Exhibit 4.56
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT (this "Agreement") is made and entered into as
of September 16, 2005, by and between ROYAL BANK OF CANADA, a Canadian chartered
bank, "Royal Bank", and The Rockside Foundation, an Ohio non-profit corporation
("Rockside").
RECITALS
A. Pine Valley Mining Corporation, a British Columbia company ("PV"), Falls
Mountain Coal Inc., a British Columbia company ("FMC"), Pine Valley Coal Ltd.,
an Alberta company ("PVC") (together, the "Grantors") and Royal Bank (the
"Lender") are parties to that certain Credit Agreement dated for reference
September 8, 2005, (as the same may be amended, extended, renewed, replaced,
restated, or otherwise modified from time to time, the "Royal Bank Credit
Agreement'), pursuant to which Royal Bank agreed to make loans and otherwise
extend credit to or for the account of the Grantors.
B. In connection with the Royal Bank Credit Agreement, FMC and PVC (called
the "Grantors") entered into General Security Agreements with Royal Bank (the
"Royal Bank Security Documents"), pursuant to which the Grantors granted to
Royal Bank, a security interest in all of the property of the Grantors.
C. The Grantors and Rockside are parties to that certain Credit Facility
Agreement dated as of November 26, 2004 and amended on December 22, 2004 and
September 16, 2005 (together the "Rockside Credit Agreement"), pursuant to which
Rockside has agreed to make loans and otherwise extend credit to or for the
account of the Grantors.
D. In connection with the Rockside Credit Agreement, the Grantors entered
into that certain Security Agreement dated as of November 26, 2004 (the
"Rockside Security Document"), pursuant to which the FMC and PVC granted to
Rockside a security interest in all of the property of the Grantors.
E. Royal Bank and Rockside have entered into a Subordination and
Postponement Agreement dated September 16, 2005, with respect to the
Postponement by Rockside of debt
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owed to it by the Grantors, and desire to enter into this Agreement to establish
and clarify their respective rights and priorities, including, without
limitation, the priorities of their respective security interests and liens in
certain real and personal property of the FMC and PVC.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration receipt of which is hereby acknowledged by each party
hereto, the parties hereto hereby agree as follows:
AGREEMENT
1. DEFINITIONS. Terms used in this Agreement that are defined in the BC PPSA
have the meanings given to them in the PPSA, including, without limitation,
the following which are capitalized herein: Account, Chattel Paper,
Document of Title, Equipment, Instrument, Inventory, Proceeds, Securities.
As used in this Agreement, the following terms have the following meanings:
"CLAIMS" means the Royal Bank Claims and the Rockside Claims.
"COLLATERAL" means all tangible and intangible personal property of the
Grantors, including, without limitation, its Accounts, Chattel Paper,
Documents of Title, Equipment, Instruments, Inventory, Proceeds, Securities
and all Proceeds of any thereof.
"CREDITORS" means Royal Bank and Rockside.
"ENFORCEMENT ACTION" means, with respect to any Collateral: (i)
repossessing, selling, leasing or otherwise disposing of all or any part of
such Collateral, or exercising notification or collection rights with
respect to all or any portion thereof, or attempting or agreeing to do so;
(ii) commencing the enforcement with respect to such Collateral of any of
the default remedies under any of such Creditor's Financing Documents, the
PPSA or other applicable laws; (iii) appropriating, setting off, or
applying any part or all of such Collateral in the possession of, or coming
into the possession of, such Creditor or its agent or bailee, to such
Creditor's Claim.
"ENFORCEMENT PERIOD" means, with respect to the Claims of any Creditor, any
period of time commencing upon the occurrence of any default with respect
to such Claim that
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permits such Creditor to take any of the Enforcement Actions, and
continuing until either (i) the final payment or satisfaction in full of
such Creditor's Claims, or (ii) the Creditors agree in writing to terminate
such Enforcement Period.
"FINANCING DOCUMENTS" means the Royal Bank Financing Documents and the
Rockside Financing Documents.
"PPSA" means the Personal Property Security Act, R.S.B.C. 1996, C. 359 and
any regulations thereunder and any amendments thereto;
"ROCKSIDE CLAIMS" means all present and future indebtedness and liability,
absolute or contingent, direct or indirect of the Grantors or any of them
to Rockside including all claims for principal and interest pursuant to the
Rockside Credit Agreement (including interest accruing after the
commencement of a bankruptcy proceeding by or against the Grantors), or for
reimbursement in connection with amounts paid under letters of credit, or
for reimbursement of fees, costs or expenses, or otherwise, whether fixed
or contingent, matured or unmatured, liquidated or unliquidated, arising
under the Rockside Financing Documents, whether arising under contract, in
tort or otherwise.
