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EXHIBIT 10.67
SHARE PLEDGE AGREEMENT
PLEDGOR: FutureLink Corp.
SECURED PARTY: Foothill Capital Corporation
CORPORATION: 1423280 Ontario Inc.
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SHARE PLEDGE AGREEMENT
PARTIES
PLEDGOR
Name: FutureLink Corp.
Address: 2 South Point Drive
Lake Forest, California
92630 USA
Fax No: (949) 672-3117
SECURED PARTY
Name: Foothill Capital Corporation
Address: 2450 Colorado Avenue,
Suite 3000 West
Santa Monica, California
90404
Fax No: (310) 453-7443
CORPORATION
Name: 1423280 Ontario Inc.
Address: 100 King Street West
1 First Canadian Place Suite 6600
Toronto, ON M5X 1B8
Fax No: (416) 863-6666
EFFECTIVE DATE
December 14, 2000 (the "Effective Date")
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1. GRANT OF SECURITY INTEREST
For valuable consideration (the receipt and sufficiency of which each of
the parties hereto hereby acknowledges) the Pledgor hereby assigns, pledges,
hypothecates and grants to the Secured Party a security interest (to which the
Personal Property Security Act (Ontario) and the regulations thereto, as the
same may be amended from time to time (the "PPSA") applies in and grants,
mortgages and charges as and by way of a fixed and specific mortgage and charge
to and in favour of the Secured Party, all of the Pledgor's rights, title and
interests in and to 2,426,191.387 common shares in the capital of the
Corporation owned by the Pledgor including without limitation all dividends or
other distributions paid or payable in respect thereof from time to time (the
"SHARES"), all pursuant to and in accordance with the provisions of this
Agreement.
2. SECURED OBLIGATIONS
The security interests, mortgages and charges granted hereby secure all
of the following (collectively, the "OBLIGATIONS"): both the performance and the
payment to the Secured Party of all obligations, debts and liabilities
(including, without limitation, on account of damages) of the Pledgor to the
Secured Party, present or future, direct or indirect, absolute or contingent,
liquidated or unliquidated, matured or not, wheresoever and howsoever incurred,
(a) whether arising under this or any other agreement (whether
written or oral), instrument or writing;
(b) whether arising from dealings between the Secured Party and the
Pledgor or from other dealings or proceedings by which the
Secured Party may be or become in any manner whatever a
creditor, obligee or promisee of the Pledgor;
(c) whether incurred by the Pledgor alone or with another or others;
(d) whether incurred by the Pledgor as principal, surety,
indemnitor, obligor or promissor; and
(e) whether such obligations, debts and liabilities are from time to
time reduced and thereafter increased or entirely extinguished
and thereafter incurred again,
all including, without limitation, all interest, commissions, legal and
other costs, charges and expenses payable in connection with any and all of the
foregoing and, in addition thereto, the Expenses (provided for and defined
below).
3. ATTACHMENT
Each of the parties hereto acknowledges and confirms that the security
interests, mortgages and charges granted hereby shall attach:
(a) forthwith upon the Effective Date with respect to the Shares in
which the Pledgor then has rights; and
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(b) with respect to Substituted or Additional Shares (defined below)
forthwith upon the Pledgor first acquiring rights in such
Substituted or Additional Shares.
For greater certainty, without in any way limiting the above, each of
the parties hereto acknowledges and confirms that they have not agreed to
postpone the time for attachment of the said security interests, mortgages and
charges.
4. PERFECTION
(a) Subject to paragraph 4(b) hereof, in furtherance of the security
interests, mortgages and charges hereby granted to the Secured
Party, the Pledgor agrees that contemporaneously with the
execution of this Agreement, it shall deliver the following to
the Secured Party upon the terms hereof:
(i) the relevant share certificate(s) representing all of
the Shares, duly registered in the name of the Pledgor,
and duly endorsed in blank for transfer hereunder and
noting conspicuously on the face thereof the following:
"TAKE notice that the ownership and transfer of
the shares represented by this Certificate are
restricted by and are subject to the provisions
of a Share Pledge Agreement dated December 14,
2000".
