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Exhibit 10.35
MORTGAGE OF STOCKS AND SHARES etc
AS SCHEDULED TO SECURE OWN
LIABILITIES
by
CAMINUS LLC
in favour of
FLEET BANK, N.A.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
GPT
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This Mortgage is made on the day of 1999
To: FLEET BANK, N.A. ("the Bank")
1. CAMINUS LLC, a Delaware Corporation having a principal place of
business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("the Company")
has deposited or will deposit with the Bank the securities mentioned in
the Schedule hereto and as beneficial owner(s) hereby charges them to
the Bank together with any substituted securities as a continuing
security for the payment on demand (made at any time after the same
shall have become due or otherwise payable on demand) of the Secured
Liabilities (as hereinafter defined).
This mortgage shall affect and the securities subject hereto shall
include in addition to the securities mentioned in the Schedule hereto
any securities substituted thereof and all dividends or interest paid
or payable after the date hereof on any such securities and all stocks
shares (and the dividends or interest thereon) rights moneys or
property accruing or offered at any time by way of redemption bonus
preference option consolidation sub-division or otherwise to or in
respect of any securities subject hereto.
2. If the Company makes default in paying to the Bank on demand any money
or liability hereby secured the Bank may without further notice sell or
dispose of any securities subject to this mortgage or any part thereof
or any substituted securities in such manner and for such consideration
(whether payable or deliverable immediately or by instalments) as the
Bank may think fit and the Bank may apply the proceeds of sale in or
towards discharge of the costs incurred therein and of the Secured
Liabilities and the residue, if any, shall be paid to the Company or to
its order.
3. Any dividends interest or other payments which are now or at any time
hereafter may be received or receivable by the Bank in respect of any
securities for the time being subject hereto may be applied by the Bank
as though they were proceeds of sale hereunder notwithstanding that the
power of sale may not have arisen.
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4. The Company undertakes from time to time to execute and sign all
transfers withdrawals powers of attorney and other documents which the
Bank may require for perfecting its title to any securities for the
time being subject hereto or for vesting and enabling the Bank to vest
the same in its name or in the name of its nominees or in any Purchaser
and not to do or suffer anything whereby any entitlement of the Bank
under any of the provisions hereof may be impeded or its exercise
delayed.
5. The Company hereby irrevocably appoints the Bank and any person
nominated by the Bank for the purpose of its attorney in its name and
on its behalf at any time after the Bank shall have demanded payment of
any money or liability hereby secured to demand ▇▇▇ for receive and
give an effectual discharge for or in connection with any securities
for the time being subject hereto and to sign seal and deliver and
otherwise perfect any transfer withdrawal deed assurance notice request
or act which may be required or may be deemed proper on or in
connection with any sale disposition, withdrawal, realisation or
getting in by the Bank of any securities for the time being subject
hereto under any power applicable thereto and the Company irrevocably
acknowledges and agrees that the said power of attorney is given to the
Bank to secure the Company's obligations hereunder.
6. The Company declares that the Bank shall not be under any obligation to
take any steps in connection with or incidental to any claim or right
which the Company may for the time being have in relation to any
securities for the time being subject hereto and that the Bank shall be
under no liability by reason of its having abstained from taking any
such steps,
7. The Company will during the continuance of this mortgage pay all calls
and other payments due in respect of any securities for the time being
subject hereto and in the event of default the Bank may if the Bank
think fit make such payments on its behalf. Any sums so paid by the
Bank shall be repayable by the Company on demand together with interest
at the rate of four per cent above the Bank's Base Rate for the time
being in force or at the rate payable by the Company (whichever is the
higher) compounded with rests on such days in each year as the Bank
shall from time to time fix from the date of payment by the Bank and
pending such repayment shall be a charge on the securities for the time
being subject hereto.
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8. The Company will not cause or permit Caminus Limited to (i) increase
its authorised share capital or (ii) issue any additional shares or
capital stock subject hereto without the Bank's prior consent in
writing and that any such consent or consents shall not be deemed to be
a waiver of this mortgage or of any provision hereof.
9. The restriction on the right of consolidating mortgage securities
contained in Section 93 of the Law of Property Act 1925 shall not apply
to this mortgage.
