A MORTGAGE made on March 24, 1998
BETWEEN
UNIDIGITAL INC. (the "Mortgagor"), a company incorporated
under the laws of the State of Delaware (registered number ) and whose
registered office is at 545 West 45th Street, New York, New York 10036
and
CANADIAN IMPERIAL BANK OF COMMERCE (the "Administrative Agent"
pursuant to the Credit Agreement, dated as of March 24, 1998 among Unidigital
Inc., the several lenders from time to time party thereto, and the
Administrative Agent (the "Credit Agreement")) of 425 Lexington Avenue, New
York, New York 10017.
IT IS AGREED as follows
INTERPRETATION
1.1 In this Mortgage:
"Original Securities" means:
the securities listed in Schedule 1, which are all registered
in the name of the Mortgagor;
"Sale Event" means any of the events mentioned in clause 8.1;
"Secured Amounts" means the moneys and liabilities which the
Mortgagor covenants in clause 2 to pay or discharge; and references to the
Secured Amounts include (save in clauses 4.3 and 10.1) references to any part of
them;
"Security Shares" means the Original Securities and all and
any other shares, securities, rights, moneys and property for the time being
mortgaged or charged to the Administrative Agent pursuant to clause 3;
"Security Interest" means any mortgage, charge, pledge, lien,
right of set off or any security interest, howsoever created or arising;
references to the Original Securities or to the Security
Shares include references to any of them; and
"mortgage" includes a transfer or assignment by way of
mortgage.
1.2 Clause headings are for ease of reference only and shall
not affect the interpretation of this Mortgage.
1.3 References in this Mortgage to any statute or other
legislative provision shall include any statutory or legislative modification or
re-enactment thereof, or any substitution therefor.
1.4 References to the Mortgagor or the Administrative Agent
include references to any person for the time being deriving title under each of
them respectively.
1.5 References to this Mortgage are references to the same as
from time to time varied, supplemented or amended in any manner or respect
whatsoever, and in particular by variations which increase or otherwise affect
the liability of the Mortgagor.
COVENANT TO PAY SECURED AMOUNTS
2.1 The Mortgagor covenants with the Administrative Agent that
it will on demand pay to the Administrative Agent and discharge all moneys and
liabilities whatsoever which now are or at any time hereafter (whether on or
after any such demand) may become due, owning or payable, in any currency, to
the Administrative Agent by the Mortgagor, actually or contingently, solely or
jointly and/or severally with another or others, as principal or surety, on any
current or other account, with reference to any bill, note or other security, in
connection with any advance, loan, credit, instrument, guarantee or indemnity
made or issued to, for or at the request of the Mortgagor or in any other manner
whatsoever, including all amounts which may become payable or for which the
Mortgagor may become liable under this Mortgage and all commission, discount and
all banking, legal and other costs, charges and expenses whatsoever (on a full
indemnity basis) and also all losses and damages that may be sustained, suffered
or incurred by the Administrative Agent arising out of or in connection with any
act, matter or thing done or to be done by the Mortgagor under this Mortgage or
any document, arrangement or agreement between the Mortgagor and the
Administrative Agent or any disclaimer of any of its contracts, agreements or
arrangements or any of its liabilities or obligations to the Administrative
Agent, and interest on the foregoing from the date of demand for payment being
made until the date of actual payment or discharge.
2.2 Interest under clause 2.1 shall be payable at such rate or
rates and upon such terms as may from time to time be agreed, and interest shall
be computed and compounded according to the usual practice fro the time being of
the Administrative Agent and shall be payable as well after as before any demand
made, judgment obtained or liquidation or administration of the Mortgagor.
MORTGAGE
3.1 The Mortgagor, with full title guarantee, hereby assigns
and transfers absolutely by way of the first fixed mortgage and agrees to
mortgage and charges and agrees to charge to the Administrative Agent as a
continuing security for the payment and discharge of the Secured Amounts:
(a) the Original Securities; and
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(b) all other securities and all rights, moneys (including,
without limitation, dividends) and property whatsoever which may from time to
time at any time be derived from, accrue on or be offered in respect of the
Original Securities whether by way of redemption, exchange, conversion, rights,
bonus, capital reorganisation or otherwise howsoever, but in each case so that
the covenants implied by the Law of Property (Miscellaneous Provisions) Act 1994
(the "LP (MP) Act") in the mortgages and charges contained in or created
pursuant to this Mortgage, are construed with the omission of:
(A) the words "other than any charges, encumbrances or rights
which that person does not and could not reasonably be expected to know about"
in section 3(1) LP MP Act; and
(B) section 6 (2) LP (MP) Act.