(ii) a transfer in blank of the Shares duly executed by the
Pledgor, the Pledgor hereby giving the Secured Party the
authority to complete the said transfer on its behalf
upon the occurrence of an Event of Default (defined
below);
(iii) a certified copy of a resolution of the directors of the
Corporation approving the hypothecation and pledge of
the Shares to the Secured Party, the notation of the
Secured Party's interest on the relevant share
certificate(s) and in the shareholder ledgers of the
Corporation, any further transfers of the Shares made
pursuant to this Agreement, and the recording of same in
the books and records of the Corporation, which
resolution shall state that it may not be amended or
revoked without the prior written consent of the Secured
Party; and
(iv) signed, undated resignations addressed to the
Corporation pursuant to which each officer and/or
director of the Corporation resigns from all offices
with the Corporation and/or as a director on its board
of directors.
(b) The Secured Party acknowledges and agrees that it shall hold the
Shares hereby delivered to it in accordance with the terms of
this Agreement.
5. RIGHT TO VOTE
So long as no Event of Default has occurred hereunder, the Pledgor shall
be entitled to remain as shareholder of record of the Shares and to exercise all
voting rights in respect of the Shares.
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6. RIGHT TO DIVIDENDS, ETC.
So long as no Event of Default has occurred hereunder, the Pledgor shall
be entitled to receive all dividends and other distributions paid or payable in
respect of the Shares. In the event that the Pledgor receives any dividend or
other distribution contrary to the foregoing it shall stand possessed of same in
trust solely for the Secured Party and shall forthwith pay or deliver the same
to the Secured Party to be applied in accordance with paragraph 15.
7. PLEDGOR'S WARRANTIES
The Pledgor hereby represents and warrants to and covenants with the
Secured Party as follows and acknowledges that the Secured Party is, in part,
relying upon such representations, warranties and covenants in accepting the
security interests, mortgages and charges granted upon the terms of this
Agreement:
(a) Ownership of Shares: The Pledgor is the absolute and beneficial
owner of the Shares and none of the Shares is held in the name
of any person other than the Pledgor, whether as agent, trustee
or other nominee for the Pledgor and the Shares are recorded in
the name of the Pledgor in the shareholder ledgers and registers
in the Corporation's minute book.
(b) No Encumbrances: The Shares are owned by the Pledgor with good
and marketable title thereto and they are and shall at all times
be kept free and clear of any and all mortgages, hypothecs,
pledges, claims, adverse claims, demands, liens, charges,
security interests, encumbrances, agreements, rights and
equities of any kind whatsoever other than those given by the
Pledgor to or in favour of Secured Party.
(c) Due Authorization: The Pledgor has the corporate power and
capacity to enter into this Agreement and to do all acts and
things as are required or contemplated hereunder to be done,
observed and performed by it.
(d) Right to Grant: The Pledgor has taken all necessary corporate
action to authorize the execution, delivery and performance of
this Agreement and the Pledgor shall at all relevant times have
the full right, power and authority to perform its obligations
hereunder and to grant the security interests, mortgages and
charges as herein provided.
(e) No Default: The entering into of this Agreement and the
performance by the Pledgor of its obligations hereunder does not
and will not contravene, breach or result in any default under
any agreement to which the Pledgor is a party or by which the
Pledgor or any of the Shares may be bound and will not result in
or permit the acceleration of the maturity of any indebtedness,
liability or obligation of the Debtor under any such agreement.
(f) No Agreements or Options: No person, firm or corporation other
than the Secured Party has any agreement or option (whether
written or oral) or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming an agreement or
option for the purchase of the Shares or any interests therein
or rights thereto.
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(g) No Litigation: There is not pending any court, administrative,
regulatory or other action or legal proceeding of any sort
either to restrain or otherwise prevent in any manner the
Pledgor from effectually and legally hypothecating and pledging
the Shares to the Secured Party free and clear of any and all
mortgages, hypothecs, pledges, claims, adverse claims, demands,
liens, charges, security interests, encumbrances, agreements,
rights and equities of any kind whatsoever or any suit, action
or proceeding the effect of which would be to cause a lien to
attach to the Shares or to divest title to the Shares in any
manner whatsoever.
