SECONDARY PLEDGE AGREEMENT
THIS SECONDARY PLEDGE AGREEMENT is entered into as of this 18th
day of June, 1998, by and between METALCLAD CORPORATION, a Delaware
corporation (the "Pledgor"), and XXXXXXXXX, POSTER & XXXXXX, a New York
general partnership (the "Agent"), as agent for the Purchasers referred to
in the Purchase Agreement defined below.
W I T N E S S E T H:
WHEREAS, pursuant to Purchase Agreement dated as of the date
hereof (the "Purchase Agreement") between the Pledgor and ULTRA PACIFIC
H O L DINGS S.A. ("Purchaser"), Purchaser is simultaneously herewith
purchasing $252,812.50 aggregate principal amount of the Pledgor s Zero
Coupon Secured Note due August 3, 1998 (the "Notes");
WHEREAS, as more specifically set forth in the Purchase
Agreement and the Note, upon the occurrence of certain contingent events
not certain to occur, Pledgor may become obligated to issue warrants (the
"Warrants") to purchase shares of the Pledgor s Common Stock, par value
$0.10 per share;
WHEREAS, as a condition precedent and as an inducement to the
Purchaser to purchase the Notes, the Pledgor has agreed to grant to the
Agent for the benefit of the Purchasers (as defined in the Purchase
Agreement) a security interest in the Collateral (as defined below), as
more fully set forth herein;
NOW, THEREFORE, in consideration of the foregoing and other good
and valuable consideration, receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1. Definitions. For the purposes hereof unless the context
otherwise requires, the following terms shall have the meanings indicated:
1.1 "Collateral" shall mean (i) the Pledged Securities,
(ii) all proceeds of the Pledged Securities, (iii) all other monies,
securities or other property at any time and from time to time receivable
or otherwise distributed in respect of, or in exchange for, any of the
Pledged Securities or such additional securities, and (iv) all right,
title, and interest of the Pledgor in and to the Trust Account and the
proceeds thereof.
1.2 "Event of Default" shall mean an Event of Default as
defined in the Purchase Agreement.
1.3 "MIC" shall mean Metalclad Insulation Corporation, a
California corporation.
1.4 "Obligations" shall mean the obligations of the Pledgor
under the Purchase Agreement, the Note and this Agreement.
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1.5 "Pledged Securities" shall mean all of the issued and
outstanding share capital of MIC, all of which is owned beneficially and
of record by the Pledgor, and which constitutes 1,000 shares, no par
value.
1.6 "Trust Account" shall mean the Metalclad Corporation
Trust Account with Pacific National Bank, Newport Beach, California
created pursuant to the terms of a Fund Trust Agreement dated May 27, 1998
and as amended and restated pursuant to the terms of an Amended and
Restated Fund Trust Agreement dated June 16, 1998.
2. Pledge. As security for the payment and performance in full
of all of the Obligations, the Pledgor hereby grants and pledges to the
Agent for the benefit of the Purchasers, and hereby grants to the Agent a
security interest in, the Collateral. The Agent acknowledges that Pledgor
has previously granted a security interest in the Pledged Securities to
Sundial International Fund Limited and Ultra Pacific Holdings S.A. on
December 31, 1997 (the "Sundial/Ultra Pledge") and that the pledge and
s e c u rity interest granted hereby is second in priority to the
Sundial/Ultra Pledge.
3. Delivery of Collateral to Agent. The Agent hereby
acknowledges the prior delivery of certificates representing all shares of
the Pledged Securities, accompanied by stock powers or instruments of
transfer, as the case may be, duly executed in blank by the Pledgor or its
nominee, in connection with the Sundial/Ultra Pledge.
4. Registration in Nominee Name; Denomination. The Agent shall
have the right (in its sole and absolute discretion) (i) to hold the
certificates or other instruments or documents representing any of the
Collateral in its own name, the name of its nominee or in the name of the
Pledgor, endorsed or assigned in blank or in favor of the Agent, and (ii)
upon the occurrence and during the continuation of an Event of Default, to
exchange the certificates or other instruments or documents representing
the Collateral for certificates of smaller or larger denominations for any
purpose consistent with this Pledge Agreement.