3.2 The Mortgagor shall procure that as soon as is practicable
all the Original Securities and as soon as is practicable all and any other
registered or registrable Security Shares shall be transferred to and registered
in the name of the Administrative Agent (or such nominee as the Administrative
Agent may direct) to be held on trust for the Administrative Agent.
CONTINUING AND PRIMARY SECURITY
4.1 This Mortgage shall be a continuing security, and shall be
in addition to and shall not affect any continuing liens or other Security
Interests to which the Administrative Agent is or will be entitled on such of
the certificates or other documents of title to the Security Shares as may have
been or may be deposited with or to the order of the Administrative Agent, which
liens and other Security Interests shall remain in force independently of this
Mortgage.
4.2 The Security Shares are hereby deposited and mortgaged to
the Administrative Agent as primary and not as collateral security. Although, as
between the Mortgagor and a third party, the Mortgagor may be only a surety for
the third party in respect of the Secured Amounts and the Security Shares may be
only a secondary or collateral security, nevertheless, as between the Mortgagor
and the Administrative Agent, the Mortgagor shall be deemed to be a principal
debtor, and the Security Shares shall be deemed to be a principal security for
the Secured Amounts.
4.3 The liabilities and obligations of the Mortgagor under
this Mortgage and the security constituted by this Mortgage shall remain in
force notwithstanding any act, omission, neglect, event or matter whatsoever,
except the proper and valid payment and discharge of all the Secured Amounts
and, subject to clause 4.4 below, an absolute discharge or release of the
Mortgagor signed by the Administrative Agent; and without prejudice to its
generality, the foregoing shall apply in relation to anything which would have
discharged the Mortgagor (wholly or in part) or which would have afforded the
Mortgagor any legal or equitable defence, and in relation to any winding up or
dissolution of, or any change in constitution or corporate identity or loss or
of corporate identity by, the Mortgagor, or any
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other person; and, in addition, the Mortgagor further covenants with the
Administrative Agent that if, by reason of any moneys or liabilities expressed
or intended to be guaranteed to the Administrative Agent by the Mortgagor not
being legally recoverable from such third party or for any other reason
whatsoever, such moneys or liabilities (or any part of them) would not be
recoverable from the Mortgagor as a surety then (notwithstanding that it was
known to the Administrative Agent) they shall be fully recoverable from the
Mortgagor as sole, original and independent obligor and the Mortgagor will pay
or discharge them to the Administrative Agent upon demand.
4.4 Any such discharge or release referred to in clauses 4.3
or 10.1 and any composition or arrangement which the Mortgagor may effect with
the Administrative Agent, shall be deemed to be made subject to the condition
that it will be void, if any payment or security which the Administrative Agent
may previously have received or may thereafter receive from any person in
respect of the Secured Amounts is set aside under any applicable law or proves
to have become or been for any reason invalid.
4.5 Without prejudice to the generality of clause 4.3, none of
the liabilities or obligations of the Mortgagor under this Mortgage shall be
impaired, and the security constituted by this Mortgage shall not be impaired,
by the Administrative Agent:
(a) releasing or granting any time or any indulgence
whatsoever to the Mortgagor or any other person and, in particular, entering
into any transaction or arrangements whatsoever with or in relation to the
Mortgagor and/or any third party;
(b) taking, accepting, varying, dealing with, enforcing,
abstaining from enforcing, surrendering or releasing any security for the
Secured Amounts in such manner as it thinks fit, or claiming, proving for,
accepting or transferring any payment in respect of the Secured Amounts in any
composition by, or winding up of, the Mortgagor, and/or any third party or
abstaining from so claiming, proving, accepting or transferring.
4.6 Rights may be exercised and demands may be under this
Mortgage from time to time, and the liabilities and obligations of the Mortgagor
and the rights and security contained in this Mortgage under this Mortgage may
be exercised and enforced, irrespective of:
(a) whether any demands, steps or proceedings are being or
have been taken against the Mortgagor and/or any third party; or
(b) whether or in what order any security to which the
Administrative Agent may be entitled in respect of the Secured Amounts is
enforced.
