PLEDGE AGREEMENT
This Agreement is executed effective December 31, 1998 between SVI HOLDINGS,
INC., a Nevada corporation, having an address for notices at 0000 Xxxxxxx
Xxxxxx, Xxxxx 000, Xx Xxxxx, XX 00000 ("Pledgee") and KIELDUFF INVESTMENTS
LIMITED having an address for notices at Xxxxx X, Xxxx 0 Xxxxxxxxxx Xxxxxxxx
Xxxx, Xxxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx ("Pledgor"), who agree as follows:
1. RECITAL. This Agreement is made with reference to the following
recital of essential facts:
1.1. Pledgee and Pledgor entered into a Share Sale Agreement re Ibis
Systems Limited effective December 31, 1998 (the "Share Sale Agreement").
1.2. Pursuant to the Share Sale Agreement Pledgor has executed a
Promissory Note dated December 31, 1998 in the amount of $18,108,000 (the
"Note") in favor of Pledgee.
1.3. In order to secure Pledgor's payment obligations under the
Note, Pledgor has agreed to pledge to Pledgee all of the issued and outstanding
shares in the capital stock of Ibis Systems Limited, a company incorporated
under the laws of England (the "Company") represented by two (2) Shares (the
"Shares").
1.4. This Agreement is executed and delivered to Pledgee in
accordance with the provisions of the Share Sale Agreement in order to secure
the full and timely performance of all of the Pledgor's obligations under the
Note.
2. GRANT OF SECURITY INTEREST. To secure Pledgor's obligations to
Pledgee under the Note (and all renewals, extensions, amendments, and changes
of, or substitutions or replacements to, any of the obligations under the Note),
and the faithful performance by Pledgor of all of its obligations under the
Share Sale Agreement (all of the foregoing collectively referred to as the
"Obligations"), Pledgor hereby assigns and grants to Pledgee a security interest
in the following (collectively, the "Collateral"):
2.1. the Shares;
2.2. all stock, membership interests, dividends, distributions,
substitutions, shares (or membership interests) issued pursuant to any merger or
reorganization of the Company or any other proceeds of the Shares as the term
proceeds is defined in Section 9306 of the California Uniform Commercial Code
belonging to the Pledgor or to which the Pledgor is entitled;
2.3. all income, revenue, distributions, and proceeds of any kind
whatsoever payable to the Pledgor in respect of its interest in the Company, or
any proceeds resulting from any voluntary or involuntary conversion or transfer
(including without limitation, a sale, exchange, gift, lease, refinancing,
condemnation, or foreclosure) of the Shares or any portion of the Shares.
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3. DELIVERY OF SHARES. Upon Pledgor's execution of this Pledge
Agreement, Pledgor shall (a) concurrently and validly endorse the share
certificate(s) evidencing the Shares in blank and deliver such certificate(s) to
Xxxxxx X. Xxxxx, Esq., of Xxxxxxx Xxxx Seidenwurm & Xxxxx (the
"Pledgeholder"),and (b) deliver to Pledgeholder a duly executed Assignment
Separate from Certificate with respect to each certificate representing the
Shares (the "Assignment").
4. TERMS OF PLEDGE.
4.1. The Shares and Assignments will be held by the Pledgeholder and
are being pledged by Pledgor subject to the terms and conditions of this
Agreement. As long as no Default (as defined in paragraph 8 below) exists under
this Agreement, Pledgor will have the right at all times to exercise the voting
rights in connection with the Shares and otherwise exercise the rights of
ownership relative to the Shares, subject to the covenants contained in
Paragraph 6, below. Pledgor shall indemnify, defend, and hold Pledgeholder
harmless from and against any and all actions, causes of action, claims,
demands, expenses, and liabilities that Pledgeholder may suffer or incur by
virtue of its role as Pledgeholder under this Agreement; provided, however, the
foregoing indemnification will not relate to any such matter arising out of the
gross negligence or intentional misconduct of Pledgeholder. Pledgeholder will
not be liable to Pledgor or Pledgee for any action taken or omitted to be taken
by Pledgeholder except for Pledgeholder's own gross negligence or intentional
misconduct.