5. Representations, Warranties and Covenants of the Pledgor.
The Pledgor hereby represents and warrants to, and/or covenants and agrees
with, the Agent as follows:
5.1 the Pledgor is duly organized and validly existing in
good standing under the laws of the State of Delaware and is in good
standing as a foreign corporation in all jurisdictions where the nature of
its properties or business requires it to be qualified. The Pledgor has
the corporate power to own its properties and carry on its business as now
being conducted, to execute, deliver and perform its obligations under
this Pledge Agreement and to pledge to the Agent and to grant to the Agent
a security interest in the Collateral;
5.2 the execution, delivery and performance of this Pledge
Agreement and the pledge to the Agent and the grant to the Agent of a
security interest in the Collateral (i) have been duly authorized by all
necessary corporate action on the part of the Pledgor, (ii) will not
violate, or involve the Agent or any of the Purchasers in a violation of,
any provision of any law or regulation or any order of any governmental
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authority or any judgment of any court applicable to the Pledgor or its
properties and assets, (iii) will not violate any provision of the
Certificate of Incorporation or By-Laws of the Pledgor or any indenture,
any agreement for borrowed money, any bond, note or other similar
instrument or any other material agreement to which the Pledgor is a party
or by which the Pledgor or any of its property is bound or affected, (iv)
will not be in conflict with, result in a breach of or constitute (with
due notice or lapse of time or both) a default under any such indenture,
agreement for borrowed money, bond, note, instrument or other agreement,
and (v) will not result in the creation, or imposition of any lien, charge
or encumbrance of any nature whatsoever upon any property or assets of the
Pledgor other than pursuant to this Pledge Agreement;
5.3 this Pledge Agreement constitutes the legal, valid and
binding obligation of the Pledgor, enforceable in accordance with its
terms, subject (i) as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency and other laws affecting creditors
rights generally and to moratorium laws from time to time in effect, and
(ii) to general equitable principles;
5.4 the Pledged Securities represent all of the issued and
outstanding shares of the capital stock of MIC, all of which are owned
beneficially and of record by the Pledgor;
5.5 the Pledgor has good title to the Collateral;
5.6 the Collateral is not subject to any other liens,
security interests or encumbrances;
5.7 the Pledgor has the right to pledge and to grant the
security interest in the Collateral free of any encumbrances, and without
the consent of the creditors of the Pledgor or any other person or any
governmental authority whatsoever;
5.8 there is no material pending legal or governmental
proceeding to which the Pledgor is a party or to which any of its
properties is subject, which proceeding will materially affect (i) the
Pledgor s ability to perform its obligations hereunder or (ii) the
Collateral;
5.9 this Pledge Agreement creates in favor of the Agent a
valid, binding and enforceable security interest in, and lien upon, all
right, title and interest of the Pledgor in the Collateral and, upon
delivery of the Collateral to the Agent, the Agent will have a fully
perfected first and prior security interest in and lien upon all right,
title and interest of the Pledgor in the Collateral; and
5.10 the Pledgor will not create or permit to exist any
lien, security interest or encumbrance on the Collateral except as
permitted by this Agreement.
6. Voting Rights; Dividends; Etc.
6.1 The Pledgor shall be entitled to exercise any and all
voting and/or consensual rights and powers accruing to owners of the
Pledged Securities or any part thereof for any purpose not inconsistent
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with the terms hereof, at all times, except as expressly provided in
Section 6.3 below.
6.2 Any dividends or distributions of any kind whatsoever
(in cash or otherwise) received by the Pledgor, whether declared on a
regular, periodic basis or resulting from a subdivision, combination, or
reclassification of the outstanding capital stock of the issuer, in
respect of the Pledged Securities, or received in exchange for the Pledged
Securities, or other Collateral or any part thereof or as a result of any
merger, consolidation, acquisition, or other exchange of assets to which
the issuer may be a party, or otherwise, shall, be and become part of the
Collateral pledged hereunder and shall immediately be delivered to the
Agent to be held subject to the terms hereof.
6.3 Upon the occurrence and during the continuance of an
Event of Default, all rights of the Pledgor to exercise the voting and/or
consensual rights and powers which it is entitled to exercise pursuant to
Section 6.1 shall cease, and all such rights shall thereupon become vested
in the Agent, which shall have the sole and exclusive right and authority
to exercise such voting and/or consensual rights and powers.
