EXHIBIT 4.51
AMENDMENT NO. 1 TO CREDIT FACILITY AGREEMENT
THIS AGREEMENT dated as of the 22nd day of December, 2004
BETWEEN:
PINE VALLEY MINING CORPORATION, a company incorporated under the laws
of British Columbia having its registered office at Suite 3000 - 0000
Xxxx Xxxxxxx Xxxxxx Xxxxxxxxx, XX X0X 0X0 ("PINE VALLEY")
AND:
FALLS MOUNTAIN COAL INC., a company incorporated under the laws of
British Columbia having its registered office at Suite 3000 - 0000
Xxxx Xxxxxxx Xxxxxx Xxxxxxxxx, XX X0X 0X0 ("FALLS MOUNTAIN")
AND:
PINE VALLEY COAL LTD., an Alberta corporation having its principal
business office at Suite 000 - 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX X0X
0X0 ("PVC")
AND:
THE ROCKSIDE FOUNDATION, an Ohio non-profit corporation having an
office at 000 Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxx, XX 00000-0000
("ROCKSIDE")
WHEREAS:
A. Pine Valley, Falls Mountain, PVC and Rockside have entered into a Credit
Facility Agreement (the "Credit Facility Agreement") dated November 26, 2004
whereby Rockside agreed to make certain credit facilities available to Falls
Mountain.
B. Subject to receipt of all necessary regulatory approvals as herein described,
the Parties now wish to amend the Credit Facility Agreement on the terms and
conditions set out in herein.
NOW THEREFORE, IN CONSIDERATION of the covenants and agreements in this
Agreement, the Parties agree as follows:
1. DEFINED TERMS
In this Agreement, all capitalized terms will have the meaning given to them in
the Credit Facility Agreement unless otherwise defined herein.
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2. AMENDMENTS TO CREDIT FACILITY AGREEMENT
2.1 AMENDMENT TO SECTION 1.1
Sections 1.1(v) and (w) are hereby deleted in their entirety and replaced with
the following new Sections 1.1(v) and (w):
"(v) "TRANCHE NO. 2" means the second advance in the principal amount of
$5,100,000 referred to in Section 2.1;
(w) [Intentionally left blank];"
Section 1.1(j) is hereby amended by adding the word "or" following "Tranche No.
1" and deleting the words "or Tranche No. 3" therefrom.
2.2 AMENDMENT TO SECTION 2.1
Section 2.1 of the Credit Facility Agreement is hereby deleted in its entirety
and replaced with the following new Section 2.1:
"Subject to the terms and conditions of this Agreement, Rockside hereby
establishes for Falls Mountain the following credit facility:
(a) Tranche No. 1 in the principal amount of $3,750,000, to be advanced on
the Closing Date; and
(b) Tranche No. 2 in the principal amount of $5,100,000, to be advanced
between December 27, 2004 and January 7, 2005.
provided that Rockside will only advance Tranche No. 2 at the sole option
of, and if requested to so by, Falls Mountain, and nothing herein will
obligate any of the Pine Valley Group to draw down any of the Credit
Facility except for Tranche No. 1. If it elects to do so, Falls MOUNTAIN
will request the advance of Tranche No. 2 by delivering not less than 7
days' written notice to Rockside. All advances will be made by Rockside by
wire transfer to such account as Falls Mountain may designate."
