EXHIBIT 4.27
SHARE PLEDGE AGREEMENT
This Agreement dated March 10, 2003.
BETWEEN:
MITSUI MATSUSHIMA CANADA LTD., a company incorporated under the laws of
British Columbia having its registered office at Suite 1600 - 000 Xxxxxxxx
Xxxxxx, Xxxxxxxxx, XX X0X 0X0
(the "Secured Party")
AND:
GLOBALTEX INDUSTRIES INC. a company incorporated under the laws of the
Province of British Columbia, having an office at Suite 501 - 535 Xxxxxxx
Street, Vancouver, British Columbia, V6E 3L2
(the "Guarantor")
WHEREAS:
A. the Guarantor, its wholly-owned subsidiary, Falls Mountain Coal Inc.,
("Falls Mountain") and the Secured Party have entered into a purchase and sale
agreement dated March 10, 2003 (the "Purchase Agreement") pursuant to which
Falls Mountain will purchase and the Secured Party will sell the Joint Venture
Interest (as defined in the Purchase Agreement);
B. pursuant to the Purchase Agreement, Falls Mountain has a contingent
liability to the Secured Party defined in the Purchase Agreement as the Break
Fee (the "Break Fee Obligation");
C. pursuant to the Purchase Agreement, the Guarantor has guaranteed the
performance by Falls Mountain of all of its obligations to the Secured Party
under the Purchase Agreement, including, but not limited to, the Break Fee
Obligation; and
D. the Guarantor has agreed to grant to the Secured Party the security created
hereby as security for the due payment and performance of the Break Fee
Obligation. NOW THEREFORE for valuable consideration (the receipt and
sufficiency of which are hereby acknowledged by the Guarantor) the Guarantor
hereby agrees with the Secured Party as follows:
1. Security
As a pledge to secure the due payment and performance of the Break Fee
Obligation, the Guarantor hereby pledges and hypothecates to the Secured Party
and grants and creates a security interest in favour of the Secured Party in
the shares described in Exhibit A to this agreement which shares represent 100%
of the issued and outstanding shares in the capital of Falls Mountain and any
other additional securities, rights and property issued or received in exchange
therefor or with respect thereto, including but not limited to, any shares that
may be issued to the Guarantor as a stock dividend and any securities, rights
or other property that the Guarantor may receive or be entitled to receive in
exchange therefor, whether upon a merger, reorganization, consolidation, stock
split or reclassification or otherwise, and any additions or substitutions
thereto or therefor (collectively, the "Pledged Securities"), and any proceeds
thereof, and agrees that the Pledged Securities will be held by the Secured
Party.
The Guarantor will, in its capacity as the sole shareholder of Falls Mountain,
use its best efforts to prohibit any dilution of its interest in Falls Mountain
and will immediately deliver or cause to be delivered to the Secured Party any
securities issued from time to time hereafter by Falls Mountain, which
securities will be included in the Pledged Securities.
The Guarantor will not exchange, sell, transfer, lend, encumber or dispose of
the Pledged Securities, nor will it grant any option with respect thereto.
The Pledged Securities and the security interest therein granted in favour of
the Secured Party will be held by the Secured Party as collateral security to
secure the due payment and performance of the Break Fee Obligation. The
Pledged Securities will be subject to the terms hereof and the security
interest hereby constituted upon and by virtue of delivery of the share
certificates representing the Pledged Securities without any further formality
or action on the part of the Guarantor or the Secured Party. Upon the execution
and delivery of this agreement by the Guarantor and the Secured Party taking
possession of the Pledged Securities, the Secured Party will have perfected a
security interest in and to the Pledged Securities having a first priority.
The Guarantor may, at any time during the currency of this agreement and in
its sole discretion, replace the security interest in the Pledged Securities
granted to the Secured Party hereunder with a security interest in a cash
deposit in the amount of $500,000 or a letter of credit (the "Security
Deposit") held by an escrow holder based in Vancouver, British Columbia and
otherwise acceptable to the Secured Party acting reasonably. If the Guarantor
exercises its right to effect such a substitution of security interests, then,
with such changes as are required for this agreement to make sense in the
context, references in this agreement to the Pledged Securities will be read as
being references to the Security Deposit.
2. Delivery
The Guarantor will delivery to the Secured Party the share certificates
representing the shares described in Exhibit A hereto, together with duly
executed or endorsed blank stock powers of attorney, to be held by the Secured
Party on the terms and conditions contained herein, and, upon such delivery,
the Secured Party will acknowledge to the Guarantor in writing that it has
received and is continuing to hold such certificates pursuant to the terms of
this agreement.
3. Responsibility of the Secured Party
It is agreed that the responsibility of Secured Party in regard to the Pledged
Securities will be limited to exercising the same degree of care, which the
Secured Party gives to its own valuable property.