"ROCKSIDE FINANCING DOCUMENTS" means the Rockside Credit Agreement, the
Rockside Security Document and all other documents, instruments and
agreements, whether now or hereafter existing, evidencing, documenting or
securing the Rockside Claims, as the same may be amended, extended,
renewed, replaced, restated, or otherwise modified from time to time.
"ROCKSIDE PRIORITY COLLATERAL" means all Collateral other than the Royal
Bank Priority Collateral.
"ROYAL BANK CLAIMS" means all present and future indebtedness and
liability, absolute or contingent, direct or indirect of the Grantors or
any of them to Royal Bank including all claims for principal and interest
pursuant to the Royal Bank Credit Agreement (including interest accruing
after the commencement of a bankruptcy proceeding by or against the
Grantors), or for reimbursement of fees, costs or expenses, or otherwise,
whether fixed or contingent, matured or unmatured, liquidated or
unliquidated, arising
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under the Royal Bank Financing Documents, whether arising under contract,
in tort or otherwise.
"ROYAL BANK FINANCING DOCUMENTS" means the Royal Bank Credit Agreement, the
Royal Bank Security Documents and all other documents, instruments and
agreements, whether now or hereafter existing, evidencing, documenting or
securing the Royal Bank Claims, as the same may be amended, extended,
renewed, replaced, restated, or otherwise modified from time to time.
"ROYAL BANK PRIORITY COLLATERAL" means all right, title or interest of any
of the Grantors in or to any and all of the following assets and properties
now owned or at any time hereafter acquired by any of the Grantors or in
which any of the Grantors now has or at any time in the future may acquire
any right, title or interest: (i) all Accounts; (ii) all Chattel Paper
arising from the sale of Inventory; (iii) all Documents existing in
connection with the sale of Inventory; (iv) all Instruments arising from
the sale of Inventory; (v) all Inventory including without limitation the
right to coal licenses and other Intangibles; (vi) all books and records
pertaining to the assets and properties described in clauses (i) through
(v); and (vii) to the extent not otherwise included, all Proceeds of any
and all of the foregoing.
2. NO THIRD-PARTY BENEFICIARIES. All undertakings, agreements, representations
and warranties contained in this Agreement are solely for the benefit of
Rockside and Royal Bank and there are no other parties (including, without
limitation, the Grantors) who are intended to be benefited in any way by
this Agreement. The existence of this Agreement shall not commit or
obligate Rockside or Royal Bank to make loans or extend credit to the
Grantors.
3. APPLICATION. The agreements as to the relative priorities of and rights
under the Royal Bank Claims and the Royal Bank Financing Documents shall
apply in all events and circumstances regardless of:
(a) the timing of the execution, delivery, attachment, perfection,
registration, filing, crystallization, realization or enforcement of
the Royal Bank Claims and the
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Royal Bank Financing Documents or the Rockside Claims and the Rockside
Financing Documents, or any part thereof, or the filing of any
financing statement relating thereto;
(b) the time that the indebtedness and liabilities secured by the Royal
Bank Claims or the Rockside Claims is incurred or becomes due (whether
as stated maturity or otherwise) or the date of any advance or
advances comprising all or any part of such indebtedness and
liabilities;
(c) any priority granted by any principle of law or any statute,
including, without limitation the Bank Act (Canada), the PPSA, the
Land Title Act (British Columbia), the Property Law Act (British
Columbia) and the Law and Equity Act (British Columbia);
(d) the affixation or degree of affixation of any Collateral to any real
property;
(e) the time or order of the creation, granting or execution of the Royal
Bank Financing Documents and the Rockside Financing Documents, or any
of them, or the registration thereof of the filing of any financing
statement or other instruments or documents with respect thereto;
(f) the date of default or commencement of any proceedings under, or in
respect of, any of the Royal Bank Financing Documents or the Royal
Bank Claims, or any indebtedness or liability secured thereby or any
of the Rockside Financing Documents or the Rockside Claims, or any
indebtedness of liability secured thereby or the time that any order
or judgment in respect thereof is made or entered or the time that any
execution is obtained or registered in respect thereof or any other
proceeding is commended or completed in respect thereof;
(g) the giving of, or the failure to give, any Notice to North Point or
the Grantors or to any other person or the time of the giving of any
such notice;
(h) any invalidity, irregularity or unenforceability, in whole or in part,
of the Royal Bank Financing Documents or the Royal Bank Claims or any
indebtedness or
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liability secured thereby or any limitation on the liability of the
Grantors thereunder or in respect thereof; or
(i) any other matter that may be relevant under applicable law or
otherwise.