2.3 AMENDMENT TO SECTION 6
Section 6 of the Credit Facility Agreement is hereby deleted in its entirety and
replaced with the following new Section 6:
"Pine Valley will issue to Rockside as additional consideration for the
Credit Facility, a bonus payment equal to that number of common shares in
the capital of Pine Valley having a Market Value equivalent to:
(a) 10% of the principal amount of Tranche No. 1, to be issued as soon as
is reasonably practicable after the advance of Tranche No. 1 (the "CLOSING
DATE BONUS SHARES"). Tranche No. 1 will be converted into Canadian Dollars
at the
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exchange rate published by the Bank of Canada at the close of business on
the day immediately preceding the date of such advance; and
(b) up to 10% of the principal amount of Tranche No. 2, which bonus shares
will vest and become eligible for issuance only in accordance with the
following schedule:
PERCENTAGE OF THEN OUTSTANDING PRINCIPAL
AMOUNT OF TRANCHE NO. 2 USED TO CALCULATE
BONUS SHARES VESTING DATE NO. OF BONUS SHARES
------------------------- -----------------------------------------
Date of advance of Tranche No. 2 1%
January 31, 2005 1%
March 7, 2005 1%
April 11, 2005 1%
May 16, 2005 1%
June 20, 2005 1%
July 25, 2005 1%
August 29, 2005 1%
October 3, 2005 1%
November 7, 2005 1%
The bonus shares referred to in this Section 6(b) will vest and become
eligible for issuance to Rockside only if the principal amount of Tranche
No. 2 or any part thereof remains outstanding at the applicable bonus
shares vesting date referred to above. For greater certainty the bonus
shares referred to in this Section 6(b) will be calculated only on the
basis of the outstanding amount of Tranche No. 2 at the time of the
applicable bonus shares vesting date described above. If the principal
amount of Tranche No. 2 is repaid in full prior to the expiration of the
applicable bonus shares vesting date, Rockside will no longer have any
rights to acquire the remaining bonus shares. Tranche No. 2 will be
converted into Canadian Dollars at the exchange rate published by the Bank
of Canada at the close of business on the day immediately preceding the
date of such advance.
Any repayments by the Pine Valley Group to Rockside in accordance with the
terms of this Agreement will be applied first to the outstanding principal
amount of Tranche No. 2 until it is repaid in its entirety and then to the
outstanding principal amount of Tranche No. 1."
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3. SUBJECT TO REGULATORY APPROVAL
This Agreement is subject to and will not become effective until the parties
have received all necessary regulatory approvals, including the approval of the
TSX Venture Exchange.
4. GENERAL
4.1 FULL FORCE AND EFFECT
The Credit Facility Agreement remains in full force and effect except as
expressly amended by this Agreement. This Agreement will be read together with
the Credit Facility Agreement and will be included in the definition of
Agreement in the Credit Facility Agreement.
4.2 GOVERNING LAW
This Agreement will be governed exclusively by, and is to be enforced, construed
and interpreted exclusively in accordance with, the laws of British Columbia and
the laws of Canada applicable in British Columbia which will be deemed to be the
proper law of this Agreement.
4.3 INDEPENDENT LEGAL ADVICE
Rockside acknowledges and agrees that the Pine Valley Group and their counsel,
Bull, Housser & Xxxxxx, have recommended that it obtain independent legal advice
with respect to the subject matter of this Agreement and Rockside hereby
represents and warrants to each of the Pine Valley Group and Bull, Housser &
Xxxxxx that Rockside has sought independent legal advice or waives such advice.
4.4 COUNTERPARTS
This Agreement and all documents contemplated by or delivered under or in
connection with this Agreement may be executed and delivered in any number of
counterparts with the same effect as if all Parties had all signed and delivered
the same document and all counterparts will be construed together to be an
original and will constitute one and the same agreement.
4.5 DELIVERY BY FAX
Any Party may deliver an executed copy of this Agreement by fax but that Party
will immediately dispatch by delivery in person to the other Parties an
originally executed copy of this Agreement.
IN WITNESS WHEREOF the Parties hereto have executed this Agreement the day and
year first above written.
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PINE VALLEY MINING CORPORATION
Per: /s/ Xxxxxxx X. Xxxx
--------------------------------
Authorized Signatory
I have authority to bind
PINE VALLEY MINING CORPORATION
FALLS MOUNTAIN COAL INC.
Per: /s/ Xxxxxx Xxxxxxxxx
--------------------------------
Authorized Signatory
I have authority to bind
FALLS MOUNTAIN COAL INC.
PINE VALLEY COAL LTD.
Per: /s/ Xxxxxx Xxxxxxxxx
--------------------------------
Authorized Signatory
I have authority to bind
PINE VALLEY COAL LTD.
THE ROCKSIDE FOUNDATION
Per: /s/ Xxxxxxx X. Xxxx
--------------------------------
Authorized Signatory
I have the authority to bind
THE ROCKSIDE FOUNDATION