4.2. Pledgor and Pledgee acknowledge and agree that Pledgeholder's
sole duties and responsibilities under this Agreement shall be to: (a) hold the
share certificates representing the Shares and the Assignments during the term
of the pledge provided for in this Agreement; (b) following the occurrence of a
Default to deliver the share certificates representing the Shares and the
Assignments in accordance with the Agreement; (c) return the share certificates
representing the Shares and the Assignments to Pledgor upon Pledgeholder's
receipt of written notice from Pledgee that the Note has been paid in full; and
(d) upon receipt of a written directive from Pledgor or Pledgee, deliver a copy
of such directive to the party from whom such directive was not received. Upon
receipt of conflicting directives from Pledgor and Pledgee, Pledgeholder shall
have the right to either (i) cease taking any action hereunder until he receives
either (a) joint instructions from both Pledgor and Pledgee, or (b) a court
order from a court of competent jurisdiction instructing Pledgeholder how to
proceed, or (ii) file an action in interpleader to resolve such dispute and
Pledgeholder shall have no responsibility to take any action following the
filing of any such interpleader action until so instructed by all of the parties
to this Agreement or in accordance with an order from a court of competent
jurisdiction. Additionally, in the event of any action, claim, demand, or
liability suffered by Pledgeholder by virtue of any act or failure to act by any
of the Pledgor or Pledgee, then Pledgor and Pledgee shall jointly and severally
indemnify, defend, and hold Pledgeholder harmless against such action, claim,
demand, or liability, and the party responsible for such action, claim, demand,
or liability shall promptly reimburse the non-responsible party(ies) for any
costs or expenses, including attorney's fees and collection costs, incurred by
such non-responsible party in indemnifying Pledgeholder.
5. PLEDGOR'S REPRESENTATIONS AND WARRANTIES. The Pledgor represents and
warrants that the following are true and accurate:
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5.1. LEGAL POWER, RIGHT AND AUTHORITY. As of the date of this
Agreement, Pledgor has the legal power, right and authority to enter into this
Agreement.
5.2. ACTION. As of the date of this Agreement, all requisite
corporate actions have been taken by Pledgor in connection with entering into
this Agreement and the consummation of the transactions contemplated by this
Agreement.
5.3. INDIVIDUAL EXECUTING. The individual executing this Agreement
on behalf of Pledgor has the legal power, right, and actual authority to bind
Pledgor to the terms and conditions of this Agreement.
5.4. GOVERNMENTAL APPROVAL. Pledgor has obtained all permits,
approvals, licenses and other governmental consent necessary or desirable in
connection with the loan evidenced by the Note and the repayment of all
indebtedness evidenced by the Note.
5.5. NO CONFLICT. The loan evidenced by the Note does not violate or
breach any agreement, license, permit, judgment, decree, order, statute,
ordinance, rule or regulation to which Pledgor, or any of its assets are subject
or bound. Pledgor is not subject to any agreement, license, permit, judgment,
decree, order, statute, ordinance, rule or regulation that would impair the
power of Pledgor to enter into and carry out the undertakings required under the
Note. The Note does not violate, conflict with, result in the breach of, or
constitute a default under any Applicable Laws. The term "Applicable Laws" means
all applicable constitutional, legislative, judicial and administrative
provisions, statutes, regulations, decisions, rulings, orders, ordinances and
other laws of the State of California, the United States of America and the
United Kingdom.
6. COVENANTS OF PLEDGOR. Pledgor covenants that until all of the
Obligations have been fully and finally satisfied, Pledgor will fully and
completely comply (and cause compliance by the Company) with the following
affirmative and negative covenants:
6.1. Pledgor shall promptly inform Pledgee in writing as soon as
Pledgor becomes aware of: (a) any material adverse changes in the Company's
financial condition, and (b) all existing and all threatened litigation, claims,
investigations, administrative proceedings or similar actions effecting the
Company which could materially effect the financial condition of the Company.
6.2. Pledgor shall cause the Company to maintain its books and
records in accordance with its current custom and practice and permit Pledgee to
examine and audit the Company's books and records at all reasonable times.
Pledgor shall cause the Company to maintain fire and other risk insurance,
public liability insurance, and such other insurance as Pledgee may reasonably
require with respect to the Company's properties and operations, in form,
amounts, coverages and with insurance companies consistent with the Company's
current custom and practice.
6.3. Pledgor shall cause the Company to maintain executive and
management personnel with substantially the same qualifications and experiences
as the present executive and management personnel.
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6.4. Pledgor shall defend any proceeding which seeks to, or
threatens to, affect, challenge, or impair Pledgee's security interest in the
Collateral and shall indemnify and hold Pledgee harmless from and against any
and all costs and expenses incurred in connection with any such action or
proceeding, including attorneys' fees and costs, other than any such action or
claim of a creditor or creditors of the Pledgee.