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WARRANTIES AND UNDERTAKINGS
5.1 The Mortgagor represents and warrants that:
(a) it is the sole legal and beneficial owner of all the
Original Securities free of all Security Interests, encumbrances, trusts,
equities and claims whatsoever (save under this Mortgage) and that all the
Original Securities are fully paid up;
(b) it is or will be at such later time at which the relevant
Security Shares (other than the Original Securities) become the subject of this
Mortgage the sole legal and beneficial owner of all the Security Shares (other
than the Original Securities) free from all Security Interests, encumbrances,
trusts, equities and claims whatsoever (save under this Mortgage) and that all
the Security Shares are or will at such date be fully paid-up;
(c) the Original Securities are all currently registered
in the name of the Mortgagor; and
5.2 The Mortgagor undertakes that, for so long as any Secured
Amounts remain outstanding, it shall:
(a) pay to the Administrative Agent, upon demand, the amount
of all expenses which it may incur in, about or with a view to perfecting or
enforcing this security or otherwise in connection with this security, together
with interest on the amount of any payments made by the Administrative Agent in
respect of such expenses in accordance with clause 2.2 from the date of payment
until the date of repayment and as well after as before judgment and so that any
amount payable hereunder may be debited to any account of the Mortgagor with the
Administrative Agent;
(b) promptly pay all calls, instalments and other payments
which may be made or become due in respect of the Security Shares and so that,
in the event of default by the Mortgagor, the Administrative Agent may do so on
behalf of the Mortgagor and clause 5.2(a) shall apply accordingly;
(c) forthwith sign, seal, deliver and complete all transfers,
renunciations, proxies, mandates, assignments, deeds and documents and do all
acts and things which the Administrative Agent may, in its absolute discretion,
at any time and from time to time specify:
(i) for enabling or assisting the Administrative
Agent to perfect or improve its title to and security over the Security
Shares;
(ii) to vest the Security Shares in the
Administrative Agent or its nominee or nominees;
(iii) to exercise (or enable its nominee or nominees
to exercise) any rights or powers attaching to the Security Shares;
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(iv) (after the occurrence of a Sale Event) to sell
or dispose of the Security Shares; or
(v) otherwise to enforce any of the rights of the
Administrative Agent under or in connection with this Mortgage;
(d) not (without the written consent of the Administrative
Agent):
(i) create or permit to exist over all or part of the
Security Shares (or any interest therein) any Security Interest (other than
this Mortgage) whether ranking prior to, pari passu with or behind the
security contained in this Mortgage;
(ii) sell, transfer or otherwise dispose of the
Security Shares or any interest therein or attempt or agree to so dispose;
or
(iii) permit any person other than the Mortgagor to
be registered as or become the holder of the Security Shares;
(e) forward to the Administrative Agent all notices, reports,
accounts, circulars and other documents relating to the Security Shares or which
are sent to the holders of the Security Shares as soon as they are received;
(f) take such action as the Administrative Agent may in its
absolute discretion direct, in respect of any proposed compromise, arrangement,
capital reorganisation, conversion, exchange, repayment or take-over offer
affecting or in respect of the Security Shares or any of them or any proposal
made for varying or abrogating any rights attaching to the Security Shares or
any of them;
(g) indemnify the Administrative Agent (and any of its
nominees) on demand from and against all losses, actions, claims and liabilities
which any of them may incur as holders of the Security Shares or any interest in
the Security Shares; and
(h) ensure that other registered Security Shares which are not
registered in the name of the Mortgagor or the Administrative Agent (or its
nominee) are at all times registered in the names of persons who have executed
declarations of trust in favour of the Mortgagor and the Administrative Agent in
such forms as the Administrative Agent may specify, being (if at any time the
Administrative Agent so requires) persons nominated by the Administrative Agent.
DIVIDENDS AND VOTING
6.1 Until a Sale Event shall have occurred, then:
(a) all and any cash dividends paid in respect of the Security
Shares or any of them received by the Agent (or its nominee) shall, on request
by the Mortgagor, be released to the Mortgagor; and
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(b) subject to clause 5.2(f), the Administrative Agent will
exercise all voting and other rights and powers attached to the Security Shares
as the Mortgagor may from time to time in writing reasonably direct, and the
Administrative Agent shall instruct any nominee for the time being registered as
holder for the Security Shares accordingly.