10. The Company hereby acknowledges that so long as this mortgage is
subsisting we are not at liberty to make any transfer withdrawal
nomination or other disposition of any securities for the time being
subject hereto without the Bank's prior consent in writing and that any
such consent or consents shall not be deemed to be a waiver of this
mortgage or of any of the provisions hereof as regards the balance of
any securities for the time being subject hereto following such
transfer, withdrawal, nomination or other disposition.
11. The Bank or its nominees may exercise at its or their discretion (in
the Company's name or otherwise at any time whether before or after any
demand for payment hereunder and without any further consent or
authority on the Company's part) in respect of any securities subject
hereto any voting rights and all powers given to trustees by section
10(3) and (4) of the Trustee Act 1925 (as amended by the Trustee
Investments Act 1961) in respect of securities or property subject to a
trust and any powers or rights which may be exercised by the person or
persons in whose name(s) the securities are registered under the terms
thereof or otherwise.
12. Without prejudice to the rights and obligations hereby created, any
securities, dividends interest or other money hereby charged which may
be received by the Company after the power of sale hereunder has arisen
shall be held in trust for the Bank and transferred or paid to it on
demand.
13. This mortgage is in addition to any guarantee or other security now or
hereafter held by the Bank.
14. Any notice or demand by the Bank hereunder shall be deemed to have been
sufficiently given if sent by prepaid first class letter post to the
address stated herein or to the Company's registered
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office and shall be deemed to have been served upon the addressee at
10.00 a.m. the next succeeding day (or if the next succeeding day be a
Sunday or any other day upon which no delivery of letters is made at
10.00 a.m. on the next succeeding day on which a delivery of post is
made) and in any other case shall be deemed to have been served on the
addressee upon expiry of forty-eight hours from the time of posting of
the same and the aforesaid shall in the service of legal proceedings be
deemed to constitute good service.
15. Each of the provisions of this mortgage shall be severable and distinct
from one another and if at any time any more of such provisions is or
becomes invalid illegal or unenforceable the validity legality and
enforceability of the remaining provisions hereof shall not in any way
be affected or impaired thereby.
16. In this mortgage:
(a) where the context admits the expression "the Bank" shall
include its successors in title and/or assigns.
(b) unless the context requires otherwise:
(i) the singular shall include the plural and vice versa
and
(ii) the expression "this mortgage" shall mean and extend
to every separate and independent stipulation
contained herein and
(iii) the expression "Secured Liabilities" shall mean all
or any monies and liabilities which will for the time
being (and whether on or at any time after demand) be
due, owing or incurred in whatsoever manner to the
Bank by the Company, whether actually or
contingently, solely or jointly and whether as
principal or surety and whether or not the Bank shall
have been an original party to the relevant
transaction, and including interest discount,
commission and other lawful charges or expenses which
the Bank may in the course of its business charge or
incur in respect of any of those matters or for
keeping the account of the
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Company, and so that interest shall be computed and
compounded according to the usual rates and practice
as well after as before any demand made or judgment
obtained under this mortgage and
(iv) any liberty or power which may be exercised or any
determination which may be made hereunder by the Bank
may be exercised or made in the absolute and
unfettered discretion of the Bank which shall not be
under any obligation to give reasons therefor and
(v) references to any statutory provision shall be deemed
to mean and to include a reference to any
modification or re-enactment thereof for the time
being in force and any analogous provision or rule
under any applicable law.
17. This Mortgage will be governed and construed according to English Law
and the parties hereto submit to the non exclusive jurisdiction of the
English Courts.
IN WITNESS whereof this mortgage consisting of this and the two preceding pages
are executed in the manner underwritten
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THE SCHEDULE
Company Name Class of Shares Nominal Value Numbers of shares mortgaged
------------ --------------- ------------- ---------------------------
Caminus Limited Ordinary pound sterling 617
SUBSCRIBED for and on behalf of )
CAMINUS LLC )
(pursuant to a resolution of its Board )
of Directors) by )
Name: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
Dated: June 23, 1999
Accepted by FLEET BANK, N.A. by:
Name: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Dated: June 23, 1999