6.5. Pledgor shall, promptly upon request by Pledgee, execute and
deliver any documents or instruments, provide any notices, execute and file any
financing statements or other documents, and take any other actions which are,
in the reasonable judgment of Pledgee, necessary or desirable to perfect or
continue the perfection and first lien priority of Pledgee's security interest
in the Collateral, and to protect the Collateral against any adverse claims (in
violation of the representations and warranties in Paragraph 5, above), and pay
all reasonable costs incurred by Pledgee in connection therewith.
6.6. Pledgor shall cause all taxes, assessments, and other
obligations affecting the assets of the Company to be paid when due, subject to
the right of the Company to dispute, in good faith, any such obligations in a
timely manner.
6.7. Pledgor shall deliver to Pledgee on behalf of the Company,
within 10 days after the end of month, income and operating statements and other
financial reports in the same form as have previously been delivered to Pledgee
and which shall be certified as true and correct by a duly authorized officer of
the Company.
6.8. Pledgor shall accord Pledgee and Pledgee's representatives with
access from time to time as Pledgee and such representatives may require to all
properties owned by or over which the Company has control. Pledgee and the
Pledgee's representatives shall have the right, and Pledgor will permit the
Pledgee and such representatives from time to time as the Pledgee and such
representatives may request, to examine, inspect, copy, and make extracts from
any and all of the Company's books, records, electronically stored data, papers,
and files. Pledgor shall make all of the Company's copying facilities available
to Pledgee.
6.9. Pledgor shall pay when due all taxes, assessments, and liens,
if any, upon the Collateral. Pledgor may withhold any such payment or may elect
to contest any lien if Pledgor is in good faith conducting appropriate
proceedings to contest the obligation to pay, so long as Pledgee's interest in
the Collateral is not jeopardized. In any such contest, Pledgor shall represent
itself and Pledgee and shall satisfy any final adverse judgment before
enforcement against the Collateral. Pledgor shall name Pledgee as an additional
obligee under any surety bond furnished in the contest proceedings.
6.10. Pledgor and the Company shall not without the prior written
consent of the Pledgee:
6.10.1. permit any change in the name or structure of the
Company or alter the corporate, capital or legal structure of the Company,
including the creation or acquisition of any subsidiaries, or enter into any
transaction of merger or consolidation, or liquidate, wind-up or dissolve itself
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(or suffer any liquidation or dissolution), or convey, sell, lease, sub-lease,
encumber, transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business, property or assets, whether now
owned or hereafter acquired, or acquire by purchase or otherwise all or a
substantial portion of the business, property or assets of, or stock or other
evidence of beneficial ownership of, any person or any division or line of
business of any person;
6.10.2. create or suffer to exist any further security
interest in the Collateral;
6.10.3. sell or otherwise dispose of the Collateral or any
interest in the Collateral;
6.10.4. permit payments or distributions from the Company
other than in the ordinary course of business;
6.10.5. divert any corporate opportunity from the Company;
6.10.6. permit the Company to sell, transfer, encumber or
otherwise dispose of all or any of its assets including intangible and
intellectual property, except in the ordinary course of business in a
commercially reasonable transaction involving only unrelated and unaffiliated
parties;
6.10.7. incur any additional indebtedness other than in the
ordinary course of business in a commercially reasonable transaction involving
only unrelated and unaffiliated parties;
6.10.8. permit the Company to create, incur, assume or permit
to exist any lien on or with respect to any property or asset of any kind;
6.10.9. permit the Company to enter into, amend, restate,
modify or terminate any contracts except in the ordinary course of business in a
commercially reasonable transaction involving unrelated and unaffiliated
parties;
6.10.10. permit the Company to increase the compensation
payable to any officer or employee other than in the ordinary course of business
consistent with prior practices;
6.10.11. permit the Company to make any single item of capital
expenditure in excess of $50,000;
6.10.12. permit the Company to enter into or permit to exist
any transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with any affiliate of
Pledgor, on terms that are less favorable to such person than those that might
be obtained at the time from persons who are not such an affiliate;
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6.10.13. permit the Company to pay any dividends or make any
other distribution of assets to shareholders;
6.10.14. permit the Company to issue shares of capital stock
or other securities or options or warrants to purchase such securities;
6.10.15. permit the Company to engage in any business
activities substantially different than those in which the Company is presently
engaged;
6.10.16. permit the Company to cease operations, liquidate,
merge, transfer, acquire or consolidate with any other entity, or change the
Company's name; or
6.10.17. permit the Company to make any loans or advances or
to acquire any indebtedness.