6.2 Subject to clause 6.1:
(a) all and any dividends and other distributions accruing on
or deriving from the Security Shares (notwithstanding that they may have accrued
in respect of an earlier period) shall:
(i) if received by the Mortgagor (or any nominee
of the Mortgagor) be held on trust and forthwith paid and transferred to
the Administrative Agent; and
(ii) when and if received by the Administrative Agent
(or its nominee) shall form part of the Security Shares and be held by the
Administrative Agent on the terms of this Mortgage as additional security
(and, if cash, be paid into a cash collateral deposit account and may be
applied by the Administrative Agent at any time and from time to time
thereafter in or towards the discharge of the Secured Amounts as the
Administrative Agent thinks fit);
(b) the Administrative Agent may from time to time exercise
(and may from time to time direct the exercise of) all voting and other rights
and powers (by statute or otherwise) attached to or conferred on the Security
Shares in such manner as the Administrative Agent (in its absolute discretion)
thinks fit and the Mortgagor shall, and shall procure that any nominee of the
Mortgagor shall, comply with any such directions of the Administrative Agent;
and
(c) the Mortgagor shall (and shall procure that any nominee of
the Mortgagor shall) forthwith agree to accept short notice for and to attend
all or any meetings or class meetings of the holders of the Security Shares, to
appoint proxies and exercise all voting and other rights and powers which may at
any time be exercisable by the holders of the Security Shares as the
Administrative Agent may from time to time direct.
6.3 The rights and powers attached to the Security Shares
shall, for the purposes of clause 6.2(b), include (without limitation) all
powers given to trustees by sections 10(3) and 10(4) of the Trustee Act 1925 (as
amended) in respect of securities subject to a trust and shall be exercisable
without any need for any further consent of authority of the Mortgagor.
POWER OF ATTORNEY
7. The Mortgagor hereby irrevocably and by way of security for
the payment by it of the Secured Amounts and the performance of its obligations
under this Mortgage appoints the Administrative Agent as its true and lawful
attorney (with full power to appoint substitutes and to sub-delegate) on behalf
of the Mortgagor and in the Mortgagor's
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own name or otherwise, at any time and from time to time, to sign, seal, deliver
and complete all transfers, renunciations, proxies, mandates, assignments, deeds
and documents and do all acts and things which the Administrative Agent may, in
its sole and absolute discretion, consider to be necessary or advisable to
perfect or improve its security over the Security Shares or to give proper
effect to the intent and purposes of this Mortgage or to enable or assist in any
way in the exercise of any power of sale of the Security Shares (whether arising
under this Mortgage or implied by statute or otherwise).
SALE
8.1 The following shall constitute Sale Events under this
Mortgage:
(a) if the Mortgagor fails to pay on demand any of the
Secured Amounts or any sum due to the Administrative Agent, under this Mortgage
or otherwise;
(b) if the Mortgagor otherwise fails to comply with any of its
obligations under this Mortgage; or
(c) if an Event of Default under the Credit Agreement has
occurred and is continuing.
8.2 On the occurrence of a Sale Event, the Secured Amounts
shall become due and on or any time after the occurrence of a Sale Event and
without prior notice to the Mortgagor, the Administrative Agent exercise all the
powers and rights of a mortgagee conferred by statute or otherwise and (without
prejudice to the generality of the foregoing) may sell or otherwise dispose (and
instruct any nominee of the Administrative Agent or the Mortgagor to sell or
otherwise dispose) of all the title to and interest in the Security Shares or
(as the Administrative Agent may elect and without prejudice to any later
exercise of this power) the whole or part of the equitable interest divested of
the legal title for such consideration (which may comprise or include shares or
debentures), upon such terms and generally in such manner as the Administrative
Agent may, in its sole and absolute discretion, think fit.
8.3 The provisions of the Law of Property Act 1925 (or any
statutory re-enactment, variation or modification thereof or any law of similar
effect in any jurisdiction) relating to the power of sale conferred by that Act
are hereby varied so that section 103 shall not apply, and such provisions are
hereby extended as set out in clause 8.2.
8.4 The Administrative Agent shall not be liable for any loss
or damage occasioned by any sale or disposal of the Security Shares (or interest
therein) or arising out of the exercise of or failure to exercise any of its
powers under this Mortgage or for any neglect or default to pay any instalment
or accept any offer or notify the Mortgagor of any such matter or for any other
loss of any nature whatsoever in connection with the Security Shares.
