Exhibit 4.10

 

 

Pursuant to 17 CFR 229.601(b)(2)(ii), confidential information (indicated by [***]) has been omitted from this exhibit because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed.


  Deed
   
Poplar Grove Coal Mine  
Amending Deed – Term facility agreement  

 

 

 

Hartshorne Mining Group, LLC. (as Borrower)

Paringa Resources Limited (as Parent)

Each party listed in Schedule 1 (as Guarantors)

Tribeca Global Resources Credit Pty Ltd (as Agent)

Global Loan Agency Services Australia Nominees Pty Ltd (as Security Trustee)

 

 

 
ANZ Tower 161 Castlereagh Street Sydney NSW 2000 Australia
GPO Box 4227 Sydney NSW 2001 Australia
T +61 2 9225 5000  F +61 2 9322 4000
herbertsmithfreehills.com  DX 361 Sydney


 

Contents

 

  Table of contents  
     
     
1 Definitions and interpretation 3
  1.1 Definitions 3
  1.2 Interpretation 3
  1.3 Incorporated definitions 3
  1.4 Finance Document 3
  1.5 Deed components 3
  1.6 Agent’s capacity 3
       
2 Amendment 3
  2.1 Amendment to Facility Agreement 3
  2.2 Amendments not to affect validity, rights, obligations 4
  2.3 Confirmation 4
  2.4 Guarantor acknowledgments 4
       
3 Representations and Warranties 4
     
4 General 4
     
  4.1 Notices 4
  4.2 Governing law and jurisdiction 5
  4.3 Further action 5
  4.4 Costs and expenses 5
  4.5 Stamp duty 5
  4.6 Counterparts 5
  4.7 Attorneys 5
       
Schedule 1  
     
  Guarantors   
     
Schedule 2  
     
Amendment to Facility Agreement  
     
Signing page 6

 

Herbert Smith Freehills owns the copyright in this document and using it without permission is strictly prohibited.


Amending Deed - Term facility agreement              Contents 1
 


 

Amending Deed - Term facility agreement


 

Date ►

 

Between the parties

2019
Borrower Hartshorne Mining Group, LLC
Parent

Paringa Resources Limited

 

ABN 44 155 933 010

Guarantors Each party listed in Schedule 1
Agent

Tribeca Global Resources Credit Pty Ltd

 

ABN 18 630 267 337

Security Trustee

Global Loan Agency Services Australia Nominees Pty Ltd

 

ACN 608 945 008

Recitals

1    The parties are party to the Facility Agreement.

 

2    The parties wish to amend the Facility Agreement in the manner set out in this deed.

This deed witnesses: that, for valuable consideration, the receipt and sufficiency of which is acknowledged, the parties agree as follows:  


Amending Deed - Term facility agreement              page 2
 

 

1 Definitions and interpretation

 

1.1 Definitions

 

The meanings of the terms used in this document are set out below.

 

Term Meaning
Effective Date the date of this deed.
Facility Agreement the document entitled ‘Term facility agreement’ dated 24 April 2019 between, among others, the Borrower, the Parent, each Guarantor, the Agent and the Security Trustee.

 

1.2 Interpretation

 

Clauses 1.3 (Interpretation), 1.4 (Inclusive expressions), 1.5 (Business Day), 1.9 (Security Trust Deed) and 1.10 (Capacity of Security Trustee) of the Facility Agreement apply to this deed as if set out in full in this deed, with any necessary changes, including as if references in those clauses to ‘this agreement’ were to ‘this deed’.

 

1.3 Incorporated definitions

 

A word or phrase, other than one defined in clause 1.1, defined in the Facility Agreement has the same meaning when used in this deed.

 

1.4 Finance Document

 

This deed is a ‘Finance Document’ for the purpose of the Facility Agreement.

 

1.5 Deed components

 

This deed includes any schedule.

 

1.6 Agent’s capacity

 

The Agent enters into this deed in its capacity as agent under the Finance Documents and on behalf of the Original Lenders in accordance with clause 21.7(b) (Variation) of the Facility Agreement.

 

2 Amendment

 

2.1 Amendment to Facility Agreement

 

(a) The Facility Agreement is amended as set out in Schedule 2.

 

Amending Deed - Term facility agreement              page 3


 

 

(b) The amendments to the Facility Agreement take effect on and from the Effective Date and any reference to the Facility Agreement (however defined) in any Finance Document (except for this deed) is to be read as referring to the Facility Agreement as amended by this deed.

 

2.2 Amendments not to affect validity, rights, obligations

 

(a) This deed is intended only to vary the Facility Agreement and not to terminate, discharge, rescind, replace or restate it.

 

(b) The amendments to the Facility Agreement in clause 2.1 do not affect the validity or enforceability of the Facility Agreement or any other Finance Document.