7. EVENTS OF DEFAULT. Pledgor shall be in default under this Agreement
upon the occurrence of any of the following events:
7.1. Pledgor's breach of this Agreement, which breach is not cured
within fourteen (14) days of written notice to Pledgor of such breach.
7.2. Any amount due under the Note is not received by Pledgee on its
due date.
7.3. Any actual or attempted disposition of the Collateral in
violation of this Agreement.
7.4. The making by Pledgor of any general arrangement or assignment
for the benefit of creditors; Pledgor becoming bankrupt, insolvent or a "debtor"
as defined in 11 U.S.C. Section 101, or any successor statute or similar statute
or law in Ireland (unless, in the case of a petition filed against Pledgor, such
petition is dismissed within 30 days after its original filing); the appointing
of a trustee or receiver to take possession of substantially all of Pledgor's
assets (unless possession is restored to Pledgor within 30 days after such
taking); or the attachment, execution or judicial seizure of substantially all
of Pledgor's assets (unless such attachment, execution or judicial seizure is
discharged within 30 days after such attachment, execution or judicial seizure).
8. RIGHTS OF PLEDGEE UPON DEFAULT. Should a default occur under
Paragraph 7 above (a "Default"), Pledgee shall give Pledgeholder and Pledgor
written notice and full details of such Default. Immediately following the
receipt of such written notice of Default, Pledgeholder may exercise any of the
following remedies with regard to the Collateral on behalf of Pledgee:
8.1. Vote, grant proxies, attend shareholder meetings, nominate and
elect directors, receive dividends and other distributions to shareholders, and
otherwise exercise any rights attributable to the Shares provided that such
Default may be exercised for a maximum period of thirty (30) days from receipt
of the written notice by the Pledgeholder before the Pledgor shall exercise its
rights under and in accordance with paragraph 8.2 below.
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8.2. Cause the Shares to be transferred to Pledgee on the books of
the Company, in accordance with the Assignments or other forms executed by
Pledgor in connection with the delivery of the Shares. Provided that if Pledgor
has not committed a Default (other than under paragraph 7.2 above) under this
Agreement as a result of which Pledgee asserts that it is entitled to recover
from Pledgor an amount necessary to compensate, reimburse and/or indemnify
Pledgee for its losses, liabilities, detriment, or damages, arising from such
Default, Pledgee shall return to Pledgor the consideration received for the
Shares (as set forth in paragraph 3 of the Purchase Agreement), in the form
received by Pledgee (the "Return Consideration"), and the parties will consider
the transactions contemplated by the Purchase Agreement to be rescinded, with
effect from the date the Shares are transferred to Pledgee in accordance with
this paragraph 8.2.
If Pledgee asserts that it is entitled to recover from Pledgor the
amount necessary to compensate, reimburse and/or indemnify Pledgee for losses,
liabilities, detriment or damages arising as a result of Pledgor's Default
(other than under paragraph 7.2 above), then Pledgee may deduct from the Return
Consideration such amounts as the Pledgee determines in good faith will be
reasonable to deduct in respect of such entitlement and shall remit the balance
of the Return Consideration to Pledgor within fourteen (14) days of transfer of
the Shares to Pledgee. Payment of the Return Consideration shall be without
prejudice to:
(a) Pledgor's right to institute proceedings for the recovery of the
Return Consideration or balance of the Return Consideration not remitted to the
Pledgor and for the determination of the issue as to its liability to Pledgee
under this Agreement, and
(b) Pledgee's right to recover an amount necessary to compensate,
reimburse and/or indemnify Pledgee for any losses, liabilities, detriment or
damages arising as a result of Pledgor's Default (other than under paragraph 7.2
above).
9. RETURN OF SHARES/NOTE. Upon Pledgor's performance of all of its
obligations under this Agreement and the Note, Pledgeholder shall return the
Collateral to Pledgor and the Note marked "PAID."
10. REPRESENTATIONS AND WARRANTIES OF PLEDGOR. Pledgor represents and
warrants to Pledgee that except for the security interest created by this
Agreement, no person or entity has any right, title, interest, or claim in or to
the Collateral or any part of the Shares.
11. GOVERNING LAW. This Agreement is governed by and construed in
accordance with the laws of the State of California, irrespective of
California's choice-of-law principles.
