EXHIBIT 4.54
AMENDMENT NO. 2 TO CREDIT FACILITY AGREEMENT
THIS AGREEMENT dated as of the 16th day of September, 2005
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 and
amended on December 22, 2004 (the "Amendment") 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 further 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.
2. AMENDMENTS TO CREDIT FACILITY AGREEMENT
2.1 AMENDMENT TO SECTION 2.2
Section 2.2 of the Credit Facility Agreement is hereby deleted in its entirety
and replaced with the following new Section 2.2:
Subject to adjustment in accordance with Section 2.4, the outstanding principal
amount of the Credit Facility will bear simple interest at an annual interest
rate of 10% ("INTEREST"), except that during the Extension Period the
outstanding principal amount of the Credit Facility will bear simple interest at
an annual interest rate of 12% (also "INTEREST"). The amount of Interest accrued
on the outstanding principal amount of the Credit Facility each month will be
paid by Falls Mountain to Rockside in arrears on the last Business Day of each
month.
2.2 AMENDMENT TO SECTION 2.3
Section 2.3 of the Credit Facility Agreement is hereby deleted in its entirety
and replaced with the following new Section 2.3:
Subject to the early repayment provisions in Sections 2.5 and 2.7, Falls
Mountain hereby agrees to pay to Rockside the entire outstanding amount of the
Credit Facility and any and all accrued and unpaid Interest on or before
February 6, 2006. The period between November 29, 2005 and February 6, 2006 is
herein called the EXTENSION PERIOD.
2.3 AMENDMENT TO SECTION 2.7
Section 2.7 of the Credit Facility Agreement is hereby deleted in its entirety
and replaced with the following new Section 2.7:
If the Pine Valley Group sells, assigns or transfers to a third party an
interest of greater than 50% of the Willow Creek Project or obtains debt
financing in an amount sufficient to permit it to do so, then the Pine Valley
Group will make it a condition of any such transaction that the outstanding
principal amount of the Credit Facility and accrued Interest will be repaid in
full out of the transaction proceeds, subject to any provisions of the credit
agreement between the Pine Valley Group and the Royal Bank of Canada ("RBC")
dated September 8, 2005 which would prohibit the Pine Valley Group from making
such repayment without RBC's consent.
2.4 AMENDMENT TO SECTION 4.1
Section 4.1 of the Credit Facility Agreement is hereby deleted in its entirety
and replaced with the following new Section 4.1:
Falls Mountain's obligation to repay the Credit Facility and the Interest will
be secured by the Falls Mountain Security Agreement, and the security interests
arising thereunder (the "SECURITY") will:
(a) rank subsequent in priority and be subordinate in all respects to:
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(i) the security interests presently held by Marubeni and arising
under a General Security Agreement made May 13, 2004 between
Falls Mountain and PVC as debtors and Marubeni; and
(ii) any security interests granted by the Pine Valley Group to any
institutional lender of the Pine Valley Group's choice at any
time in the future;
(b) be subject to the security interests to be granted to RBC in certain
collateral, in accordance with the terms of the Intercreditor
Agreement between RBC and Rockside dated September 8, 2005.
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 and the Amendment remain in full force and effect
except as expressly amended by this Agreement. This Agreement will be read
together with the Credit Facility Agreement and the Amendment 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.
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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.
PINE VALLEY MINING CORPORATION
Per: /s/ Xxxxxx Rip
--------------------------------
Authorized Signatory
I have authority to bind
PINE VALLEY MINING CORPORATION
FALLS MOUNTAIN COAL INC.
Per: /s/ Xxxxxx Rip
--------------------------------
Authorized Signatory
I have authority to bind
FALLS MOUNTAIN COAL INC.
PINE VALLEY COAL LTD.
Per: /s/ Xxxxxx Rip
--------------------------------
Authorized Signatory
I have authority to bind
PINE VALLEY COAL LTD.
THE ROCKSIDE FOUNDATION
Per: /s/ Xxxxxxx X. Xxxx
--------------------------------
Authorized Signatory
I have authority to bind
THE ROCKSIDE FOUNDATION
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