(h) Issued Capital: The only issued and outstanding shares in the
capital of the Corporation owned by the Pledgor are the Shares
and no person, firm or corporation has any agreement or option
(whether written or oral) or any right or privilege (whether by
law, pre-emptive or contractual) capable of becoming an
agreement, including convertible securities, warrants or
convertible obligations of any nature for the purchase,
subscription, allotment or issuance of any of the unissued
shares in the capital of the Corporation.
8. PLEDGOR'S COVENANTS
The Pledgor covenants and agrees with the Secured Party that:
(a) Obligations: The Pledgor shall pay, perform, satisfy, fulfill
and discharge the Obligations when due.
(b) No Transfers or Encumbrances: The Pledgor shall not either
directly or indirectly (including by way of corporate
reorganization, amalgamation or otherwise) sell, transfer,
convey, assign, exchange, convert or in any manner dispose of,
pledge or in any manner encumber any of the Shares without the
prior written consent of the Secured Party, except as expressly
permitted or required elsewhere herein.
(c) Substituted or Additional Shares: In the event any substituted
or additional shares in the capital of the Corporation are
received or acquired (directly or indirectly) by or on behalf of
the Pledgor, whether as a result of a share issuance,
subdivision, consolidation, conversion, reclassification, stock
dividend, transfer, sale, reorganization, amalgamation or
otherwise (the "SUBSTITUTED OR ADDITIONAL SHARES"), the Pledgor
shall stand possessed of the Substituted or Additional Shares in
trust for the Secured Party and shall forthwith deliver to the
Secured Party the certificate or certificates representing the
Substituted or Additional Shares together with a certified copy
of the resolution of the directors of the Corporation approving
the hypothecation and pledge thereof to the Secured Party
whereupon the Secured Party shall hold and deal with the
Substituted or Additional Shares and the certificate or
certificates evidencing the same as the Shares.
9. EVENTS OF DEFAULT
Forthwith upon the occurrence of any of the following events (an "EVENT
OF DEFAULT"), the Obligations will, without the Secured Party being required to
give notice or demand, become due and payable in full and, to the extent
applicable, be required to be fully performed:
(a) the failure of the Pledgor to pay when due any payment of any of
the Obligations;
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(b) the failure of the Pledgor to perform any of the Obligations;
(c) any representation, warranty, statement or report which is false
or incorrect in any respect having been made or given by the
Pledgor to the Secured Party, whether contained herein or in any
other agreement (written or oral), instrument or writing;
(d) the failure or inability of the Pledgor or the Corporation to
pay any of its debts or liabilities as the same fall due;
(e) the occurrence of a default by the Pledgor under any agreement,
instrument or writing entered into by the Pledgor with any
person(s);
(f) the Pledgor or the Corporation making or agreeing to make an
assignment, disposition or conveyance, whether by way of sale or
otherwise, of its assets in bulk;
(g) the abandonment by the Pledgor or the Corporation of its assets
or any part thereof;
(h) the Pledgor or the Corporation ceasing or threatening to cease
carrying on its business or any of its businesses;
(i) the Pledgor or the Corporation taking any action or commencing
any proceeding or any action or proceeding being taken or
commenced by another person or persons against the Pledgor or
the Corporation in respect of the liquidation, dissolution or
winding-up of the Pledgor or the Corporation, including without
limitation, any action or proceeding under the Winding Up and
Restructuring Act, the Business Corporations Act (Ontario), the
Canada Business Corporations Act or other similar legislation
whether now or hereinafter in effect;
(j) the Pledgor or the Corporation taking any action or commencing
any proceeding or any action or proceeding being taken or
commenced by another person or persons against the Pledgor or
the Corporation relating to the reorganization, readjustment,
compromise or settlement of the debts owed by the Pledgor or the
Corporation to its creditors where such reorganization,
readjustment, compromise or settlement shall affect a
substantial portion of the Pledgor's or the Corporation's
assets, including without limitation, the filing of a notice of
intention to make a proposal or the filing of a proposal
pursuant to the provisions of the Bankruptcy and Insolvency Act,