12. FURTHER ASSURANCES. Each party to this Agreement shall execute and
deliver all instruments and documents and take all actions as may be reasonably
required or appropriate to carry out the purposes of this Agreement including,
without limitation, as follows:
12.1. Pledgor agrees that at any time, and from time to time, at
its own expense, Pledgor will promptly execute, deliver and file or record all
financing statements, instruments and documents, and will take all further
actions including, without limitation, causing the Company to so execute,
deliver, file or take other actions, in any jurisdiction that may be necessary
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or desirable, or that Pledgee reasonably may request, in order to perfect and
protect any pledge or security interest granted hereby or to enable Pledgee to
exercise and enforce its rights and remedies hereunder with respect to the
Collateral and to preserve, protect and maintain the Collateral and the value
thereof including, without limitation, payment of all taxes, assessments and
other charges imposed on or relating to the Shares. Pledgor hereby consents and
agrees that the issuers of, or obligors on, the Collateral, or any registrar or
transfer agent or trustee for any of the Shares, shall be entitled to accept the
provisions of this Agreement as conclusive evidence of the right of Pledgee to
effect any transfer or exercise any right hereunder, notwithstanding any other
notice or direction to the contrary heretofore or hereafter given by Pledgor or
any other person to such issuers or such obligors or to any such registrar or
transfer agent or trustee.
12.2. Pledgor hereby irrevocably appoints Pledgee as Pledgor's
attorney-in-fact, with full authority in the place and stead of Pledgor, and in
the name of Pledgor, or otherwise, from time to time, in Pledgee's sole and
absolute discretion to do an of the following acts or things: (a) to do all acts
and things and to execute all documents necessary or advisable to perfect and
continue perfected the security interests created by this Agreement and to
preserve, maintain and protect the Collateral; (b) to do any and every act which
Pledgor is obligated to do under this Agreement; (c) to prepare, sign, file and
record, in Pledgor's name, any financing statement covering the Collateral; and
(d) to endorse and transfer the Shares upon foreclosure by Pledgee; PROVIDED,
HOWEVER, that Pledgee shall be under no obligation whatsoever to take any of the
foregoing actions, and Pledgee shall have no liability or responsibility for any
act (other than its own gross negligence or willful misconduct) or omission
taken with respect thereto.
13. VENUE AND JURISDICTION. All actions and proceedings arising in
connection with this Agreement must be tried and litigated exclusively in the
State and Federal courts located in the County of San Diego, State of
California, which courts have personal jurisdiction and venue over each of the
parties to this Agreement for the purpose of adjudicating all matters arising
out of or related to this Agreement. Each party authorizes and accepts service
of process sufficient for personal jurisdiction in any action against it as
contemplated by this paragraph by registered or certified mail, return receipt
requested, postage prepaid, to its address for the giving of notices set forth
in this Agreement. Notwithstanding the foregoing, (a) Pledgeholder and/or
Pledgee may institute proceedings in any court of competent jurisdiction to
obtain interim relief when deemed necessary to (i) preserve the status quo, (ii)
to prevent irreparable injury pending resolution of the actual dispute between
the parties, or (iii) to order specific performance or other injunctive relief,
and (b) if the issues in dispute between Pledgee and Pledgor arising from this
Agreement are those referred to in paragraphs 8.2(a) and (b), the parties agree
that such dispute shall be resolved or adjudicated in accordance with paragraph
8.7 of the Share Sale Agreement.
14. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which is deemed an original and all of which together constitute one
document.
15. TIME OF ESSENCE. Time and strict and punctual performance are of
the essence with respect to each provision of this Agreement.
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16. ATTORNEY'S FEES. The prevailing party(ies) in any litigation,
arbitration, mediation, bankruptcy, insolvency or other proceeding
("Proceeding") relating to the enforcement or interpretation of this Agreement
may recover from the unsuccessful party(ies) all costs, expenses, and actual
attorney's fees (including expert witness and other consultants' fees and costs)
relating to or arising out of (a) the Proceeding (whether or not the Proceeding
proceeds to judgment), and (b) any post-judgment or post-award proceeding
including, without limitation, one to enforce or collect any judgment or award
resulting from the Proceeding. All such judgments and awards shall contain a
specific provision for the recovery of all such subsequently incurred costs,
expenses, and actual attorney's fees.
17. MODIFICATION. This Agreement may be modified only by a contract in
writing executed by the party to this Agreement against whom enforcement of the
modification is sought.
