1   Macquarie Bank Limited ABN 46 008 583 542;

2   Old National Bank, provided that it has entered into an Account Bank Deed; or

3   any bank or financial institution approved by the Agent which has entered into an Account Bank Deed.

1   the Proceeds Account; and

2   the Operating Accounts.

a coal supply between American Electric Power (or an entity owned or controlled by American Electric Power) and the Borrower (or another Project Obligor) on terms and conditions satisfactory to the Agent (acting reasonably) and that provides:

1   that the Borrower or other Project Obligor will sell:

(a)        [***]kt during calendar year  2019 at a fixed price no less than $[***]/t; and

(b)        [***]kt during calendar year 2020 at a fixed price no less than $[***]/t; and

2   proposed Product specifications which are consistent with those achievable under the Life of Mine Plan and the pricing to be paid as described in paragraph 1 above reflects a required minimum delivered energy content of the Product coal of 11300btu.

the consolidated construction and operating budget for the Project in form and substance satisfactory to the Agent which:

1   is approved by the board of directors of the Borrower;

2   is to be provided initially in accordance with clause 2.1(m), as updated and amended from time to time as required under clause 10.5 and in accordance with clause 10.4(b)(1);

3   reflects the next calendar year and is broken down into monthly periods;

4   is based on the Resources and Reserves Statement;

5   sets out in detail the information and amounts described in the Life of Mine Plan and the Base Case Financial Model; and

6   prior to Completion, includes a detailed monthly Cost to Complete analysis and forecast schedule for the withdrawal of funds from the Proceeds Account.

The Lenders may in their discretion elect to accept receipt of the Annual Construction and Operating Budget as incorporated in, and part of, the Base Case Financial Model.

the corporate budget for the Parent and its consolidated group entities in form and substance satisfactory to the Agent which:

1   is approved by the board of directors of the Parent;

2   is to be provided initially in accordance with clause 2.1(l), as updated and amended from time to time as required under clause 10.5 and in accordance with clause 10.4(b)(1);

3   reflects the next calendar year and is broken down into monthly periods;

4   separates Australian and US expenditures; and

5   is consistent with the Annual Construction and Operating Budget, the Life of Mine Plan and the Base Case Financial Model.

The Lenders may in their discretion elect to accept receipt of the Annual Corporate Budget as incorporated in, and part of, the Base Case Financial Model.

means each of:

1   the ASX Listing Rules;

2   ASX Operating Rules;

3   ASX Clear Operating Rules; and

4   ASX Settlement Operating Rules,

each published and distributed by ASX Limited.

1   Paringa Resources Limited (ABN 44 155 933 010);

2   Hartshorne Coal Mining Pty Ltd (ABN 95 155 302 211); and

3   HCM Resources Pty Ltd (ABN 35 155 327 521).

1   any consent, registration, filing, agreement, notice of non-objection, notarisation, certificate, licence, approval, permit, authority or exemption; or

2   in relation to anything which a Government Agency may prohibit or restrict within a specific period, the expiry of that period without intervention or action or notice of intended intervention or action,

and includes any consent, registration, agreement, licence, approval, permit or authority which is described in the definitions of Project Tenement and Cypress Project Tenement.

funds available to the Borrower for the development of the Project and the achievement of Completion, being the aggregate of:

1   the aggregate of the Total Undrawn Tranche One Commitments and Total Undrawn Tranche Two Commitments at that time;

2   the balance in the Proceeds Account at that time;

3   the amount of any other funding source approved by the Agent;

4   any insurance proceeds payable to the Obligors in relation to loss or damage to property, delay in start-up or business interruption which has not been paid, provided the claim has been accepted by the insurer in writing and the Agent is satisfied (acting reasonably) that the claim will be paid on a fixed date and in time to meet scheduled Project Costs, Construction Costs and Financing Costs; and

5   (a)      subject to paragraph 5(b) below, any revenue amounts that are projected in the Base Case Financial Model to be received by the Borrower in respect of the Project prior to scheduled Date for Completion; and

6   is prepared using the Price Determination Mechanism;

7   provides for settlement of all payments under the Buck Creek Asset Purchase Agreements; and

8   is divided into monthly periods for the first year and quarterly periods for each subsequent year of the Project,

as updated and amended from time to time as required under clause 10.5 and in accordance with clause 10.4.

