SECOND WAIVER AND AMENDMENT AGREEMENT (this "Waiver Agreement") dated as of
October 1, 1997 by and among Unidigital Elements (NY), Inc., Unison (NY), Inc.
(formerly known as Unidigital/Cardinal Corporation), Unidigital Elements (SF),
Inc. and Unison (MA), Inc. (the successor by merger to Unidigital/Xxxxx
Corporation), (collectively, the "Borrowers"), Unidigital Inc. (the "Company"),
and The Chase Manhattan Bank (the "Lender"). Terms used herein as defined terms
and not otherwise defined herein shall have the meanings given thereto in that
certain Credit Agreement dated as of April 3, 1997 by and between the Borrowers
and the Lender, as amended by that Waiver And Amendment Agreement dated as of
July 1, 1997 by and between such parties.
WHEREAS, without the prior written consent of the Lender, Unidigital/Xxxxx
Corporation, a Massachusetts corporation ("UBC"), has been merged (the "Xxxxx
Merger") into Unison (MA), Inc., a Delaware corporation ("UMA"), with UMA as the
surviving corporation and transferee of all of the assets and as successor to
all of the obligations of UBC;
WHEREAS, without the prior written consent of the Lender,
Unidigital/Cardinal Corporation, a Delaware corporation ("Cardinal"), has
changed its name to Unison (NY), Inc. (the "Cardinal Name Change") (the Xxxxx
Merger and the Cardinal Name Change are hereinafter collectively referred to as
the "Transactions");
WHEREAS, the Transactions may constitute violations inter alia of Section
6.03 and 6.10 of the Credit Agreement, Section 2.02(d) of the Security Agreement
and/or Section 2.03(b) of the Pledge Agreement; and
WHEREAS, the Lender is willing to waive such violation or violations
subject to the terms and conditions hereof;
NOW, THEREFORE, WITNESSETH, that for good and valuable consideration, the
receipt of which the parties hereby acknowledge, the parties hereto agree as
follows:
1. The Lender hereby waives the application of those provisions of the
Credit Agreement, the Security Agreement and the Pledge Agreement that would
otherwise prohibit the Transactions.
2. The waivers herein granted by the Lender shall be conditioned upon and
shall not become effective unless and until the Borrowers and the Company shall
have delivered the following to the Lender:
(i) Amended $4,500,000 Revolving Credit Note of the Borrowers,
substantially in the form of Exhibit A hereto;
(ii) Amended $3,850,000 Line Loan Note of the Borrowers, substantially
in the form of Exhibit B hereto;
(iii) Supplement to Security Agreement, made by UMA, substantially in
the form of Exhibit C hereto;
(iv) (a) Financing statements on Forms UCC-l naming UMA as debtor, and
the Lender as creditor, substantially in the form of Exhibit D-l hereto;
and
(b) Financing statements on Form UCC-3 naming Xxxxx as debtor,
and the Lender as creditor, and describing the Xxxxx Merger,
substantially in the form of Exhibit D-2 hereto;
(v) Supplement to Pledge Agreement, made by the Company, substantially
in the form of Exhibit E hereto;
(vi) Certificate(s), with endorsed stock power(s) in blank,
representing all of the outstanding shares of UMA as issued by UMA to the
Company;
(vii) Financing statements on Form UCC-3 naming Cardinal as debtor,
and the Lender as creditor, and describing the Name Change, in
substantially the form of Exhibit F hereto;
(viii) Property insurance certificate(s) naming UMA as the insured and
the Lender as loss payee as its interest may appear and general liability
insurance certificate(s) naming the Lender as an additional insured;
(ix) Certificate(s) of the Secretary or Assistant Secretary of each of
Unison (NY), Inc. and UMA certifying the relevant charter documents
pursuant to which the Transactions were effected; and
(x) Opinion of Xxxxxxxx Xxxxxxxxx, substantially in the form of
Exhibit G hereto.