8.5 The Administrative Agent shall be entitled to apply moneys
arising from the exercise of its powers under this Mortgage or in respect of the
Secured Amounts towards
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the discharge of the Secured Amounts in such manner and order as the
Administrative Agent may in its sole and absolute discretion think fit, with
(subject to any rights of set off, combination or retention) any surplus being
paid to the Mortgagor or any other person who may be entitled to it.
8.6 All moneys from time to time received by the
Administrative Agent from the Mortgagor or any person or persons in respect of
the Secured Amounts or otherwise on the realisation or enforcement of the
security contained in this Mortgage may be applied by the Administrative Agent
either as a whole or in such proportion as the Administrative Agent shall think
fit to any account or item of account or any transaction and, without
limitation, the Administrative Agent may in its absolute discretion at all times
pending the payment to the Administrative Agent of all the Secured Amounts place
and keep to the credit of a separate or suspense account any money received by
the Administrative Agent from the Mortgagor or such other persons for so long
and in such manner as the Administrative Agent may determine without any
obligation to apply the same or any part thereof in or towards the discharge of
any of the Secured Amounts.
OTHER SECURITY ETC.
9.1 Section 93 of the Law of Property Act 1925 (restricting
rights of consolidation of mortgages) (or any statutory re-enactment, variation
or modification thereof or any law of similar effect in any jurisdiction) shall
not apply in relation to this Mortgage.
9.2 This security is in addition to and shall not affect or be
merged in any bills, notes, guarantees, indemnities, undertakings, Security
Interests, or other security whatsoever which Administrative Agent may hold now
or hereafter in connection with the Secured Amounts or the obligations of any
other person liable for any of the Secured Amounts and the Administrative Agent
shall be under no obligation to take any steps to call in or to enforce any
security for the Secured Amounts or the obligations of any other person liable
for any of the Secured Amounts and shall not be liable to the Mortgagor or any
other person for any loss arising from any omission on the part of the
Administrative Agent to take any such steps or for the manner in which the
Administrative Agent shall enforce or refrain from enforcing any such security.
9.3 Without prejudice to clause 5.2(d) (restriction on
Security Interests), if the Administrative Agent receives notice of any Security
Interest or any other interest affecting the Security Shares:
(a) the Administrative Agent may open a new account with the
Mortgagor and, if it does not, it shall nevertheless be deemed to have done so
at the time it received such notice; and
(b) all payments received by the Administrative Agent from the
Mortgagor or, in respect of the Secured Amounts, from any other person after the
Administrative Agent receives such notice shall be credited or deemed to have
been credited to the new account, and
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in no circumstances whatsoever shall operate to reduce the Secured Amounts as at
the time the Administrative Agent received such notice.
9.4 If there are any Security Interests having priority to the
security contained in this Mortgage in respect of all or any part of the
Security Shares then:
(a) if any proceedings or steps are being taken to exercise or
enforce any powers or remedies conferred by such prior Security Interest against
the Security Shares, the Administrative Agent may (but without prejudice to any
rights the Administrative Agent may have under statute or otherwise) redeemed
such prior Security Interest or procure the transfer thereof to itself and may
settle and pass the accounts of the prior charges and any accounts so settled
and passed shall be conclusive and binding on the Mortgagor and the principal,
interest, costs, charges and expenses of and incidental to such redemption or
transfer shall be paid to the Administrative Agent on demand with interest in
accordance with clause 2.2 and, until payment, the Security Shares shall stand
as a security for the amount to be paid; and
(b) all the powers, authorities and discretions conferred by a
prior Security Interest upon the chargee or any receiver thereunder shall be
exercisable by the Administrative Agent in like manner as if the same were
expressly included herein and the Administrative Agent shall be entitled to
exercise all the powers, authorities and discretions of an administrative
receiver, receiver, manager or receiver and manager appointed thereunder.
9.5 If the Mortgagor has more than one account with the
Administrative Agent, the Administrative Agent may, at any time and without
prior notice to the Mortgagor, transfer all or part of any credit balance on any
such account to any other account which may then be in debit or otherwise apply
the credit balance in or towards satisfying the Secured Amounts, whether or not
the credit balance and the account in debit or the Secured Amounts are expressed
in the same currency, and the Administrative Agent is hereby authorised to
effect any necessary conversions at its prevailing rates of exchange.