4. SECURITY INTEREST PRIORITIES. The following, as among Creditors, shall be
the relative priority of the perfected security interests and liens of the
Creditors in the Collateral:
(a) Rockside shall have a first priority security interest in the Rockside
Priority Collateral to the extent of the Rockside Claims and Royal
Bank shall have a second priority security interest therein to the
extent of the Royal Bank Claims subject to the Royal Bank's right to
realize on its Royal Bank Priority Collateral before Rockside realizes
on the Rockside Priority Collateral.
(b) Royal Bank shall have a first priority security interest in the Royal
Bank Priority Collateral to the extent of the Royal Bank Claims and
Rockside shall have a second priority security interest therein to the
extent of the Rockside Claims.
For the purposes of the foregoing allocation of priorities, any claim of a
right of setoff shall be treated in all respects as a security interest,
and no claimed right of setoff shall be asserted to defeat or diminish the
rights or priorities provided for herein. The priorities set forth herein
are solely for the purpose of establishing the relative rights of the
Creditors and there are no other persons or entities that are intended to
be benefited in any way by this Agreement.
5. DISTRIBUTION OF PROCEEDS OF COLLATERAL. During any Enforcement Period, all
realizations upon Collateral shall be distributed in accordance with the
following procedure:
(a) All realizations upon Royal Bank Priority Collateral shall be applied
to the Royal Bank Claims. After the Royal Bank Claims are paid or
otherwise satisfied in full, any remaining realizations upon Royal
Bank Priority Collateral shall be applied to the Rockside Claims until
they are paid or otherwise satisfied in full.
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(b) After the Royal Bank Claims are paid or otherwise satisfied in full,
any realizations upon Rockside Priority Collateral shall be applied to
the Rockside Claims until they are paid or otherwise satisfied in
full,
(c) After all of the Claims have been paid or otherwise satisfied in full,
the balance of realizations upon Collateral, if any, shall be paid to
the Grantors or as otherwise required by applicable law.
6. ENFORCEMENT ACTIONS. The Creditors agree that:
(a) Rockside will not, during any Enforcement Period relating to the
Rockside Priority Claims, take any Enforcement Action with respect to
the Rockside Priority Collateral, without first obtaining the prior
consent of Royal Bank.
(b) Royal Bank may, at its option, during any Enforcement Period relating
to the Royal Bank Claims, take any Enforcement Action it deems
appropriate with respect to the Royal Bank Priority Collateral,
without any requirement that it obtain the prior consent of Rockside.
(c) Until the Royal Bank Claims have been paid or satisfied in full,
Rockside shall not take any Enforcement Action against the Royal Bank
Priority Collateral without first obtaining the prior written consent
of Royal Bank.
(d) Until Rockside Claims have been paid or satisfied in full, Royal Bank
shall not take any Enforcement Action against Rockside Priority
Collateral without first obtaining the prior written consent of
Rockside unless Rockside has not commenced Enforcement Action against
the Rockside Priority Collateral within a reasonable time after it
becomes entitled to take Enforcement Action.
(e) An event of default under the Rockside Financing Documents shall
constitute an event of default under the Royal Bank Financing
Documents and an event of default under the Royal Bank Financing
Documents shall constitute an event of default under the Rockside
Financing Documents.
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7. WAIVER OF RIGHT TO REQUIRE MARSHALING. Each Creditor hereby expressly
waives any right that it otherwise might have to require the other Creditor
to marshal assets or to resort to Collateral in any particular order or
manner, whether provided for by common law or statute; provided that this
Section shall not override any specific provision of this Agreement. No
Creditor shall be required to enforce any guaranty or any security interest
given by any person or entity other than the Grantors as a condition
precedent or concurrent to the taking of any Enforcement Action.
8. EXERCISE OF REMEDIES. Subject only to any express provision of this
Agreement that requires a Creditor to take or refrain from taking an
action, each Creditor may exercise its good faith discretion with respect
to exercising or refraining from exercising any of its rights and remedies
or taking any Enforcement Action.