7. Remedies Upon Default.
7.1 If an Event of Default shall have occurred and be
continuing, the Agent may sell the Collateral, or any part thereof, at
public or private sale or at any broker s board or on any securities
exchange, for cash, upon credit or for future delivery as the Agent shall
deem appropriate subject to the terms hereof or as otherwise provided in
the New York Uniform Commercial Code. The Agent shall be authorized at
any such sale (if it deems it advisable so to do) to restrict to the full
extent permitted by applicable law the prospective bidders or purchasers
to persons who will represent and agree that they are purchasing the
Collateral for their own account for investment and not with a view to the
distribution or sale thereof, and upon consummation of any such sale the
Agent shall have the right to assign, transfer, and deliver to the
purchaser or purchasers thereof the Collateral so sold. Each such
purchaser at any such sale shall hold the property sold absolutely, free
from any claim or right on the part of the Pledgor.
7.2 The Agent shall give the Pledgor ten calendar days
written notice of its intention to make any such public or private sale,
or sale at any broker s board or on any such securities exchange, or of
any other disposition of the Collateral. Such notice, in the case of
public sale, shall state the time and place for such sale and, in the case
of sale at a broker s board or on a securities exchange, shall state the
board or exchange at which such sale is to be made and the day on which
the Collateral, or portion thereof, will first be offered for sale at such
board or exchange. Any such public sale shall be held at such time or
times within ordinary business hours and at such place or places as the
Agent may fix and shall state in the notice of such sale. At any such
sale, the Collateral, or portion thereof, to be sold may be sold in one
lot as an entirety or in separate parcels, as the Agent may (in its sole
and absolute discretion) determine. The Agent shall not be obligated to
make any sale of the Collateral if it shall determine not to do so,
regardless of the fact that notice of sale of the Collateral may have been
given. The Agent may, without notice or publication, adjourn any public
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or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale, and such sale may,
without further notice, be made at the time and place to which the same
was so adjourned. In case the sale of all or any part of the Collateral
is made on credit or for future delivery, the Collateral so sold shall be
retained by the Agent until the sale price is paid by the purchaser or
purchasers thereof, but the Agent shall not incur any liability in case
any such purchaser or purchasers shall fail to take up and pay for the
Collateral so sold and, in case of any such failure, such Collateral may
be sold again upon like notice. At any sale or sales made pursuant to
this Section 7, the Agent may bid for or purchase, free from any claim or
right of whatsoever kind, including any equity of redemption, of the
Pledgor, any such demand, notice, claim, right or equity being hereby
expressly waived and released, any or all of the Collateral offered for
sale, and may make any payment on the account thereof by using any claim
for moneys then due and payable to the Purchasers by the Pledgor as a
credit against the purchase price; and the Agent, upon compliance with the
terms of sale, may hold, retain and dispose of the Collateral without
further accountability therefor to the Pledgor or any, third party. The
Agent shall in any such sale make no representations or warranties with
respect to the Collateral or any part thereof and shall not be chargeable
with any of the obligations or liabilities of the Pledgor with respect
thereto. As an alternative to exercising the power of sale herein
conferred upon it, the Agent may proceed by a suit or suits at law or in
equity to foreclose upon the Collateral under this Pledge Agreement and to
sell the Collateral, or any portion thereof, pursuant to a judgment or
decree of a court or courts having competent jurisdiction.
8. Application of Proceeds of Sale. The proceeds of sale of
the Collateral sold pursuant to Section 7 hereof shall be distributed by
the Agent (after deduction of all costs and expenses incurred by the Agent
while enforcing its rights pursuant to this Pledge Agreement, including,
without limitation, reasonable attorneys fees and expenses) to the holder
of the Note, to be applied by the holder to the Obligations in such manner
as it may deem appropriate.
9. Agent Appointed Attorney-in-Fact. Upon the occurrence and
during the continuance of an Event of Default, the Pledgor hereby appoints
the Agent its attorney-in-fact for the purpose of carrying out the
provisions of this Pledge Agreement and the pledge of, and the grant of a
security interest in, the Collateral hereunder and the taking of any
action and the execution of any instrument which the Agent may deem
n e c xxxxxx or advisable to accomplish the purposes hereof, which
appointment is irrevocable and coupled with an interest. Without limiting
the generality of the foregoing, the Agent shall have the right and power
to receive, endorse and collect all checks and other orders for the
payment of money made payable to the Pledgor representing any dividend or
other distribution payable in respect of the Collateral or any part
thereof and to give full discharge for the same.