any capital requirements, leverage ratio, liquidity standards or other standards, rules or requirements under any of the following published by the Basel Committee on Banking Supervision (as amended, supplemented or restated):

1   ‘Basel III: A global regulatory framework for more resilient banks and banking systems’, ‘Basel III: International framework for liquidity risk measurement, standards and monitoring’ and ‘Guidance for national authorities operating the countercyclical capital buffer’, published in December 2010;

2   ‘Globally systematically important banks: assessment methodology and the additional loss absorbency requirement - Rules text’, published in November 2011; and

any further guidance standards relating to the above or known as Basel III.

subject to clause 4.9, the following rate determined as of 11.00am (London time) on any Rate Set Date in respect of a period equivalent (in the Agent’s opinion, without the need for instructions) to the Funding Period for the relevant Funding Portion:

1   the Screen Rate; or

2   if:

●   for any reason that rate is not displayed; or

●   the basis on which that rate is displayed is changed and a Lender instructs the Agent (after consultation with the Borrower) that in its opinion the rate ceases to reflect the Lender’s cost of funding to the same extent as at the date of this agreement and no new relevant page has been agreed between the parties,

then the Base Rate will be the rate determined by the Agent to be the average of the buying rates quoted to the Agent by 3 Reference Banks to leading banks in the London interbank market for the offering of deposits in Dollars with a term equivalent to the Funding Period at or about 11.00am on the Rate Set Date,

provided that if that rate is less than 0.50%, it shall be deemed to be 0.50%.

All calculations of rates for the purposes of this definition will be expressed as a yield percent per annum to maturity.

for any repayment or prepayment the amount (if any) by which:

1   the interest on the amount repaid or prepaid which a Lender should have received under this agreement (had the repayment or prepayment not occurred), exceeds:

2   the return which that Lender would be able to obtain by placing the amount repaid or prepaid to it on deposit with a Reference Bank,

in each case for the period from the date of repayment or prepayment until the last day of the then current Funding Period applicable to the repaid or prepaid amount.

1   the Asset Purchase Agreement in relation to the acquisition of the Project dated 28 March 2013, as amended pursuant to: (a) that certain Amendment to Asset Purchase Agreement dated 15 May 2015; and (b) that certain Second Amendment to Asset Purchase Agreement dated 10 April 2017, in each case by and among Buck Creek Resources, LLC, L. Stanley Pigman, Allan Adams, the Borrower, Hartshorne Mining, Hartshorne Land and Hartshorne Coal Mining Limited;

2   the Leasehold Mortgage, Security Agreement and Fixture Filing (Hopkins County) dated 28 March 2013, as amended pursuant to: (a) that certain Amendment to Leasehold Mortgage, Security Agreement and Fixture Filing (Hopkins County) dated 15 May 2015; and (b) that certain Second Amendment to Leasehold Mortgage, Security Agreement and Fixture Filing (Hopkins County) dated 10 April 2017, in each case by and between the Borrower, Hartshorne Mining, Hartshorne Land and Buck Creek Resources, LLC;

3   the Leasehold Mortgage, Security Agreement and Fixture Filing (McLean County) dated 28 March 2013, as amended and restated pursuant to: (a) that certain Amended and Restated Leasehold Mortgage, Security Agreement and Fixture Filing (McLean County) with an effective date of 15 May 2015; and (b) that certain Amendment to Amended and Restated Leasehold Mortgage, Security Agreement and Fixture Filing (McLean County) dated 10 April 2017, in each case by and between the Borrower, Hartshorne Mining, Hartshorne Land and Buck Creek Resources, LLC;

4   the Overriding Royalty Agreement dated 28 March 2013, as amended pursuant to: (a) that certain Amendment to Overriding Royalty Agreement dated 15 May 2015; and (b) that certain Second Amendment to Overriding Royalty Agreement dated 10 April 2017, in each case by and between Hartshorne Land and Buck Creek Resources, LLC;

5   the Reversionary Agreement dated 28 March 2013, as amended pursuant to: (a) that certain Amendment to Reversionary Agreement dated 15 May 2015; and (b) that certain Second Amendment to Reversionary Agreement dated 10 April 2017, in each case by and between Hartshorne Land and Buck Creek Resources, LLC;