9. NO CONTEST OF SECURITY. Neither of the Creditors will:
(a) assert in any action, suit or proceeding whatsoever the invalidity,
unenforceability or ineffectiveness of this Agreement or any of the
security held by the other Creditor Party; or
(b) participate in or co-operate with any other party to pursue any such
action, suit or proceeding,
it being understood and agreed that, regardless of the validity,
effectiveness or enforceability of any of the security, as between Royal
Bank and Rockside, the Rockside Claims and the Royal Bank Claims shall rank
in accordance with the priority provisions contemplated in section 4 above.
10. NOTICES. In the event that any Creditor shall be required by the PPSA or
any other applicable law to give any notice to the other Creditor, such
notice shall be given in accordance with Section 24 hereof and 5 days'
notice shall be conclusively deemed to be commercially reasonable.
11. INDEPENDENT CREDIT INVESTIGATIONS. No Creditor nor any of its directors,
officers, agents or employees shall be responsible to the other Creditor or
to any other person or entity for
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the Grantors' solvency, creditworthiness, financial condition or ability to
repay any of the Claims or for the accuracy of any recitals, statements,
representations or warranties of the Grantors, oral or written, or for the
validity, sufficiency, enforceability or perfection of the Claims or the
Financing Documents, or any security interests or liens granted by the
Grantors to any Creditor in connection therewith. Each Creditor has entered
into its respective financing agreements with the Grantors based upon its
own independent investigation, and makes no warranty or representation to
the other Creditor, nor does it rely upon any representation of the other
Creditor with respect to matters identified or referred to in this Section.
Neither Creditor shall have any responsibility to the other Creditor for
monitoring or assuring compliance by the Grantors with any of the Grantors'
covenants or representations made to either Creditor. Without limiting the
generality of the foregoing, either Creditor may perform in accordance with
the terms of its Financing Documents (subject to this Agreement) without
regard to whether the Grantors' performance in accordance with the terms
thereof might or would constitute or result in a breach of covenants or
representations under the other Creditor's Financing Documents, and under
no circumstances shall any Creditor be liable to the other for inducing a
breach or violation of the other's Financing Documents by virtue of
performing in accordance with the terms of its own Financing Documents
(subject to this Agreement).
12. NONAVOIDABILITY AND PERFECTION OF LIENS. The subordinations and relative
priorities set forth in this Agreement are expressly conditioned upon the
non-avoidability and perfection of the security interest to which another
security interest is subordinated. If the security interest to which
another security interest is subordinated is not perfected or is voidable
for any reason, then the subordination provided for herein shall not be
effective to the extent of such nonperfection or avoidability.
13. PERFECTION OF POSSESSORY SECURITY INTERESTS. For the limited purpose of
perfecting the security interests of the Creditors in those types or items
of Collateral in which a security interest may be perfected by possession,
each Creditor hereby appoints the other as its agent for the limited
purpose of possessing on its behalf any such Collateral that may come into
the possession of such other Creditor from time to time, and each Creditor
agrees to act as the other's agent for such limited purpose of perfecting
the other's
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security interest by possession through an agent; provided that neither
Creditor shall incur any liability to the other Creditor by virtue of
acting as the other's agent hereunder, and either Creditor may relinquish
possession of Collateral in its possession without the consent of the other
Creditor, and without incurring liability to the other Creditor, unless
there is an express written agreement to the contrary in effect between the
Creditors.
14. AMENDMENTS, MODIFICATIONS AND INCREASES. Each Creditor may enter into
amendments, extensions, renewals, replacements, restatements or
modifications of its Financing Documents with the Grantors, or may increase
or decrease the credit facilities made available by it to the Grantors,
without in any way affecting the rights and obligations of the Creditors
under this Agreement. Should either or both Creditors cease extending
further credit to the Grantors, this Agreement nevertheless shall continue
in effect as to the outstanding Claims of each Creditor until this
Agreement is terminated as set forth in Section 13 hereof
15. TERMINATION. This Agreement is a continuing agreement, and, unless both
Creditors have specifically consented in writing to its earlier
termination, this Agreement shall remain in full force and effect in all
respects until the earlier of (a) such time as the Rockside Claims are paid
or otherwise satisfied in full, Rockside has no further commitment to
extend credit facilities to the Grantors, and Rockside has released or
terminated its security interest in the Rockside Collateral, or (b) such
time as the Royal Bank Claims are paid or otherwise satisfied in full,
Royal Bank has no further commitment to extend credit facilities to the
Grantors, and Royal Bank has released or terminated its security interest
in the Collateral.