REASSIGNMENT
10.1 At such time as the Mortgagor has no further obligations,
(actual or contingent, present or future, joint or several) to the
Administrative Agent and none of the Secured Amounts remains outstanding, the
Administrative Agent shall at the request and cost of the Mortgagor execute such
documents and procure that its nominees execute such documents as the Mortgagor
may reasonably request and which may be required to reassign (subject to the
provisions of clause 4.4) all its then right, title and interest in and to such
of the Security Shares then held by the Administrative Agent (or its nominee) to
the person entitled to the Security Shares.
10.2 If the Administrative Agent or its nominee or nominees
shall be required to transfer the Security Shares pursuant to clause 10.1 or
otherwise, the Administrative Agent may require the transferee to accept
delivery, transfer or registration of other securities of the
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same type, class and denomination in lieu of the Security Shares and ensure that
its nominees (if any) do likewise.
EXPENSES AND INDEMNITY
11.1 The Mortgagor further covenants with the Administrative
Agent to reimburse or pay to the Administrative Agent (on the basis of a full
indemnity) the amount of all costs (including legal costs), charges and expenses
incurred by the Administrative Agent in connection with:
(a) the preparation, registration or perfecting of this
Mortgage (or the security therein contained), or any other document entered into
between the Mortgagor and the Administrative Agent;
(b) the exercise, or the attempted or purported exercise, or
the consideration of the exercise, by or on behalf of the Administrative Agent
of any of the powers of the Administrative Agent, and the enforcement,
preservation or attempted preservation of this Mortgage or the Security Shares
of any other action taken by or on behalf of the Administrative Agent with a
view to or in connection with the recovery by the Administrative Agent of the
Secured Amounts from the Mortgagor or any other person; and
(c) the carrying out or consideration of any other act or
matter which the Administrative Agent may consider to be for the preservation,
improvement or benefit of the Security Shares.
11.2 The Mortgagor hereby agrees to indemnify the
Administrative Agent against all losses, claims, costs (including legal costs)
expenses, demands and liabilities whether in contract, tort, or otherwise now or
hereafter sustained or incurred by the Administrative Agent or by any person for
whose liability, act or omission the Administrative Agent may be answerable for
or in connection with anything done or omitted under this Mortgage or any other
document, agreement or arrangement entered into between the Mortgagor and the
Administrative Agent or in the exercise or purported exercise of the powers
herein contained or occasioned by any breach by the Mortgagor or any of its
covenants or other obligations to the Administrative Agent or in consequence of
any payment in respect of the Secured Amounts (whether made by the Mortgagor or
a third person) being declared void or impeached for any reason whatsoever.
11.3 Any amounts for which the Company shall be liable under
sub-clauses 11.1 or 11.2 shall be payable on demand and shall bear interest in
accordance with clause 2.2 from the dates or dates on which they were paid,
incurred or charged by the Administrative Agent and such amounts and interest
may be debited by the Administrative Agent to any account of the Mortgagor, but
shall, in any event, form part of the Secured Amounts and accordingly be secured
on the Security Shares under the Security contained in this Mortgage.
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11.4 All sums of whatsoever nature which are payable by the
Mortgagor under this Mortgage and which are now or at any time hereafter become
subject to Value Added Tax or any similar tax shall be deemed to be exclusive of
Value Added Tax or any similar tax and the Mortgagor in addition to such sums
will indemnify the Administrative Agent from and against all claims and
liabilities whatsoever in respect thereof.
FURTHER PROVISIONS
12.1 The Administrative Agent may at any time and from time to
time without notice and notwithstanding any settlement of account or other
matter whatsoever combine or consolidate all or any of its existing accounts
including accounts in the name of the Administrative Agent or of the Mortgagor
jointly with others and may set off or transfer any credit balance or any sum
standing to the credit of any account (whether or not the same is due to the
Mortgagor by the Administrative Agent and whether or not the credit balance and
the account in debit or the Secured Amounts are expressed in the same currency)
in or toward satisfaction of any of the Secured Amounts and may in its absolute
discretion estimate the amount of any liability of the Mortgagor which is
contingent or unascertained and thereafter set off such estimated amount and no
amount shall be payable by the Administrative Agent to the Mortgagor unless and
until all Secured Amounts have been ascertained and fully repaid or discharged.