6   the Promissory Note dated 28 March 2013, in the face principal amount of $9,770,967 (as amended from time to time), which was amended and restated by that certain Amended and Restated Promissory Note dated 15 May 2015, in the face principal amount of $12,000,000, which was further amended and restated by that certain Second Amended and Restated Promissory Note dated 10 April 2017, in the face principal amount of $3,750,000, in each case issued by the Borrower, Hartshorne Mining and Hartshorne Land to Buck Creek Resources, LLC;

7   the other “Related Agreements” (as defined in the document referred to in paragraph 1 of this definition); and

8   all other agreements relating to the acquisition of the Project and the Cypress Coal Mine to be determined during due diligence.

1   for the purposes of clause 21.3, a day on which banks are open for business in the city where the notice or other communication is received excluding a Saturday, Sunday or public holiday;

2   for the purposes of the definition of Rate Set Date, a day on which banks are open for business in New York and London excluding a Saturday, Sunday or public holiday; and

3   for all other purposes, a day on which banks are open for business in Sydney, Kentucky, New York and London excluding a Saturday, Sunday or public holiday.

in respect of any period, an amount equal to:

1    the aggregate amount of Revenues for that period; less

2    the aggregate amount of:

(a)   Project Costs; and

(b)   head office and discretionary expenditure in relation to the Project as detailed in the Life of Mine Plan and the Base Case Financial Model,

for that period.

any present or future law, regulation, treaty, order or official directive or request (which, if not having the force of law, would be complied with by a responsible financial institution) which:

1   is introduced, or changes, after the date of this agreement; and

2   does not relate to a change in the effective rate at which Tax is imposed on the overall net income of a Finance Party or to a FATCA Deduction required to be made by a party,

including any such law, regulation, treaty, order or official request relating to capital adequacy, prudential limits, liquidity, reserve asset, Tax or to any Basel III Requirement.

1   the acquisition, without the prior written consent of the Agent, by any person or a combination of persons acting jointly or in concert of more than 50% of the shares having ordinary voting power for the election of the directors of the Parent; or

2   more than a majority of the members of the board of directors of the Parent are changed within any consecutive 12 month period.

in respect of a Lender at any time, the aggregate of:

1   its Tranche One Commitment; and

2   its Tranche Two Commitment.

occurs when:

1   the Agent has received a certificate in form and substance satisfactory to it (acting reasonably) from the Lenders’ Technical Expert confirming that the technical components of the Completion Tests have been passed; and

2   the Agent confirms to the Borrower in writing that the Completion Tests have been passed (and the Agent agrees to issue such confirmation promptly after it determines (acting reasonably) that the financial components of the Completion Tests have been passed).

on any date, the aggregate of (without double counting):

1   Project Costs, Construction Costs and Financing Costs, and other fees, legal costs, contingencies and working capital requirements at that time payable but unpaid, in respect of services performed or assets purchased but in respect of which an invoice has not yet been received, in respect of services performed or assets purchased but in respect of which the invoice is not yet payable, or reasonably likely to be incurred by the Obligors from that date until and including the later of the Completion Date and the date on which the Project demonstrates positive CFADS each month consecutively for a 3 month period; and

2   the Minimum Proceeds Account Balance.

the schedule prepared by the Borrower:

1   to the extent it is being delivered in connection with a Funding Notice:

●   outlining the exact purpose for and amount of the proposed Funding Portion;

●   attaching all relevant invoices to be paid in respect of that Funding Portion;

2   outlining the amount of Construction Costs previously advised by the Lenders’ Technical Expert;

3   outlining the Cost to Complete at that date;

4   outlining the remaining amounts of Available Funding;

5   outlining the status of the development and construction of the Project relative to the Project Execution Plan;

6   outlining the Project Costs (other than Construction Costs) incurred to date; and

7   including an assessment of the likely timing for achieving: (a) the Completion Tests, and detailing any expected delay to the Date for Completion; and (b) the LGE/KU Project Milestones and the potential impact of any expected delay in achieving the LGE/KU Project Milestones.