the making of an order under the Companies' Creditors
Arrangements Act or the commencement of any similar action or
proceeding by the Pledgor or the Corporation or such person or
persons;
(k) the Pledgor or the Corporation committing or threatening to
commit any act of bankruptcy pursuant to or set out under the
provisions of the Bankruptcy and Insolvency Act;
(l) the filing of a petition for a receiving order against the
Pledgor or the Corporation pursuant to the provisions of the
Bankruptcy and Insolvency Act;
(m) any execution, sequestration or other process of any court or
other tribunal becoming enforceable against the
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Pledgor or the Corporation or a distress or analogous action or
proceeding being taken, commenced or issued against the Pledgor
or the Corporation or levied upon or in respect of its assets or
any part thereof, or any lien, trust claim or any other right or
entitlement against or in respect of its assets or any part
thereof becoming effective, including, without limitation, a
warrant of distress of any rent in respect of any premises
occupied by the Pledgor or the Corporation or any premises in or
upon which its assets or any part thereof may at any time be
situate or if a notice of an adverse claim in respect of the
Shares is made;
(n) the loss, damage, destruction or confiscation of any part of the
assets of the Pledgor or the Corporation unless upon such event,
the Pledgor pays to the Secured Party forthwith such amount as
the Secured Party in its absolute and uncontrolled discretion
determines is satisfactory; and
(o) the Secured Party in good faith and having commercially
reasonable grounds for believing that the ability of the Pledgor
to pay any monies hereby secured or to perform any requirement
of any provision contained in this Agreement or any other
agreement (written or oral), instrument or writing heretofore or
hereafter given by the Pledgor to the Secured Party is impaired
or that the assets of the Pledgor or the Corporation are in
danger of being lost, damaged, destroyed or confiscated.
10. RIGHTS AND REMEDIES
Forthwith upon the occurrence of an Event of Default, the security
interests, mortgages and charges granted herein shall be enforceable and the
Pledgor and the Secured Party shall have, in addition to any other rights and
remedies provided by law, the rights and remedies of a debtor and a secured
party respectively under the PPSA and those provided by this Agreement.
11. EXPENSES
The reasonable costs and expenses of the Secured Party in the
preparation, execution and delivery of this Agreement, the registration of this
Agreement or of notices, financing statements or other filings in respect
thereof, the reasonable costs and expenses of the Secured Party in connection
with the preparation or review of waivers, consents, amendments or other matters
pertaining to the subject matter of this Agreement, the reasonable costs and
expenses expressly provided for in the PPSA and, in addition thereto, the cost
of any insurance, taxes, solicitor's fees, costs and other legal expenses and
all other costs, charges and expenses of or incurred (on a scale as between a
solicitor and his own client) by the Secured Party in respect of any of the
foregoing and in respect of the enforcement of the Obligations, including taking
possession, custody, holding, preserving, protecting, repairing, using or
operating, collecting, realizing, processing, preparing for disposition and
disposing of the Shares and any other collateral for the Obligations taken by
the Secured Party (collectively, the "Expenses") shall be payable by the Pledgor
to the Secured Party forthwith upon demand, shall be deemed advanced to the
Pledgor by the Secured Party, shall bear interest at a rate equal to the Prime
Rate (defined below) plus 4% per annum calculated, both before and after demand,
maturity, default and judgment, from the date each of the Expenses,
respectively, was incurred until fully paid by the Pledgor and shall be secured
by this Agreement.
"PRIME RATE" means the annual rate of interest announced from time to
time by Royal Bank of Canada as a reference rate then in effect for determining
interest rates on Canadian dollar commercial loans in Canada.
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The Pledgor authorizes the Secured Party to designate, in its sole
discretion, any number of years as the registration period in any financing
statement or financing change statement filed with respect to this Agreement or
any other agreement delivered by the Pledgor to the Secured Party ("DESIGNATED
PERIOD").
