EXHIBIT 4.58
COAL PURCHASE AND FINANCING AMENDING AGREEMENT
THIS AGREEMENT dated as of the 15th of September, 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:
MARUBENI CORPORATION, a corporation incorporated under the laws of Japan
and having a business office at 0-0, 0 Xxxxx, Xxxxxxx-Xx, Xxxxx, Xxxxx
("MARUBENI")
WHEREAS:
A. Pine Valley, Falls Mountain, PVC and Marubeni are the parties to Coal
Purchase and Financing Agreement dated as of May 18, 2004 (the "CPF Agreement");
and
B. Pine Valley, Falls Mountain, PVC and Marubeni now wish to amend a certain
provision of the CPF Agreement on the basis set out in this Agreement to
accommodate changes in the timing of Draw Requests against the loan facility
that Marubeni has made available to Falls Mountain under the CPF Agreement;
NOW THEREFORE, IN CONSIDERATION of the covenants and agreement; in this
Agreement, the receipt and sufficiency of which is hereby acknowledge and
accepted, the Parties agree as follows:
1. INTERPRETATION
1.1 DEFINED TERMS
To the extent that it is used herein, the term "Agreement" means this agreement
including any recitals and Schedules to this agreement, as amended. supplemented
or restated from time to time. The capitalized terms used in this Agreement and
not otherwise defined herein will have the meanings given to them in the CPF
Agreement.
1.2 RULES OF INTERPRETATION
This Agreement and each of the documents contemplated by or delivered under or
in connection with this Agreement will be interpreted in accordance with the
rules of interpretation provided for under the CPF Agreement.
2. AMENDMENT
Section 7.2 of the CPF Agreement is deleted in its entirety and replaced with
the following:
7.2 LOAN ADVANCES
Marubeni will advance US$1,000,000 of the Loan at the Closing and the
balance of the Loan, from time to time, within three Business Days of the
receipt by Marubeni of a valid draw request (each a "DRAW REQUEST") from
Falls Mountain. A valid Draw Request will request funds in multiples of
US$100,000, be in writing and will Include the following information:
(a) the Budget items that Falls Mountain intends to fund with the
requested funds:
(b) the time period over which Falls Mountain expects the requested
funds will be expended: and
(c) confirmation that no Event of Default has occurred and is
continuing.
Falls Mountain will not issue a Draw Request unless the Loan proceeds it is
requesting are reasonably required by the Pine Valley Group fund the
expenditures contemplated under the Budget during the then-next thirty
days, including funds required for reasonable corporate overhead expenses
of the Pine Valley Group. A minimum of US$100,000 of the Loan principal
will not be subject to a Draw Request and will remain available to be
advanced until December 31, 2004.
Each of the Parties agrees that the CPF Agreement is in full force and effect,
unamended and unmodified save as amended by this Agreement, and that the CPF
Agreement and this Agreement will henceforth be read together.
3. GENERAL
3.1 COUNTERPARTS
This Agreement and all documents contemplated by or delivered under or
connection with this Agreement may be executed and delivered in any number of
counterpart is with the same effect as if all Parties had all signed and
delivered the same document and counterparts will be construed together to be an
original and will constitute one and the same agreement.
2
3.2 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.
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.
MARUBENI CORPORATION
Per: /s/ Xxxxx Xxxxx
--------------------------------
Authorized Signatory
I have authority to bind
MARUBENI CORPORATION
3