1   the coal lease and sublease agreements and any other leases and licenses in respect of the Cypress Project Area including those listed in part A of part 2 of Schedule 10;

2   all entitlements of any Obligor to conduct exploration, prospecting, transporting, mining or processing activities with respect to the Cypress Project Area including under the Dock Agreement and all coal lease and sublease agreements and any other leases and licenses in respect of the Cypress Project Area;

3   any present or future interest from time to time held by or on behalf of any Obligor in any present or future right, lease, licence, claim, easement, permit or other authority which confers or may confer a right to prospect, transport or explore for or mine any metals or minerals in respect of the Cypress Project Area;

4   any present or future renewal, extension, modification, substitution, amalgamation or variation of any of the mineral and/or surface rights described above (whether extending over the same or a greater or lesser area); and

5   any present or future application for or an interest in any of the above which confers or which, when operated, will confer the same or similar rights in relation to the Cypress Project Area.

in relation to any Calculation Date on or after 31 December 2019, the ratio of:

1   CFADS for the Quarter ending on that Calculation Date; to

2   Senior Debt Service for the Quarter ending on that Calculation Date.

1   an Event of Default; or

2   a Potential Event of Default.

means the aggregate of the areas to which Hartshorne Land has rights under the terms of the Dock Agreement or otherwise in connection with the Dock including:

1   the easement for the conveyor belt from a coal mining complex to the dock facility;

2   the lease of the surface estate for the dock facility property; and

3   the lease of the property along the river bank for the riparian and fleeting rights,

located at milepost 61 on the Green River in McLean County, Kentucky, United States of America, which areas are delineated on the map in part B of Schedule 14.

the date on which:

1   the T1 Debt Date has occurred; and

1   an amount equal to the amount of the Funding Portion outstanding under Tranche Two has been withdrawn from the Proceeds Account and paid by the Borrower to the relevant counterparty or counterparties for any purpose set out in clause 3.3.

the following reports addressed to and able to be relied on by the Finance Parties in respect of the Project and, in each case, prepared in accordance with a scope of work agreed between the Borrower and the Agent:

1   the “Independent Technical Review of the Poplar Grove Mine” dated February 2017 and prepared by William G Meister;

2   the legal due diligence report dated 5 May 2018 and prepared by Wyatt, Tarrant & Combs, LLP; and

3   the “Market Study for Paringa’s .Poplar Grove Mine” dated February 2018 and prepared by Energy Ventures Analysis.

for any period, an amount equal to net income of the Obligors for such period minus, to the extent included in such net income (but without duplication):

1   interest revenues; and

2   any extraordinary, non-recurring or unusual income and gains (including, whether or not otherwise includable as a separate item in the calculation of net income, gains on sales outside of the ordinary course of business or on sale lease back transactions), of the Obligors plus, to the extent deducted from such net income (but without duplication):

3   Financing Costs;

4   income tax expense of the Obligors;

5   depreciation expense of the Obligors;

6   any extraordinary, non-recurring or unusual charges, expenses or losses incurred by the Obligors (or non-recurring charges, expenses or losses including, whether or not otherwise includable as a separate item in the calculation of net income, losses on sales outside of the ordinary course of business or on sale lease back transactions); and

7   compensation to employees, officers and directors of any Obligor paid in equity securities of an Obligor.

an interest or power:

1   reserved in or over an interest in any asset or property interest, including any retention of title; or

2   created or otherwise arising in or over any interest in any asset or property interest under a security agreement, bill of sale, mortgage, charge, lien, pledge, trust or power or any other agreement having similar effect,

by way of, or having similar commercial effect to, security for the payment of a debt, any other monetary obligation or the performance of any other obligation, and includes any agreement to grant or create any of the above and includes a security interest within the meaning of section 12(1) of the PPSA and a security interest within the meaning of Section 1-201(35) of the New York Uniform Commercial Code.

any actual or potential Loss incurred or which may be incurred in connection with:

1   the investigation or remediation;

2   a claim by any third party including a subsidence claim;

3   any action, order, declaration, notice, notice of violation, suit or abatement order by a Government Agency under an Environmental Law or Mining Law;

4   the Reclamation or alleged need for Reclamation of any future, current, former or abandoned areas affected by surface mining activities or other surface disturbance for which any Obligor is responsible under any Environmental Law or Mining Law; or

5   any agreement between an Obligor and any:

●   owner or occupier of land; or

●   Government Agency;

of or in respect of Reclamation, any Environmental Law or Mining Law, or Contamination of any Premises

each of the following plans relating to the environmental management and workplace health and safety of the Project:

1   the ‘Emergency Response Plan’ to be updated following transition from Part 77 (Construction Activities) to Part 75 (Underground Coal Mining) of the MSHA 30 CFR Mandatory Safety Standards;

2   work, health and safety procedure documents outlining responsibilities and processes in relation (but not limited) to the following activities:

●   work area inspections and hazard identification;

●   risk assessment and management training;

●   working around mobile equipment;

●   working at heights;

●   health and safety reporting and tracking; and

●   any other matter that the Agent (in consultation with the Lenders’ Technical Expert) may reasonably require; and

3   environmental management procedure documents outlining responsibilities and processes in relation (but not limited) to:

●   flood control levee;

●   stormwater monitoring;

●   air quality;

●   groundwater monitoring;

●   best management practices plan;

●   ground water protection plan;

●   environmental management reporting and tracking; and

●        any other matter that the Agent (in consultation with the Lenders’ Technical Expert) may reasonably require.

a Tax:

1    imposed on, or calculated having regard to, the net income of a Finance Party; or

2    imposed as a result of a Finance Party being a resident of, or organised or doing business in, the jurisdiction imposing the tax ,

3    imposed by way of deduction or withholding where such deduction or withholding arises as a result of a Finance Party who could lawfully avoid (but within 10 Business Days of receipt of a written request from an Obligor or the Agent to do so, has not so avoided) such deduction or withholding by complying with any statutory requirements in force at the present time or in the future to quote its name, address, Australian tax file number, Australian Business Number, tax identification number or similar details to an Obligor or the Agent,

but not a Tax:

4    calculated on or by reference to the gross amount of any payment (without allowance for any deduction) derived by a Finance Party under a Finance Document or any other document referred to in a Finance Document; or

5    imposed as a result of a Finance Party being considered a resident of or organised or doing business in that jurisdiction solely as a result of it being a party to a Finance Document or any transaction contemplated by a Finance Document.

1    in relation to the Options (First Issuance), has the meaning given to “Notice of Exercise” in the terms and conditions of the Options (First Issuance); and

7     any redeemable shares where the holder has the right, or the right in certain conditions, to require redemption;

8     receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis); or

9     Hedge Obligations;

10   any amount raised under any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this definition having the commercial effect of a borrowing;

11   Guarantee in respect of any of the items referred to above,

and irrespective of whether the debt or liability:

●         is present or future;

●         is actual, prospective, contingent or otherwise;

●         is at any time ascertained or unascertained;

●         is owed or incurred alone or severally or jointly or both with any other person; or

●         comprises any combination of the above.

in relation to an entity, the following financial statements and information in relation to the entity, prepared for its financial half year or financial year:

1     a statement of financial performance;

2     a statement of financial position; and

3     a statement of cashflows,

together with any notes to those documents and any accompanying reports, statements, declarations and other documents or information.

an event or occurrence which prevents performance in whole or part, provided such event is both:

1     beyond the reasonable control of the affected party; and

2     not the result of fault or negligence of the affected party,

which:

3     includes acts of God, war, terrorism, riots, civil insurrection, acts of the public enemy, strikes, lockouts, industry-wide labor shortages, labor disputes which cause work stoppages, industry-wide shortages of materials and supplies, fires, flood or earthquakes, and other similar or dissimilar events or occurrences that otherwise satisfy the definition of a Force Majeure Event and a ‘Force Majeure Occurrence’ (as defined in the Construction Contract); and

3     any other amounts treated as Financial Indebtedness or its equivalent in the Parent’s audited consolidated financial statements,

but excluding:

4     the marked-to-market exposure under any Hedge Arrangement; and

5     any obligations owed to another Obligor.

on any date on or after 31 December 2019, the ratio of:

1     Gross Debt on that date; to

2     EBITDA for the 6 calendar months prior to that date annualised.

1     the goods and services tax levied under the GST Act; and

2     any sale or use tax imposed by any state or local government in the United States of America.

any guarantee, suretyship, letter of credit, letter of comfort or any other obligation:

1     to provide funds (whether by the advance or payment of money, the purchase of or subscription for shares or other securities, the purchase of assets or services, or otherwise) for the payment or discharge of;

2     to indemnify any person against the consequences of default in the payment of; or

3     to be responsible for,

any debt or monetary liability of another person or the assumption of any responsibility or obligation in respect of the insolvency or the financial condition of any other person.

in respect of Hedge Arrangements, the aggregate (without duplication) at the relevant time, whether or not due at such time, of:

1     the net marked-to-market obligations under all Hedge Arrangements; and

2     the net amount owing or deliverable under all Hedging Arrangements.