3. (a) The Credit Agreement is hereby amended so that each reference
therein to Xxxxx shall be deemed to be a reference to UMA and each reference to
Cardinal shall be deemed to be a reference to Unison (NY), Inc.
(b) UMA hereby confirms that as successor by merger to Xxxxx it is bound
by, and hereby confirms that it is a party to (and a "Borrower") under, the
Credit Agreement for all purposes as if it were an original "Borrower"
thereunder, including, without limitation, its joint and several liability as a
"Borrower" under the Credit Agreement and
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under the promissory notes referred to in Section 2(i) and (ii) hereof for any
Loans outstanding (and accrued interest thereon) as of the date hereof to any of
the Borrowers.
(c) The Company hereby agrees and confirms that its undertakings under the
Guarantee Agreement apply to all of the obligations of the Borrowers as such
term is amended hereby.
(d) The Schedules to the outstanding Revolving Credit Note and Line Loan
Note may be attached by the Lender to the amendments thereof referred to in
Sections 2(i) and (ii).
4. This Waiver Agreement and the rights and obligations of the parties
hereunder shall be construed in accordance with and shall be governed by the
laws of the State of New York applicable to contracts made and to be performed
entirely within such State, without reference to conflict of laws principles.
5. This Waiver Agreement may be executed in counterparts, each of which
when so executed and delivered (including by facsimile transmission of a signed
counterpart) shall be deemed to be an original and all of which taken together
shall constitute but one and the same instrument.
6. Except as expressly set forth herein, the Credit Agreement as heretofore
amended shall remain in full force and effect, and the Credit Agreement as
amended hereby is hereby ratified and confirmed by the Borrowers.
7. This Waiver Agreement shall constitute an additional Loan Document.
8. Each Borrower hereby represents and warrants to the Lender that, after
giving effect to this Waiver no Default or Event of Default has occurred and is
continuing as of the date hereof under the Credit Agreement.
9. Each of the Borrowers and the Company hereby warrants and represents to
the Lender that this Waiver Agreement and the other documents contemplated
hereby and all of the actions to be taken in connection herewith or therewith
have been authorized by all necessary corporate and shareholder action and will
not conflict with, violate or constitute a default under their charters, by-laws
or any agreements, instruments or other documents to which they or any one of
them is a party or by which any of their assets are bound and that the same do
not and will not violate any applicable laws or regulations.
10. Without limiting or being limited by Section 8.03(b) of the Credit
Agreement,. the Borrowers jointly and severally, indemnify the Lender andeach
Related Party of the Lender (each such person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of counsel for any Indemnitee, arising out of, in connection with,
or as a result of (i) the execution or delivery of this Waiver
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Agreement or any other Loan Document or any agreement or instrument contemplated
hereby or thereby, or the performance by the parties hereto or thereto of their
respective obligations hereunder or thereunder, or the consummation of the
transactions contemplated hereby or thereby, or (ii) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided, that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by any final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnitee.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver Agreement to
be executed and delivered in the City of New York as of the date first
hereinabove written.
THE CHASE MANHATTAN BANK
By:/s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: V P
UNIDIGITAL ELEMENTS (NY), INC.
By:/s/ Xxxxxxx X. Xxx
-----------------------------------
Name: Xxxxxxx X. Xxx
Title: President
UNISON (NY), INC.
By:/s/ Xxxxxxx X. Xxx
-----------------------------------
Name: Xxxxxxx X. Xxx
Title: Chairman
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UNIDIGITAL ELEMENTS (SF), INC.
By:/s/ Xxxxxxx X. Xxx
-----------------------------------
Name: Xxxxxxx X. Xxx
Title: President
UNISON (MA), INC.
By:/s/ Xxxxxxx X. Xxx
-----------------------------------
Name: Xxxxxxx X. Xxx
Title: Chairman
UNIDIGITAL INC.
By:/s/ Xxxxxxx X. Xxx
-----------------------------------
Name: Xxxxxxx X. Xxx
Title: President
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