18. HEADINGS. The paragraph headings in this Agreement: (a) are
included only for convenience, (b) do not in any manner modify or limit any of
the provisions of this Agreement, and (c) may not be used in the interpretation
of this Agreement.
19. PRIOR UNDERSTANDINGS. This Agreement and all documents specifically
referred to and executed in connection with this Agreement: (a) contain the
entire and final agreement of the parties to this Agreement with respect to the
subject matter of this Agreement, and (b) supersede all negotiations,
stipulations, understandings, agreements, representations and warranties, if
any, with respect to such subject matter, which precede or accompany the
execution of this Agreement.
20. INTERPRETATION. Whenever the context so requires in this Agreement,
all words used in the singular may include the plural (and vice versa) and the
word "person" includes a natural person, a corporation, a firm, a partnership, a
joint venture, a trust, an estate or any other entity. The terms "includes" and
"including" do not imply any limitation. For purposes of this Agreement, the
term "day" means any calendar day and the term "business day" means any calendar
day other than a Saturday, Sunday or any other day designated as a holiday under
California Government Code Sections 6700-6701. Any act permitted or required to
be performed under this Agreement upon a particular day which is not a business
day may be performed on the next business day with the same effect as if it had
been performed upon the day appointed. No remedy or election under this
Agreement is exclusive, but rather, to the extent permitted by applicable law,
each such remedy and election is cumulative with all other remedies at law or in
equity.
21. PARTIAL INVALIDITY. Each provision of this Agreement is valid and
enforceable to the fullest extent permitted by law. If any provision of this
Agreement (or the application of such provision to any person or circumstance)
is or becomes invalid or unenforceable, the remainder of this Agreement, and the
application of such provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, are not affected by such invalidity
or unenforceability unless such provision or the application of such provision
is essential to this Agreement.
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22. SUCCESSORS-IN-INTEREST AND ASSIGNS. Pledgor may not voluntarily or
by operation of law assign, hypothecate, delegate or otherwise transfer or
encumber all or any part of its rights, duties or other interests in this
Agreement without the prior written consent of Pledgee, which consent may be
withheld in Pledgee's sole and absolute discretion. Any such transfer in
violation of this paragraph is void. Subject to the foregoing and any other
restrictions on transferability contained in this Agreement, this Agreement is
binding upon and inures to the benefit of the successors-in-interest and assigns
of each party to this Agreement.
23. NOTICES. All notices or other communications required or permitted
to be given to a party to this Agreement shall be in writing and shall be
personally delivered, sent by certified mail, postage prepaid, return receipt
requested, or sent by an overnight express courier service that provides written
confirmation of delivery, to such party at its address as set forth above in the
introductory Paragraph of this Agreement. Each such notice or other
communication shall be deemed given, delivered and received upon its actual
receipt, except that if it is sent by mail in accordance with this Paragraph,
then it shall be deemed given, delivered and received three days after the date
such notice or other communication is deposited with the United States Postal
Service in accordance with this Paragraph. Any party to this Agreement may give
a notice of a change of its address to the other party(ies) to this Agreement.
Notice to Pledgeholder shall be to Xxxxxx X. Xxxxx, Esq., Xxxxxxx Xxxx
Seidenwurm & Xxxxx, 000 X Xxxxxx, Xxxxx 0000, Xxx Xxxxx, XX 00000.
24. WAIVER. Any waiver of a default or provision under this Agreement
must be in writing. No such waiver constitutes a waiver of any other default or
provision concerning the same or any other provision of this Agreement. No delay
or omission by a party in the exercise of any of its rights or remedies
constitutes a waiver of (or otherwise impairs) such right or remedy. A consent
to or approval of an act does not waive or render unnecessary the consent to or
approval of any other or subsequent act.
25. DRAFTING AMBIGUITIES. Each party to this Agreement and its legal
counsel have reviewed and revised this Agreement. The rule of construction that
ambiguities are to be resolved against the drafting party or in favor of the
party receiving a particular benefit under an agreement may not be employed in
the interpretation of this Agreement or any amendment to this Agreement.
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26. SURVIVAL. The covenants, conditions, representations and warranties
of this Agreement shall survive the execution of this Agreement.
SVI HOLDINGS, INC., a Nevada corporation
By: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx, President
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KIELDUFF INVESTMENTS LIMITED, an Ireland company
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx, Director
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I ACCEPT THE OBLIGATIONS IMPOSED UPON ME UNDER THIS PLEDGE
AGREEMENT:
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, Esq., Pledgeholder
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