1     in respect of the Options (First Issuance), the document titled ‘Issuer Sponsored Holding Statement as at 7 April 2017’ prepared by Computershare Investor Services Pty Limited and evidencing the issue of 4,444,444 American style call options in favour of the Original Lender; and

2     in respect of the Options (Second Issuance), any other document or statement prepared by Computershare Investor Services Pty Limited (or other entity performing a similar role or service) evidencing the issue of the Options (Second Issuance) in favour of the Original Lender.

the date on which an amount at least equal to the aggregate of:

1     the balance standing to the credit of the Proceeds Account immediately prior to the first drawdown under the Project Loan Facility less $3,000,000; and

2     the balance standing to the credit of the Operating Accounts immediately prior to the first drawdown under the Project Loan Facility,

has been paid by the Borrower to the relevant counterparty or counterparties on Construction Costs and Project Costs set out in the Base Case Financial Model (as verified by the Lenders’ Technical Expert).

the date on which each of the following has occurred under the LGE/KU Supply Agreement:

1     the Borrower has achieved the LGE/KU Supply Agreement Project Milestone #12 as set out in Exhibit A – Milestones to the LGE/KU Supply Agreement; and

2     the Borrower is producing Product from the Project Area in compliance with section 2.3 of the LGE/KU Supply Agreement.

a life of mine plan which provides a summary of the forecast construction and operation of the Project which:

1    is based on mining the Number 9 Seam;

2    is in form and substance satisfactory to the Agent;

3    is approved by the board of directors of the Borrower;

4    is based on the Resources and Reserves Statement, the Bank Feasibility Study and the Project Execution Plan;

5    is supported by appropriately detailed studies and evidence of availability and suitability of resources including power, water, labour and equipment;

6    includes the following details and forecasts:

–    capital expenditure schedules and drawdown requirements including Construction Costs;

–    mine plan and schedule for run of mine tonnes and saleable Product;

–    bypass, washing and key Product specification assumptions;

–    capital, production and Project Costs;

–    Reclamation schedule;

–    cash flow; and

–    Taxes, royalties, administration costs and expenses; and

7    is divided into monthly periods for the first year and Quarterly periods for each subsequent year of the Project,

as updated and amended from time to time as required under clause 8.1(f) and in accordance with clauses 10.4 and 10.5.

The Lenders may in their discretion elect to accept receipt of the Life of Mine Plan as incorporated in, and part of, the Base Case Financial Model.

as at a Calculation Date, the ratio of:

1    the net present value of the CFADS projected in the Base Case Financial Model for the period from that Calculation Date to the Maturity Date of the Project Loan Facility discounted at the effective Funding Rate on that Calculation Date taking into account the effect of any interest rate hedging; to

2    the aggregate of:

(a)   each outstanding Funding Portion under the Project Loan Facility; and

(b)   the Total Undrawn PLF Commitments,

(without double counting) on the relevant Calculation Date.

on any date, on the Calculation Date preceding that date:

1     the Debt Service Cover Ratio is greater than 1.25:1;

2     the Loan Life Cover Ratio is greater than 1.50:1; and

3     the Project Life Cover Ratio is greater than 2.00:1.

1     prior to the Completion Date, 10.50% per annum; and

2     on and from the Completion Date, 9.50% per annum.

a material adverse effect on:

1     the ability of the Obligors (taken as a whole) to perform their obligations under the Finance Documents;

2     the validity or enforceability of the Finance Parties’ rights and benefits under the Relevant Documents;

3     the validity or perfection or priority of any of the security interests created under the Security; or

4     the business, assets, operations or financial condition of the Obligors (taken as a whole).

