptly return to the Grantor all
certificates representing any of the Pledged Collateral and execute and deliver
to the Grantor such documents as the Grantor shall reasonably request to
evidence such termination.
17. Subrogation. To the extent the Lender
exercises its rights under this Pledge Agreement, the Grantor shall be
subrogated to the rights of the Lender with respect to the right to collect the
Obligations due from the Borrower under the Loan Agreement; provided, that: (i) such subrogation shall only be effective
upon the Lenders receipt of full and indefeasible payment of such Obligations
and (ii) the Grantor waives the right of subrogation until such payment in full
has been received by the Lender.
18. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware,
except to the extent that the validity or perfection of the security interest
hereunder, or remedies hereunder, in respect of any particular Pledged
Collateral are governed by the laws of a jurisdiction other than the State of
Delaware.
19. Waiver of Jury Trial and Submission to Non-Exclusive
Jurisdiction. EACH OF THE PARTIES HERETO WAIVE ANY RIGHT TO HAVE A
JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, AMONG THE PARTIES OR ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO. Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the District Court of the State of
Idaho and the Federal courts of the United States of America located in the
State of Idaho, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any such
state court or, to the extent permitted by law, in such federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement in the courts of any jurisdiction.
The Grantor hereby waives personal service of any and all
process upon it and consents that all such service of process may be made by
registered mail (return receipt requested) directed to the Grantor at its
address set forth in Section 15 above and service so made shall be deemed
completed five (5) days after the same shall have been so deposited in the mails
of the United States. Nothing herein shall affect the right to serve process in
any manner permitted by law or shall limit the right of the Lender to bring
proceedings against the Grantor in then the courts of any other jurisdiction.
Each of the parties hereto hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any other Transaction Document in any Idaho state or federal court sitting in
the State of Idaho. Each of the parties hereto hereby waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court. The parties confirm that the
foregoing waivers are informed and freely made.
20. Defined Terms. Capitalized terms used
herein but not otherwise defined have the meanings attributed to them in the
Loan Agreement. Terms not otherwise defined herein or in the Loan Agreement but
defined in the Article 9 of the Delaware Uniform Commercial Code are used herein
as defined therein.
IN WITNESS WHEREOF, the Grantor has duly executed and delivered
this Agreement as of the date first above
REVETT SILVER COMPANY, as Grantor |
|
|
By: /s/ John
Shanahan |
Name: John
Shanahan |
Title: President /
Chief Executive Officer |
Accepted and agreed, |
as of the date first above written. |
|
HECLA MINING COMPANY, as Lender |
|
By: /s/ David
Sienko |
Name: David Sienko
|
Title: Vice
President |
SCHEDULE I
Pledge Agreement
Pledged Shares Owned and
Pledged by the Grantor
Stock
Grantor |
Issuer |
Number of |
Class of |
Certificate |
% of Shares |
|
|
Shares |
Stock |
No(s.) |
Outstanding |
|
|
|
|
|
|
Revett Silver |
Revett |
100 |
Common |
1 |
100% |
Company |
Holdings, |
|
|
|
|
|
Inc. |
|
|
|
|
SCHEDULE 1.5
REVETT HOLDINGS
PROPERTY
(See attached)
Revett Mining Company, Inc. (AMEX:RVM)
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From Aug 2024 to Sep 2024
Revett Mining Company, Inc. (AMEX:RVM)
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From Sep 2023 to Sep 2024