The Pledgor acknowledges and confirms that:
(a) all registration costs in connection with the filing of the
aforesaid financing statements or financing change statements
are and shall be reasonable and shall form part of the Expenses;
(b) the designation of the number of years comprising the Designated
Period shall not constitute an acknowledgement by or commitment
or other obligation of the Secured Party to provide financial
assistance (whether by loan, agreement or otherwise) to the
Pledgor at any time or from time to time during the Designated
Period; and
(c) the Secured Party shall be entitled to exercise all of its
rights and remedies provided for in this Agreement forthwith
upon the occurrence of an Event of Default notwithstanding that
such Event of Default may occur prior to the expiration of the
Designated Period.
12. NOTICE OF DISPOSITION
Unless not required to do so by applicable law, the Secured Party shall
give to the Pledgor at least 15 days written notice of the Secured Party's
intention to dispose of the Shares. Such notice may be sent by registered mail
to the last known post office address of the Pledgor.
13. MODE OF DISPOSITION
The Secured Party may dispose of the Shares by a private sale or public
auction or tender at any place and time whatsoever and in such manner and at
such price as the Secured Party may reasonably determine, either for cash or on
credit, or for part cash and part credit. The Secured Party may postpone any
sale prior to the date thereof and may sell the Shares as a whole or in parcels
and if in parcels in such order and manner as the Secured Party may reasonably
determine. Until the time such sale is completed, the amount of any dividends or
other distributions paid or payable by the Corporation in respect of the Shares
shall be paid to the Secured Party.
14. SECURED PARTY MAY PURCHASE
Upon the disposition of the Shares at a public sale, the Secured Party
may become a purchaser of the Shares free of any right or equity of redemption
which right or equity is hereby expressly waived.
15. PROCEEDS OF DISPOSITION/DEFICIENCY
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Any proceeds of any disposition of any of the Shares shall be applied by
the Secured Party firstly on account of the Expenses, and any balance of such
proceeds shall be applied by the Secured Party on account of the Obligations
(other than the Expenses) in such order of application as the Secured Party may
from time to time effect and the same shall not be subject to dispute by the
Pledgor. If such proceeds fail to satisfy the Obligations, the Pledgor shall be
liable for the full amount of the deficiency resulting to the Secured Party.
16. GENERAL PROVISIONS
(a) Discharge: The Pledgor shall not be discharged from the
Obligations by any extension of time, additional advances,
renewals, amendments or extensions to this Agreement, any waiver
by or failure of the Secured Party to enforce any provision of
this Agreement or any other agreement, the taking of further
security, releasing security, extinguishment of the security
interests, mortgages and charges as to all or any part of the
Shares, or any other act except a release or discharge by the
Secured Party of the security interests, mortgages and charges
granted hereby upon the full payment and performance of the
Obligations, at which time the Secured Party shall, at the
Pledgor's expense, deliver to the Pledgor the relevant share
certificate(s) representing all of the Shares duly endorsed in
blank for transfer, all other documents held by the Secured
Party pursuant to this Agreement, and all necessary discharges
and releases of the security interests, mortgages and charges
granted hereby.
(b) Other Security:
(i) The security constituted by this Agreement is in
addition to and not in substitution for any other
security, guarantee or right from time to time held by
the Secured Party;
(ii) The Secured Party may realize upon or enforce all or
part of any security, guarantee or right from time to
time held by it in any order it desires and any
realization by any means upon any security, guarantee or
right shall not bar realization by upon any other
security, guarantee or right; and
(iii) The taking of any action or proceeding or refraining
from so doing or any other dealings with or in respect
of any other security, guarantee or right from time to
time held by the Secured Party shall not release or
affect the security provided for in this Agreement and
the taking of the security hereby granted or any
proceedings hereunder for the realization of the
security hereby granted shall not release or affect any
other security, guarantee or right from time to time
held by the Secured Party.
(c) Waiver, etc.: No failure or delay on the part of the Secured
Party to exercise any right provided for in or contemplated by
this Agreement and no waiver as to an Event of Default hereunder
shall operate as a waiver thereof unless made in writing and
signed by the Secured Party and, in that event, such waiver
shall operate only as a waiver of the right or Event of Default
expressly referred to therein. Nothing in this Agreement and
nothing referred to in the Obligations shall preclude any
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other remedy by action or otherwise for the enforcement of this
Agreement or the payment and performance in full of the
Obligations.