2     each of which entitle the Option Holder to purchase one Share at the applicable Exercise Price,

3     issued by the Parent to the Original Lender in consideration of the Original Lender providing the Facility to the Borrower, and

the issue of which will be evidenced in a Holding Statement issued to the Original Lender.

the aggregate of:

1     the Overdue Margin;

2     the Margin; and

3     the Base Rate on the relevant date on which the Overdue Rate is calculated under clause 17, as determined by the Agent in accordance with the definition of “Base Rate” except that in making the determination all references in that definition to:

●        ‘Funding Period’ are references to a period of 30 days;

●        ‘Rate Set Date’ are to the relevant date on which the Overdue Rate is calculated under clause 17; and

●        ‘Funding Portion’ are to the relevant overdue amount.

a Disposal:

1     of Product on arm’s length terms in the ordinary course of its ordinary business pursuant to a Supply Agreement or a Permitted Sales Agreement;

2     of assets other than Product on arm’s length terms in the ordinary course of business provided that the aggregate book value of, or consideration paid for, all assets Disposed of by each Obligor under this paragraph in any 12 month period does not exceed $1,000,000;

3     of assets or property which is expressly permitted by a provision of a Finance Document;

4     of assets which have become worn, obsolete or redundant;

5     of assets which are to be replaced by newly-acquired assets that perform substantially similar functions;

6     of cash solely for the purpose of exchange for the equivalent amount of cash in other currencies;

(e)  as to assets in the US, Encumbrances related to statutory liens arising by operation of law, such as carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s liens, but only while and to the extent such liens are inchoate and are not the subject of any enforcement action;

(f)   as to assets in the US, Encumbrances related to statutory liens arising by operation of law, such as carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s liens for which filing has been made or enforcement is being pursued, provided the aggregate amount of all such Encumbrances is less than $500,000;

(g)  Encumbrances on cash used (whether directly or as collateral provided to a surety or for a letter of credit or similar instrument, including Encumbrances on cash granted to Argonaut Insurance Company with respect to the Surety Facility) for bonds or other letters of credit and guarantees related to the Project, surface mining and related permits, black lung insurance or self-insurance, supersedeas bonds, workers’ compensation insurance or self-insurance or other bonds or guaranties required by a Government Agency in the ordinary course of the Obligors’ ordinary business in connection with their ongoing operations, provided that:

○    the aggregate amount of all cash covered by Encumbrances falling within this paragraph is equal to or less than $2,000,000 at any time; and

○    the Encumbrance is granted or exists in relation to Permitted Financial Indebtedness as described in paragraph 8 of the definition of Permitted Financial Indebtedness;

(h)  Encumbrances incurred in the ordinary course of ordinary business arising solely on any cash earnest money deposits made in connection with any letter of intent or purchase agreement in respect of an acquisition of property or assets provided such acquisition is expressly permitted under this agreement; or

(i)   purported Encumbrances evidenced by the filing of precautionary UCC financing statements relating solely to operating leases of personal property entered into in the ordinary course of its ordinary business,

provided in each case that the secured amount is paid when due or is being contested in good faith on reasonable grounds and any secured amount which remains due after final determination or settlement of the contest is paid promptly;

6    any netting or set-off arrangement entered into by an Obligor in the ordinary course of banking arrangements for the purpose of netting or setting off debit and credit balances of its bank accounts in respect of reasonable fees charged by the bank at which the account is held in connection with the maintenance of that bank account or overdraft facilities permitted under paragraph 7 of the definition of Permitted Financial Indebtedness;

2    the Finance Documents.

for a Repayment Date:

1    if Funding Portions have been provided under each of Tranche One and Tranche Two, the amount specified in the column headed ‘Repayment Instalment’ for the corresponding column headed ‘Quarter Date’ in Part A of Schedule 8; and

2    if Funding Portions have been provided under Tranche One only, the amount specified in the column headed ‘Repayment Instalment’ for the corresponding column headed ‘Quarter Ending’ in Part B of Schedule 8.

the percentage of proved and probable reserves that remain to be mined or treated following the Maturity Date compared to:

1    the total proved and probable reserves at the commencement of the Project (as stated in the Life of Mine Plan and the Base Case Financial Model at Financial Close); or

2    the total proved and probable reserves in a subsequent revision of the Life of Mine Plan and the Base Case Financial Model (which has been approved by the Agent for use in this calculation).

any:

1    dividend, charge, interest, payment or other distribution in respect of, or redemption, repurchase, defeasance or retirement of, the share capital of an Obligor;