12.2 If any amount is received or recovered by the
Administrative Agent in respect of the Secured Amounts (whether pursuant to a
judgment or otherwise) in a currency (the "other currency") other than the
currency in which the Secured Amounts are payable (the "original currency"),
then the Administrative Agent may convert the other currency into the original
currency and the Administrative Agent shall calculate the amount of the original
currency it would have received if the other currency was used to purchase the
original currency on the date of receipt or recovery and if such amount is less
than the amount payable by the Mortgagor in the original currency, the
Mortgagor, as a separate and independent obligation shall indemnify the
Administrative Agent against any loss sustained by the Administrative Agent as a
result (including any premium, commission, transfer or other costs incurred or
charged by the Administrative Agent).
12.3 If the Mortgagor fails to pay or discharge any part of
the Secured Amounts when due, the Administrative Agent from time to time may
purchase an amount of the currency in which such sum is due with any other
currency or currencies and the Mortgagor's obligation thereafter shall be to pay
to the Administrative Agent the amount of the other currency or currencies so
purchased.
12.4 Any document required to be executed under the seal of
the Administrative Agent under or in connection with this Mortgage shall be
validly executed if executed under the seal of a duly authorised attorney of the
Administrative Agent.
12.5 Any notice or demand under this Mortgage to or upon the
Mortgagor shall be in writing and shall be deemed to have been properly served
upon the Mortgagor if
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delivered personally or if sent by telex, rapifax or prepaid first-class letter
post to its registered office for the time being or to any one of its principal
places of business for the time being. Any such notice or demand:
(a) which is sent by telex or rapifax, shall be deemed to have
been properly served upon the Mortgagor two hours after the time of dispatch;
(b) which is sent by first-class prepaid letter post and is
posted before the last collection of letters from the letter box in which it was
posted has been made on any day, shall be deemed to have been properly served
upon the Mortgagor at 10:00 a.m. on the next succeeding day upon which a
delivery of letters is made.
12.6 In any action, proceedings or claim relating to this
Mortgage or the security contained in this Mortgage, a statement as to any
amount due to the Administrative Agent or of the Secured Amounts or any part
thereof which is certified as being correct by an officer of the Administrative
Agent shall, save in the case of manifest error, be conclusive evidence that
such amount is in fact due and payable.
12.7 The rights of the Administrative Agent are cumulative,
may be exercised as often as it considers appropriate and are in addition to its
rights under general law; and the rights of the Administrative Agent (whether
arising under this Mortgage or under general law) shall not be capable of being
waived or varied otherwise than by express waiver or variation in writing; and,
in particular, any failure to exercise or any delay in exercising any such
rights shall not operate as a variation or waiver of that or any other such
right; any defective or partial exercise of such rights shall not preclude any
other or further exercise of that or any other such right; and no act or course
of conduct or negotiation on its part or on its behalf shall in any way preclude
it from exercising any such right or constitute a suspension or variation of any
such right.
12.8 If any provisions of this Mortgage become invalid,
illegal or unenforceable in any respect under any law, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired but shall remain in full force and effect.
12.9 The Administrative Agent may assign all or any of its
rights under this Mortgage and any successor to or assignee of the
Administrative Agent shall be entitled to the full benefits of this Mortgage and
this Mortgage shall remain valid and enforceable notwithstanding any change in
the name, composition or constitution of the Administrative Agent nor any
amalgamation or consolidation with any other company.
12.10 This Mortgage is governed by, and shall be construed in
accordance with, the law of England.
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12.11 The Mortgagor and the Administrative Agent agree that
the courts of England are to have non-exclusive jurisdiction over any matter
which may be in dispute under this Mortgage, and the Mortgagor irrevocably
submits to the jurisdiction of such court.
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DULY DELIVERED AS A DEED by UNIDIGITAL INC. on the date inserted above.
EXECUTED as a DEED under the )
COMMON SEAL of UNIDIGITAL INC. )
in the presence of: )
Director:/s/ William E. Dye
---------------------------------------
Assistant Secretary:/s/ Peter Saad
--------------------------------------
OR
EXECUTED as a DEED by )
UNIDIGITAL INC. acting by two )
Directors/Director and the Secretary )
Director:
---------------------------------------
Secretary:
--------------------------------------
/s/ William J. Koslo
- -----------------------------------------------------
for and on behalf of CANADIAN IMPERIAL BANK OF
COMMERCE
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SCHEDULE 1
AMOUNT OR
NUMBER OF SECURITY DESCRIPTION OF REGISTERED SECURITY
668 SHARES @(pounds)0.01 Certificate No. 10