(d) Secured Party Assignment: All rights and obligations of the
Secured Party hereunder shall be freely assignable in whole or
in part without the consent of the Pledgor and in any action
brought by any assignee to enforce such rights, the Pledgor
shall not assert against such assignee any claim, defence, right
of set-off, or the benefit of any equities which the Pledgor now
has or may hereafter have against the Secured Party.
(e) Entire Agreement: This Agreement sets forth the entire intent
and understanding of the parties relating to the subject-matter
hereof and supersedes and replaces all prior agreements and
commitments, whether written or oral, made between the parties
and all earlier discussions and negotiations between them. The
parties are not relying upon and there are no collateral or
other representations, warranties, agreements or covenants made
by any of the parties hereto which are not contained herein.
(f) Further Assurances: Each of the parties hereto shall and will,
from time to time and at all times hereafter upon every
reasonable written request so to do, cause such meetings to be
held, resolutions passed and by-laws enacted, exercise its vote
and influence, make, do, execute and deliver, or cause to be
made, done, executed and delivered, all such further papers,
acts, deeds, assurances and things as may be necessary or
desirable in the opinion of any party or counsel for any party,
acting reasonably, for implementing and carrying out more
effectually the true intent and meaning of this Agreement
including, without limitation, to perfect or better perfect the
security interests, mortgages and charges of the Secured Party
in the Shares or any part thereof.
(g) Severability: In the event that any covenant or provision
contained in this Agreement is held to be invalid, illegal or
unenforceable in whole or in part, the validity, legality and
enforceability of the remaining covenants and provisions shall
not be affected or impaired thereby and all such remaining
covenants and provisions shall continue in full force and
effect. All covenants and provisions hereof are declared to be
separate and distinct covenants or provisions, as the case may
be.
(h) Headings: All headings and titles in this Agreement are for
convenience of reference only and shall not affect the
interpretation of the terms hereof.
(i) Gender, etc.: In construing this Agreement, all words and
personal pronouns relating thereto shall be read and construed
as the number and gender of the party or parties referred to in
each case require, and the verb agreeing therewith shall be
construed as agreeing with the required word and pronoun. Words
such as "hereunder", "hereto", "hereof", "herein", and other
words commencing with "here", shall unless the context clearly
indicates the contrary, refer to the whole of this Agreement and
not to any particular paragraph or part thereof.
(j) Binding Effect: All rights of the Secured Party hereunder shall
enure to the benefit of its successors and assigns and all
obligations of the Pledgor hereunder shall bind the Pledgor, its
successors and assigns. Each reference to the Secured
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Party in this Agreement shall be deemed to include a reference
to the Secured Party, its successors and assigns and each
reference to the Pledgor in this Agreement shall be deemed to
include a reference to the Pledgor, its successors and assigns.
(k) Re Liabilities: If more than one person executes this Agreement
as Pledgor, their obligations under this Agreement shall be
joint and several.
(l) Governing Law: This Agreement shall be governed by, and
interpreted and enforced in accordance with, the laws in force
in the Province of Ontario and the laws of Canada applicable
therein and shall be treated in all respects as an Ontario
contract. Each party irrevocably submits to the non-exclusive
jurisdiction of the courts of Ontario with respect to any matter
arising hereunder or related hereto.
(m) Notice: Subject to the specific requirements of the PPSA, any
demand, notice, request, consent, approval or other
communication required or permitted to be made or given by any
party hereto to any other party hereto in connection with this
Agreement shall be in writing and may be made or given by
personal delivery to such party or by transmittal by facsimile
transmission or similar electronic means of communication which
produces a paper record to such party at the fax number noted on
page 1 of this Agreement or, if a corporation, to a director
thereof or, if postal services and deliveries are then
operating, by mailing the same by prepaid registered post to
such party at its address noted on page 1 of this Agreement or
at such other address which the party to whom such communication
is being given may have designated by notice given in accordance
with the provisions of this paragraph. Any communication so
delivered or transmitted by electronic means of communication
shall be deemed to have been given and received on the day of
delivery or transmittal, if a business day, or if not a business
day, on the business day next following the day of delivery or
transmittal, and any communication so mailed shall be deemed to
have been given and received on the fourth business day
following and exclusive of the date of mailing. In this
paragraph, "business day" means any day except a Saturday,
Sunday or statutory holiday in the Province of Ontario. Either
party may give notice in writing to the other in the manner
provided in this paragraph of any change of fax number or
address of the party giving such notice, and from and after the
giving of such notice, the fax number or address therein
specified shall be deemed to be the fax number or address of
such party for purposes of this paragraph.