16. ACCOUNTINGS. Each Creditor agrees, upon the occurrence of any Enforcement
Action, to provide the other Creditor upon reasonable request periodic
accountings of the amount of such Creditor's Claims, giving effect to any
applications of realizations upon Collateral.
17. EFFECT OF BANKRUPTCY. This Agreement shall be and remain enforceable
notwithstanding any bankruptcy or other insolvency proceeding by or against
the Grantors.
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18. EFFECT OF DISPOSITIONS OF COLLATERAL ON OTHER SECURITY INTERESTS. To the
extent reasonably requested by either Creditor, the other Creditor will
cooperate in providing any necessary or appropriate releases to permit a
collection, sale or other disposition of Collateral by the Creditor holding
the first priority security interest therein pursuant to Section 4 of this
Agreement free and clear of the other Creditor's second priority security
interest security interest.
19. CONSTRUCTION. Unless the context of this Agreement clearly requires
otherwise, references to the plural include the singular, the singular
includes the plural, the part includes the whole, "including" is not
limiting, and "or" has the inclusive meaning represented by the phrase
"and/or." The words "hereof," "herein," "hereby," "hereunder," and similar
terms in this Agreement refer to this Agreement as a whole and not to any
particular provision of this Agreement. Section references are to this
Agreement unless otherwise specified.
20. MODIFICATIONS IN WRITING. No amendment, modification, supplement,
termination, consent, or waiver of or to any provision of this Agreement
nor any consent to any departure therefrom shall in any event be effective
unless the same shall be in writing and signed by or on behalf of each of
the Creditors. Any waiver of any provision of this Agreement, or any
consent to any departure from the terms of any provisions of this
Agreement, shall be effective only in the specific instance and for the
specific purpose for which given.
21. WAIVERS; FAILURE OR DELAY. No failure or delay on the part of either
Creditor in the exercise of any power, right, remedy, or privilege under
this Agreement shall impair such power, right, remedy, or privilege or
shall operate as a waiver thereof; nor shall any single or partial exercise
of any such power, right, or privilege preclude any other or further
exercise of any other power, right, or privilege. The waiver of any such
right, power, remedy, or privilege with respect to particular facts and
circumstances shall not be deemed to be a waiver with respect to other
facts and circumstances.
22. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of British Columbia, excluding its conflict of
laws rules.
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23. CONSENT TO JURISDICTION. Each party hereto irrevocably submits to the
nonexclusive jurisdiction of British Columbia, in any action or proceeding
brought to enforce or otherwise arising out of or relating to this
Agreement, hereby waives any objection to venue in any such court and any
claim that such forum is an inconvenient forum and agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in any other jurisdiction by suit on the judgment or in any other
manner provided by law. Nothing in this Section 23 shall impair the right
of any party to bring any action or proceeding hereunder in the courts of
any other jurisdiction.
24. NOTICES AND COMMUNICATIONS. All notices and other communications provided
for in this Agreement shall be in writing or (unless otherwise specified)
and shall be mailed (with first class postage prepaid) or sent or delivered
to each party by facsimile or courier service at the address or facsimile
number set forth below, or at such other address as shall be designated by
such party in a written notice to the other parties.
If to Rockside: Rockside, N.A.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxx, XX 00000-0000
Attn: President
Facsimile: (000) 000-0000
If to Royal Bank: Royal Bank of Canada
South Tower
Royal Bank Plaza
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attn: Pine Valley Account Manager
Facsimile: (000) 000-0000
Except as otherwise specified all notices sent by mail, if duly given,
shall be effective 3 business days after deposit into the mails, all
notices sent by a nationally recognized courier service, if duly given,
shall be effective one business day after delivery to such
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courier service, and all other notices and communications if duly given or
made shall be effective upon receipt.
25. HEADINGS. Section headings used in this Agreement are for convenience of
reference only and shall not constitute a part of this Agreement for any
purpose or affect the construction of this Agreement.
26. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties on separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be
an original and all of which counterparts, taken together, shall constitute
but one and the same Agreement. This Agreement shall become effective upon
the execution and delivery of a counterpart hereof by each of the parties
hereto.