10. Federal Securities Laws. In view of the position of the
Pledgor in relation to the Collateral, or because of other present or
future circumstances, a question may arise under the Securities Act of
1933, as amended, as now or hereafter in effect, or any similar statute
hereafter enacted analogous in purpose or effect (such Act and any such
similar statute as from time to time in effect being hereinafter called
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the "Federal Securities Laws"), with respect to any disposition of the
Collateral permitted hereunder. The Pledgor understands that compliance
with the Federal Securities Laws may very strictly limit the course of
conduct of the Agent if the Agent were to attempt to dispose of all or any
part of the Collateral, and may also limit the extent to which or the
manner in which any subsequent transferee of any Collateral may dispose of
the same. Similarly, there may be other legal restrictions or limitations
affecting the Agent in any attempt to dispose of all or any part of the
Collateral under applicable blue sky or other state securities laws, or
similar laws analogous in purpose or effect. Under applicable law, in the
absence of an agreement to the contrary, the Agent may perhaps be held to
have certain general duties and obligations to the Pledgor to make some
effort towards obtaining a fair price even though the Obligations may be
discharged or reduced by the proceeds of a sale at a lesser price. The
Pledgor clearly understands that the Agent is not to have any such general
duty or obligation to it, and the Pledgor will not attempt to hold the
Agent responsible for selling all or any part of the Collateral at an
inadequate price, even if the Agent shall accept the first offer received
or does not approach more than one possible purchaser. Without limiting
the generality of the foregoing, the provisions of this Section 10 would
apply if, for example, the Agent were to place all or any part of the
Collateral for private placement by an investment banking firm, or if such
investment banking firm purchased all or any part of the Collateral for
its own account, or if the Agent placed all or any part of the Collateral
privately with a purchaser or purchasers.
11. Financing Statements. So long as the Obligations are
outstanding and the security interest hereunder shall not have terminated
in accordance with Section 13 hereof, the Pledgor agrees to execute and
deliver to the Agent such UCC financing statements and any amendments
thereto or continuations thereof and any other documents or instruments
and to give such notices as the Agent may deem necessary or desirable to
perfect the lien of the Agent on the Collateral. If the Pledgor does not
execute and deliver to the Agent any such financing statement, amendment
or other document or instrument or give such notice within five calendar
days after requested by the Agent, then the Secured Party is hereby
authorized by the Pledgor to file such items or give such notice, without
the signature of the Pledgor or to execute such items as attorney-in-fact
for the Pledgor. The Pledgor further authorizes the Agent, upon the
occurrence and during the continuation of an Event of Default, to notify
any obligors on instruments that all sums payable to the Pledgor relating
to the collateral shall be paid directly to the Agent.
12. Further Assurances. Upon the request of the Agent, the
Pledgor hereby agrees duly to execute and deliver, or cause to be duly
executed and delivered, from time to time, at the cost and expense of the
Pledgor, such further instruments as may be necessary or proper, in the
reasonable judgment of the Agent, to carry out the provisions and purposes
of this Pledge Agreement and to do all things necessary or advisable, in
the judgment of the Agent, to perfect and preserve the pledge and the
security interests of the Agent hereunder and in the Collateral or any
portion thereof.
13. Release of Collateral.
13.1 The pledge and grant of the security interest in all
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of the Collateral hereunder shall terminate upon payment in full of the
Obligations or conversion, redemption or prepayment in full of all of the
Notes pursuant to Section 2 of the Purchase Agreement.
13.2 At such time as the pledge and security interest
hereunder shall terminate, the Agent shall, if requested by the Pledgor,
execute such UCC termination statements or other documents as Pledgor may
reasonably request, and assign and deliver to the Pledgor, or to such
person or persons as the Pledgor shall designate, against receipt, such of
the Collateral (if any) as shall not have been sold or otherwise applied
by the Agent pursuant to the terms hereof, together with appropriate
i n s t r uments of reassignment and release and share certificates
representing the Collateral and any stock power or instrument of transfer
executed in blank, as the case may be, then remaining in the possession or
under the control of the Agent. Any such reassignment shall be without
recourse upon or warranty by the Agent (other than as to such Collateral
being free of any lien or encumbrance created by the Agent) and at the
expense of the Pledgor.
14. Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or shall be sent
by telecopy (and if sent by telecopy, shall be confirmed by registered
mail, return receipt requested, or by overnight mail or courier, postage
and delivery charges prepaid), to the following addresses:
if to the Pledgor:
Metalclad Corporation
0 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Phone: (000) 000 0000
Fax No.: (000) 000 0000
Attention: Xx. Xxxxx Xxxxxx, President
with a copy to:
Xxxxxx, Xxxxxxx & Xxxxxxx
Xxxx Center Irvine
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000 0000
FAX: (000) 000 0000 or (000) 000 0000
Attention: Xxxxx X. Xxxxxxx, Esq.
if to the Agent:
Xxxxxxxxx, Poster & Xxxxxx
Attention: Xxxxxx X. Xxxxxx, Esq.
Xxx Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000 0000
Fax No.:(000) 000 0000 or (000) 000 0000
with a copy to:
Xxxxx & Co. Ltd.
Attention: Xxxx Xxxxxx
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00 Xx. Xxxxx x Xxxxxx
Xxxxxx XX0X 0XX Xxxxxx Xxxxxxx
Phone: 000 00 000 000 0000
Fax No.: 000 00 000 000 0000
with a copy to each of the Purchasers at their addresses for receipt of
notices set forth in the Purchase Agreement.
Whenever any notice is required to be given hereunder, such notice shall
be deemed given and such requirement satisfied only when such notice is
delivered or, if sent by telecopy, when received. Addresses may be
changed upon notice of such change given as provided in this Section 14.
15. Survival of Representations and Warranties. All covenants,
agreements, representations and warranties made herein and in any
certificates delivered pursuant hereto shall survive the purchase by the
Purchasers, and the execution and delivery, of the Notes pursuant to the
Purchase Agreement, and shall continue in full force and effect until the
payment in full of the Obligations or the, conversion, redemption or
prepayment of all of the Notes pursuant to Section 2 of the Purchase
Agreement, regardless of the release of part or all of the Collateral
pursuant to the provisions of Section 13 hereof.
16. Successors. Whenever in this Pledge Agreement any of the
parties hereto is referred to such reference shall be deemed to include
the successors and assigns of such party, and all covenants, promises and
agreements by or on behalf of the parties which are contained in this
Pledge Agreement shall bind and inure to the benefit of the successors and
assigns of all other parties.
17. Reimbursement of Agent. The Pledgor agrees to pay to the
Agent an amount equal to the amount of all costs and expenses, including
reasonable legal fees and disbursements, resulting from any Collateral,
this Pledge Agreement (including the preparation of this Pledge Agreement
and all related documents whether or not the transactions contemplated
hereby are consummated) or the administration and enforcement or exercise
of any right or remedy granted to the Agent hereunder or thereunder. The
foregoing indemnity agreement includes any reasonable costs incurred by
the Agent in connection with any action or proceeding which may be
instituted in respect of the foregoing by the Agent, or by any other
person either against the Agent or in connection with which any officer,
agent or employee of the Agent is called as a witness or deponent,
including, but not limited to, the reasonable fees and disbursements of
any counsel to the Agent, and any reasonable out-of-pocket costs incurred
by the Agent in appearing as a witness or in otherwise complying with
legal process served upon it.
If the Pledgor shall fail to do any act or thing which it has covenanted
to do hereunder or any representation or warranty of the Pledgor shall be
breached, the Agent may (but shall not be obligated to) do the same or
cause it to be done or remedy any such breach and there shall be added to
the obligations of the Pledgor secured hereby, the cost or expense
incurred by the Agent in so doing, and any and all amounts expended by the
Agent in taking such action shall be repayable to it upon its demand
therefor and shall bear interest at 15% per annum from the date advanced
to the date of repayment.
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The Pledgor s obligations contained in this Section 17 shall survive the
expiration or earlier termination of this Pledge Agreement.
