SHARE PLEDGE AGREEMENT
This Agreement dated August 24, 2001.
BETWEEN:
XXXX XXXXX, a businessman, of 0000 Xxxxxxx Xxxxxxx, Xxxxxxxxxx, XX, X.X.X.
00000
(the "Secured Party")
AND:
GLOBALTEX INDUSTRIES INC. a company incorporated under the laws of the
Province of British Columbia, having an office at #501 - 1200 West Xxxxxx
Street, Vancouver, British Columbia, V6E 2S9
(the "Debtor")
WHEREAS:
A. The Debtor and the Secured Party have entered into a loan agreement dated
August 24, 2001 (as the same may be amended, extended, renewed, replaced,
restated and in effect from time to time the "Loan Agreement") pursuant to
which the Secured Party has advanced to the Debtor the amount of US $1,150,000;
B. Pursuant to the Loan Agreement, the Debtor is required to grant to the
Secured Party the security created hereby as security for the due payment of
the amounts due from the Debtor to the Secured Party under the Loan Agreement
and for the performance of the obligations of the Debtor under the Loan
Agreement (hereinafter collectively referred to as the "Indebtedness and
Liabilities"); and
C. Pursuant to an existing share pledge agreement between the Debtor, the
Lender, The X. Xxxxxxxxx Xxxxx Foundation and Rockside Foundation, dated
December 15, 2000, the Debtor has already pledged to the Secured Party its
shares of Falls Mountain Coal Inc. to secure certain other loan advances (the
"Existing Share Pledge Agreement").
NOW THEREFORE for valuable consideration (the receipt and sufficiency of which
are hereby acknowledged by the Debtor) the Debtor hereby agrees with the
Secured Party as follows:
1. Security
As general and continuing security and as a pledge to secure the due payment
and performance of the Indebtedness and Liabilities, the Debtor hereby pledges
and hypothecates to the Secured Party 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 Coal Inc. and any other additional securities as may
hereafter be delivered to the Secured Party by the Debtor, subject to the terms
hereof, together with all renewals and replacements thereof and substitutions
therefore (collectively the "Pledged Securities"), and proceeds thereof, and
agrees that such shares and all such additional securities shall be held by the
Secured Party.
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 payment and performance of the Indebtedness and Liabilities. 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
certificate(s) representing the Pledged Securities without any further
formality or action on the part of the Debtor or the Secured Party.
2. Delivery
The Debtor hereby confirms that is has delivered to the Secured Party the share
certificates representing the shares described in Exhibit A hereto, to be held
by the Secured Party on the terms and conditions contained herein, and the
Secured Party hereby acknowledges that it has received and his continuing to
hold such certificates pursuant to the terms of this agreement and the Existing
Share Pledge 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 Debtor
Subject to the provisions of the Loan Agreement unless and until there is an
Event of Default by the Debtor under or pursuant to the Loan Agreement, or any
security granted pursuant thereto, and without prejudice to the security
interest hereby constituted, the Debtor 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.
5. Rights of the Secured Party
The Debtor further agrees that:
(a) at any time after an Event of Default has occurred under or pursuant to
the Loan Agreement, or security held by the Secured Party pursuant to the Loan
Agreement, 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
were the absolute owners thereof, with all proceeds of sale being paid to the
Secured Party to be applied on account of the Indebtedness and Liabilities to
the full extent of the Indebtedness and Liabilities and the balance, if any,
remaining thereafter being paid to the Debtor;
(b) 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;
(c) the Pledged Securities or any excess thereof or proceeds of sale of the
same may be applied upon any of the Indebtedness and Liabilities in such manner
order and priority as the Secured Party may determine;
(d) 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 Indebtedness and Liabilities and will be a first charge upon
the Pledged Securities and the proceeds thereof;
(e) any substituted 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 Indebtedness and
Liabilities 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 Indebtedness and Liabilities 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 Indebtedness and Liabilities have 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 Debtor such releases as the
Debtor may require for such purpose.
8. Governing Law
This Agreement will be governed by the laws of the Province 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 shall be deemed to
be an original, and such counterparts together shall 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. Loan Agreement
If there is any conflict between the terms of this Agreement and the terms of
the Loan Agreement, the terms of the Loan Agreement shall prevail.
12. Other Agreements
Notwithstanding the foregoing, this agreement is subject to and is intended by
the parties to co-exist with the Existing Share Pledge Agreement. To the
extent that the terms of this agreement are inconsistent with the terms of the
Existing Share Pledge Agreement, the terms of the Existing Share Pledge
Agreement will govern.
The Secured Party hereby acknowledges that a changes of control of Falls
MMountain Coal Inc. are subject to certain restrictions under a Joint Venture
Agreement dated February 14, 1996 among Falls Mountain Coal Inc., Mitsui
Matsushima Canada Ltd., BCR Ventures Inc. and the Debtor, as amended from time
to time, and agrees to cooperate with the Debtor in abiding by the requirements
and conditions of such restrictions.
13. Interpretation
It is agreed that the expressions "Debtor" , and "Secured Party" wherever used
herein shall include the heirs, executors, administrators, successors and
assigns of the Debtor and the Secured Party respectively, and wherever the
singular or masculine is used throughout this agreement the same shall 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: (C/S)
_____________________
Authorized Signatory
XXXX XXXXX
_________________________________
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