27. SEVERABILITY OF PROVISIONS. Any provision of this Agreement which is
illegal, invalid, prohibited, or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such illegality,
invalidity, prohibition, or unenforceability without invalidating or
impairing the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
28. COMPLETE AGREEMENT. This Agreement is intended by the parties as a final
expression of their agreement and is intended as a complete statement of
the terms and conditions of their agreement. This Agreement shall not be
modified except in a writing signed by the party to be charged, and may not
be modified by conduct or oral agreements.
29. SUCCESSORS AND ASSIGNS. This Agreement is binding upon and inures to the
benefit of the successors and assigns of each Creditor. Each Creditor
agrees to maintain a copy of this Agreement together with its copies of the
Financing Documents relating to its Claims. Each Creditor expressly
reserves its right to transfer or assign its Claims, in whole or in part,
together with its rights hereunder; provided that, prior to transferring or
assigning any interest in its Claims to any person or entity, each Creditor
shall disclose to such person or entity the existence and contents of this
Agreement, shall provide to such
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person or entity a complete and legible copy hereof, and shall advise such
person or entity that such Creditor's security interest in the Collateral
is subject to the terms hereof.
30. FEES AND DISBURSEMENTS. In the event of any dispute concerning the meaning
or interpretation of this Agreement that results in litigation, or in the
event of any litigation by a party to enforce the provisions hereof, the
prevailing party shall be entitled to recover from the nonprevailing party
its reasonable solicitor's fees and disbursements, and any actual court
costs incurred.
31. RELEASE OF COLLATERAL. The Creditors agree that either Creditor may release
or refrain from enforcing its security interest in any Collateral, or
permit the use or consumption of such Collateral by the Grantors free of
such Creditor's security interest, without incurring any liability to the
other Creditor.
32. REALIZATION OF SECURITY BY CREDITORS. Rockside and the Royal Bank shall use
reasonable efforts to co-operate in the realization of the Rockside
Financing Documents and the Royal Bank Financing Documents. Rockside
acknowledges:
(a) the paramountcy of the Royal Bank's rights to collect and realize on
the Royal Bank Priority Collateral;
(b) that the Royal Bank has the right to use the Rockside Priority
Collateral in whatever way the Royal Bank deems necessary to enable
the Royal Bank to most efficiently liquidate the Royal Bank Priority
Collateral for such collection and realization; and
(c) and agrees that Rockside will not jeopardize, impair or interfere with
such collection and realization.
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IN WITNESS WHEREOF, the Creditors have caused this Agreement to be executed
by their respective officers or agents thereunto duly authorized as of the date
first above written.
ROYAL BANK: ROYAL BANK OF CANADA, a Canadian
chartered bank
By /s/ X. Xxxxxxxxxx
-------------------------------------
Its Senior Manager, Underwriting
By
-------------------------------------
Its Senior Manager, Portfolio
THE ROCKSIDE FOUNDATION: THE ROCKSIDE FOUNDATION, N.A.,
an Ohio non-profit corporation
By /s/ Xxxxxxx X. Xxxx
-------------------------------------
Its Secretary
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CONSENT OF DEBTOR
The undersigned ("the Grantors"), hereby acknowledge receipt of a copy of
the foregoing Intercreditor Agreement (the "Intercreditor Agreement"; all
capitalized terms used and not otherwise defined herein shall have the
respective meanings given to them in the Intercreditor Agreement) and consents
to the terms thereof. The Grantors acknowledge and agree that any payments or
other amounts received by a Creditor which are required to be turned over or
otherwise remitted by such Creditor to the other Creditor pursuant to the terms
of the Intercreditor Agreement shall not be deemed to be payments on the Claims
of the Creditor who is required to turn over or otherwise remit such payments or
other amounts to the other Creditor.
Executed this 16 day of September, 2005.
PINE VALLEY MINING: PINE VALLEY MINING CORPORATION,
CORPORATION a British Columbia corporation
By /s/ Xxxxxx Rip
-------------------------------------
Its VP Finance and CFO
By
-------------------------------------
Its
------------------------------------
FALLS MOUNTAIN COAL INC.: FALLS MOUNTAIN COAL INC.,
a British Columbia corporation
By /s/ Xxxxxx Rip
-------------------------------------
Its Secretary
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By
--------------------------------------
Its
-------------------------------------
PINE VALLEY COAL LTD.: PINE VALLEY COAL LTD.,
an Alberta corporation
By /s/ Xxxxxx Rip
-------------------------------------
Its Authorized Officer
By
-------------------------------------
Its
------------------------------------
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