 

(c) Nothing in this deed:

 

(1) prejudices or adversely affects any right, power, authority, discretion or remedy arising under the Facility Agreement or any other Finance Document before the Effective Date; or

 

(2) discharges, releases or otherwise affects any liability or obligation arising under the Facility Agreement or any other Finance Document before the Effective Date.

 

2.3 Confirmation

 

(a) On and with effect from the Effective Date, each party is bound by the Facility Agreement as amended by this deed.

 

(b) Each party acknowledges and agrees that this deed is a ‘Finance Document’ as defined in, and for all purposes under, the Facility Agreement.

 

2.4 Guarantor acknowledgments

 

Each Guarantor confirms that its obligations under its Guarantee in the Facility Agreement continue to apply despite the amendments contemplated or effected by this deed.

 

3 Representations and Warranties

 

The Borrower and each Guarantor represents and warrants that each Repeating Representation given by it in the Facility Agreement is true in respect of the facts and circumstances subsisting as at the date of this deed.

 

4 General

 

4.1 Notices

 

A notice given under this deed must be given in accordance with clause 21.3 (Notices) of the Facility Agreement.

 

Amending Deed - Term facility agreement              page 4


 

 

4.2 Governing law and jurisdiction

 

The governing law and dispute resolution provision set forth in clause 21.4 (Governing law and jurisdiction) of the Facility Agreement apply to this deed as if set out in full in this deed and as if references in those clauses to ‘this agreement’ were to ‘this deed’.

 

4.3 Further action

 

Each party must do all things and execute all further documents necessary to give full effect to this deed and the transactions contemplated by it.

 

4.4 Costs and expenses

 

The Borrower must pay all reasonable costs and expenses of the Finance Parties in relation to the negotiation, preparation, execution, delivery, stamping and completion of this deed.

 

4.5 Stamp duty

 

The Borrower must pay any stamp duty or similar Tax which is payable in connection with the execution or performance of this deed.

 

4.6 Counterparts

 

(a) This deed may be executed in any number of counterparts.

 

(b) All counterparts, taken together, constitute one instrument.

 

(c) A party may execute this deed by signing any counterpart.

 

4.7 Attorneys

 

Each of the attorneys executing this deed states that the attorney has no notice of the revocation of the power of attorney appointing that attorney.

 

Amending Deed - Term facility agreement              page 5


 

Signing page

 

Executed as a deed

 

  Borrower
   
 

Signed sealed and delivered by

Hartshorne Mining Group, LLC

 
     
sign here /s/ Gregory Swan    
  Authorised representative    
       
print name Gregory Swan    

 

  Parent and Guarantor    
       
 

Signed sealed and delivered by

Paringa Resources Limited

by its attorney

  in the presence of
       
sign here /s/ Gregory Swan  sign here /s/ Dylan Browne
  Attorney   Witness
       
print name Gregory Swan  print name Dylan Browne

 

  Guarantor
   
 

Signed sealed and delivered by

Hartshorne Coal Mining Pty Ltd

by its attorney

  in the presence of
       
sign here /s/ Gregory Swan  sign here /s/ Dylan Browne
  Attorney   Witness
       
print name Gregory Swan  print name Dylan Browne

 


 

  Guarantor
   
 

Signed sealed and delivered by

HCM Resources Pty Ltd

by its attorney

  in the presence of
       
sign here /s/ Gregory Swan  sign here /s/ Dylan Browne
  Attorney   Witness
       
print name Gregory Swan  print name Dylan Browne

 

  Guarantor
   
 

Signed sealed and delivered by

Hartshorne Holdings, LLC

 
     
sign here /s/ Gregory Swan    
  Authorised representative    
       
print name Gregory Swan    

 

  Guarantor
   
 

Signed sealed and delivered by

Hartshorne Land, LLC

 
     
sign here /s/ Gregory Swan    
  Authorised representative    
       
print name Gregory Swan    

 

  Guarantor
   
 

Signed sealed and delivered by

Hartshorne Mining, LLC

 
     
sign here /s/ Gregory Swan    
  Authorised representative    
       
print name Gregory Swan    

 


 

 

  Agent
   
 

Signed sealed and delivered by

Tribeca Global Resources Credit Pty Ltd

by

 
     
sign here /s/ Margot Branson  sign here /s/ Haydn Smith
  Company Secretary   Director
       
print name Margot Branson  print name Haydn Smith

 


 

 

  Security Trustee
   
 

Signed sealed and delivered for

Global Loan Agency Services Australia Nominees Pty Ltd

by its attorney under power of attorney dated 1 May 2018

  in the presence of
       
sign here /s/ Deborah Macdonald  sign here /s/ Kate White
  Attorney   Witness
       
print name Deborah Macdonald  print name Kate White