4. Rights of the Guarantor
Unless and until there is an Event of Default and without prejudice to the
security interest hereby constituted, the Guarantor will be entitled to
exercise all rights of a holder of the Pledged Securities including, without
limitation, any and all voting rights appertaining to the Pledged Securities,
and the Secured Party will not seek to collect or see to the payment of any
income or capital of, on or from any of the Pledged Securities or to sell or
otherwise realize upon any of the Pledged Securities to enforce its security
interesting the Pledged Securities.
5. Rights of the Secured Party
The Guarantor further agrees that:
(a) the occurrence of any of the following events shall be an event of default
("Event of Default") under this agreement:
(i) a default by the Guarantor or Falls Mountain in respect of the due payment
and performance of the Break Fee Obligation;
(ii) a breach of any agreement, covenant, warranty or representation in this
agreement by the Guarantor and the same has not been cured within 10 days of
notice of such event having been given to the Guarantor;
(iii) a breach of the covenant in Subsection 5.1(n) of the Purchase Agreement
by Falls Mountain with respect only to Falls Mountain's obligation not to issue
any securities, and the same has not been cured within 10 days of notice of
such event having been given to the Guarantor; or
(iv) Falls Mountain or the Guarantor become insolvent or make a general
assignment for the benefit of creditors, or if an order is made or effective
resolutions are passed for the winding up or dissolution of Falls Mountain or
the Guarantor, or if either is declared bankrupt or if a custodian or receiver
is appointed for Falls Mountain or the Guarantor under any bankruptcy
legislation, or if a compromise or arrangement is proposed by Falls Mountain or
the Guarantor to its creditors or any class of creditors.
(b) at any time after an Event of Default has occurred the Secured Party may
forthwith, without any notice, without demand for payment, without
advertisement, and without any other formality, all of which are hereby waived,
sell the Pledged Securities or any part thereof on any recognized exchange
dealing in such securities or by public or private sale, and enforce payment of
and otherwise realize upon the security of the Pledged Securities or any part
thereof as fully and effectually as if the Secured Party was the absolute owner
thereof, with all proceeds of sale being paid to the Secured Party to be
applied on account of the Break Fee Obligation to the full extent of the Break
Fee Obligation and the balance, if any, remaining thereafter being paid to the
Guarantor;
(c) the Secured Party will not be bound or obliged at any time or under any
circumstances, to collect or see to the payment of any income or capital of, on
or from any of the Pledged Securities or to sell or otherwise realize upon any
of the Pledged Securities;
(d) the Pledged Securities or any excess thereof or proceeds of sale of the
same may be applied upon the Break Fee Obligation in such manner, order and
priority as the Secured Party may determine;
(e) all costs and charges incurred by the Secured Party with reference to the
sale, enforcement or other realization of the Pledged Securities (including all
broker's commissions, fees and other remuneration and all legal costs) will be
added to the Break Fee Obligation and will be a first charge upon the Pledged
Securities and the proceeds thereof; and
(f) any substituted or additional Pledged Securities will be held subject to
the same terms and conditions and with the same powers and authorities, as are
hereby declared and conferred.
6. Saving Provision
This will be a continuing agreement and the Pledged Securities are in addition
to and not in substitution for any other security held or which may in the
future be held by the Secured Party in respect of the Break Fee Obligation and
will not operate as a merger of any debt or suspend the fulfilment of, or
affect the rights, remedies and powers of the Secured Party in respect of the
Break Fee Obligation or any Pledged Securities hereunder.
7. Term of Agreement
This agreement and pledge hereby constituted will continue in full force and
effect until such time as the Break Fee Obligation has been paid or otherwise
satisfied in full, whereupon the Secured Party will release the Pledged
Securities or so much thereof as remains from the pledge and security interest
hereunder and execute and deliver to the Guarantor such releases as the
Guarantor may reasonably require for such purpose.
8. Governing Law
This agreement will be governed by the laws of the Province of British Columbia
and the federal laws of Canada applicable therein.
9. Counterpart Execution
This agreement may be executed in any number of counterparts as may be
necessary and delivered by facsimile each of which so signed will be deemed to
be an original, and such counterparts together will constitute one and the same
instrument and all counterparts will be construed together and will constitute
one and the same instrument.
10. Enurement
This agreement will enure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted assigns.
11. Interpretation
It is agreed that the expressions "Guarantor", and "Secured Party" wherever
used herein will include the heirs, executors, administrators, successors and
assigns of the Guarantor and the Secured Party respectively, and wherever the
singular or masculine is used throughout this agreement the same will be
construed as meaning the plural or the feminine or body corporate or politic
where the context or the parties to this agreement so require.
GLOBALTEX INDUSTRIES INC.
Per:
_____________________
Authorized Signatory
MITSUI MATSUSHIMA CANADA LTD.
Per: (C/S)
_____________________
Authorized Signatory
Exhibit A to the Share Pledge Agreement
Description of Pledged Securities
Share Certificate No. Name of Company
Description of Shares Number of Shares
No. 3 Falls Mountain Coal Inc. Common voting shares 2
No. 4 Falls Mountain Coal Inc. Common voting shares 10