18. Indemnification by Pledgor. The Pledgor hereby indemnities
and holds harmless the Agent and the Purchasers (to the fullest extent
permitted by applicable law) from and against, and agrees that the Agent
and the Purchasers shall have no liability or obligation arising out of,
any and all claims, demands, losses, judgments, liabilities, penalties and
expenses (including, without limitation, reasonable attorneys fees and
disbursements) of any nature whatsoever, arising out of or related to this
Pledge Agreement or the Collateral, including with respect to the
Collateral any such claims (i) asserted before the taking of actual
possession or control of the relevant Collateral by the Agent pursuant to
this Pledge Agreement, (ii) arising out of any act of, or omission to act
on the part of, any party prior to such taking of actual possession or
control by the Agent (whether asserted before or after such taking of
possession or control), or (iii) arising out of any act on the part of the
Pledgor, its agents or affiliates before or after the commencement of such
actual possession or control by the Agent.
All indemnities contained in this Section 18 shall survive the expiration
or earlier termination of this Pledge Agreement.
19. Governing Law. This Pledge Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York (other
than any conflict of laws rule which might result in the application of
the laws of any other jurisdiction).
20. Failure to Act Not a Waiver. Neither any failure to
exercise, nor any delay on the part of the Agent in exercising, any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall
a single or partial exercise thereof preclude any other or further
exercise of any right, power or privilege.
21. Modification. No modification, amendment or waiver of any
provision of this Pledge Agreement, and no consent to any departure by the
Pledgor herefrom, shall in any event be effective unless the same shall be
in writing and signed by the Agent, and then such waiver or consent shall
be effective only in the specific instance and for the purpose for which
given. No notice to or demand on the Pledgor in any case shall entitle
the Pledgor to any other or further notice or demand in the same, similar
or other circumstances.
22. Severability. In case any one or more of the provisions
contained in this Pledge Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein shall not in any way be affected
or impaired thereby. To the extent permitted by applicable law, the
parties hereby waive any provision of law which may render any provision
hereof invalid, illegal or unenforceable in any respect.
23. Counterparts. This Pledge Agreement may be executed by the
parties hereto in separate counterparts, each of .which when so executed
and delivered shall be an original, but all such counterparts shall
together constitute one and the same instrument, and all signatures need
not appear on any one counterpart.
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24. Headings. The headings and captions of this Pledge
Agreement are for convenience of reference only and shall not define,
limit or otherwise affect any of the terms or provisions hereof.
25. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. THE
PLEDGOR HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT
LOCATED WITHIN THE COUNTY OF NEW YORK, STATE OF NEW YORK AND IRREVOCABLY
AGREES THAT, SUBJECT TO THE ELECTION OF THE AGENT, ALL ACTIONS OR
PROCEEDINGS RELATING TO THIS PLEDGE AGREEMENT OR THE SUBJECT MATTER HEREOF
MAY BE LITIGATED IN SUCH COURTS. THE PLEDGOR ACCEPTS FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH THIS PLEDGE AGREEMENT AND THE SUBJECT
MATTER HEREOF. THE PLEDGOR HEREBY AGREES THAT SERVICE UPON IT BY
REGISTERED MAIL, RETURN RECEIPT REQUESTED, SHALL CONSTITUTE SUFFICIENT
NOTICE AND SERVICE OF PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT.
NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE AGENT TO BRING
PROCEEDINGS OR OBTAIN OR ENFORCE JUDGMENTS AGAINST THE PLEDGOR IN THE
COURTS OF ANY OTHER JURISDICTION.
26. WAIVER OF JURY TRIAL. THE PLEDGOR AND THE AGENT HEREBY
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS PLEDGE AGREEMENT OR THE SUBJECT
MATTER HEREOF OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER
OF THIS TRANSACTION. THE PLEDGOR AND THE AGENT ALSO WAIVE ANY BOND OR
SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE
REQUIRED OF THE AGENT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL
ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND
THAT RELATE TO THE SUBJECT MATTER OF THIS PLEDGE AGREEMENT, INCLUDING
WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS,
AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THE PLEDGOR AND THE AGENT
FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS
LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO (OR ASSIGNMENTS OF) THIS PLEDGE
AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL (WITHOUT A JURY) BY THE COURT.
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IN WITNESS WHEREOF, the Pledgor and the Agent have caused this
Secondary Pledge Agreement to be executed by their respective duly
authorized officers, all as of day and year first above written.
The Company: METALCLAD CORPORATION
By:
-------------------------
Name: Xxxxx X. Xxxxxx
Title: President
Agent: XXXXXXXXX, POSTER & XXXXXX
By:
-------------------------
Name:
Title:
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