(n) Failure to Perfect: The Secured Party shall not be liable or
accountable for any negligence or failure to perfect its
security interests, mortgages and charges granted herein, seize,
collect, realize, sell or obtain payment for the Shares or any
part thereof and shall not be bound to institute proceedings for
the purpose of seizing, collecting, realizing or obtaining
possession or payment of the same for the purpose of preserving
the rights of the Pledgor, the Corporation or any other person,
firm or corporation in respect of same.
(o) No Amendment: This Agreement may not be amended, altered or
qualified except by a memorandum in writing signed by all of the
parties hereto and any amendment, alteration or qualification
hereof shall be null and void and shall not be binding upon any
party who has not signed such memorandum.
(p) Power of Attorney: The Secured Party, or any receiver appointed
hereunder is hereby irrevocably constituted as the duly
appointed lawful attorney of the Pledgor
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in accordance with the Powers of Attorney Act (Ontario), with
full power to make, do, execute and deliver all such documents,
assignments, acts, matters or things on behalf of the Pledgor
with the right to use the name of the Pledgor whenever and
wherever it may be deemed necessary or expedient. The power of
attorney hereby granted is a power coupled with an interest and
shall survive the dissolution, liquidation, winding-up or other
termination of existence of the Pledgor. The Pledgor agrees to
and does hereby ratify all acts done and all documents executed
and delivered by the Secured Party pursuant to the power of
attorney hereby granted and the Pledgor hereby confirms that the
Secured Party and all third parties are entitled to rely upon
such ratification.
(q) Time of Essence: Time shall be strictly of the essence of this
Agreement and of every part thereof and no extension or
variation of this Agreement shall operate as a waiver of this
provision.
(r) Pledgor's Receipt: The Pledgor hereby acknowledges receipt of a
fully signed copy of this Agreement.
(s) Independent Legal Advice: The Pledgor acknowledges having been
advised to obtain independent legal representation or advice, in
its discretion, prior to executing this Agreement and thereby
becoming bound by its terms and subject to its obligations. This
Agreement shall become effective when it is signed by the
Pledgor.
(t) Meaning of Shares: The term "SHARES" as used herein shall
include Substituted or Additional Shares.
IN WITNESS WHEREOF the Pledgor and the Secured Party have executed this
Agreement and agree to be bound thereby as of the Effective Date set out above.
THE CORPORATE SEAL of )
FUTURELINK CORP. was hereunto )
affixed in the presence of: )
) c/s
/s/ COREY E. FISCHER )
- -------------------------------------------- )
Authorized Signatory )
)
)
- -------------------------------------------- )
Authorized Signatory )
FOOTHILL CAPITAL CORPORATION by )
its authorized signatories: )
)
/s/ WILLIAM SHIAO )
- -------------------------------------------- )
Authorized Signatory )
)
)
- -------------------------------------------- )
Authorized Signatory )
)
14
- 14 -
THE CORPORATE SEAL of 1423280 )
ONTARIO INC. was hereunto affixed in the )
presence of: )
) c/s
/s/ COREY E. FISCHER )
- -------------------------------------------- )
Authorized Signatory )
)
)
- -------------------------------------------- )
Authorized Signatory )
15
- 15 -
TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto Foothill Capital Corporation, 2,426,191.387 common shares in the capital of
1423280 Ontario Inc. (the "Corporation") and does hereby irrevocably constitute
and appoint the Secretary of the Corporation as attorney to transfer or register
the transfer of the said share on the books of the Corporation, with full power
of substitution in the premises.
The undersigned has hereunto executed this transfer the 14th day of
December, 2000.
FUTURELINK CORP.
Per: /s/ COREY E. FISCHER
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AUTHORIZED SIGNING OFFICER